The Vienna Conventions on the Law of Treaties: A Commentary - INCOMPLETE 0199573522, 9780199573523

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Volume I, Preamble 1969 Vienna Convention Hüseyin Pazarci From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

(p. 1) 1969 Vienna Convention Preamble The States Parties to the present Convention,

Considering the fundamental role of treaties in the history of international relations, Recognizing the ever-increasing importance of treaties as a source of international law and as a means of developing peaceful cooperation among nations, whatever their constitutional and social systems, Noting that the principles of free consent and of good faith and the pacta sunt servanda rule are universally recognized, Affirming that disputes concerning treaties, like other international disputes, should be settled by peaceful means and in conformity with the principles of justice and international law, Recalling the determination of the peoples of the United Nations to establish conditions under which justice and respect for the obligations arising from treaties can be maintained, Having in mind the principles of international law embodied in the Charter of the United Nations, such as the principles of the equal rights and self-determination of peoples, of the sovereign equality and independence of all States, of non-interference in the domestic affairs of States, of the prohibition of the threat or use of force and of universal respect for, and observance of, human rights and fundamental freedoms for all, Believing that the codification and progressive development of the law of treaties achieved in the present Convention will promote the purposes of the United Nations set forth in the Charter, namely, the maintenance of international peace and security, the development of friendly relations and the achievement of cooperation among nations, Affirming that the rules of customary international law will continue to govern questions not regulated by the provisions of the present Convention, Have agreed as follows: A. General 3 Objective and purpose 3 Customary status 5 B. Scope of the preamble 7 Universal respect for, and observance of, human rights 7 Application of international customary law in the absence of other provisions 10

Bibliography Ago, R., ‘Droit des traités à la lumière de la Convention de Vienne’, RCADI, 1971-III, vol. 134, pp 297–331 Basdevant, J. (ed.), Dictionnaire de la terminologie du droit international public (Paris: Sirey, 1960) Bastid, S., Les traités dans la vie internationale, Conclusion et effets (Paris: Economica, 1985) Capotorti, F., ‘L'extinction et la suspension des traités’, RCADI, 1971-III, vol. 134, pp 417–597 Carreau, D., Droit international (2nd edn, Paris: Pedone, 1988) Cassin, R., ‘La déclaration universelle et la mise en œuvre des droits de l'homme’, RCADI, 1951-II, vol. 79, pp 237–367 (p. 2) Cohen-Jonathan, G., ‘De l'universalité des droits de l'homme’, Hommage à RenéJean Dupuy. Ouvertures en droit international (Paris: Pedone, 2000)

Combacau, J., Le droit des traités (Paris: PUF, 1991, Collection ‘Que sais-je?’) Cot, J.-P., Pellet, A., and Forteau M. (eds), La Charte des Nations Unies, Commentaire article par article (Paris: Economica, 2005) Dupuy, P. M., Droit international public (5th edn, Paris: Dalloz, 2000) Elias, T. O., The Modern Law of Treaties (Leiden: Oceana, 1974) Flauss, J.-F., ‘La protection des droits de l'homme et les sources du droit international' in SFDI, Colloque de Strasbourg. La protection des droits de l'homme et l'évolution du droit international (Paris: Pedone, 1998) Goodrich, I. M. and Hambro, E., Commentaire de la Charte des Nations Unies (ed. de la Baconnière, Neuchâtel, 1948) Guggenheim, P., Traité de droit international public, vol. I (2nd edn, Geneva: Librairie de l'Université Georg & Cie, 1967) McNair, Lord A., The Law of Treaties (Oxford: Clarendon Press, 1961) Nguyen Quoc Dinh, Daillier, P., and Pellet, A., Droit international public (7th edn, Paris: LGDJ, 2002) Reuter, P., Introduction au droit des traités (Paris: Armand Colin, 1972) Rosenne, S., The Law of Treaties. A Guide to the Legislative History of the Vienna Convention (Leyden: Sijthoff, 1970) Rousseau, Ch., Droit international public, vol. I (Paris: Sirey, 1970) Salmon, J. (ed.), Dictionnaire de droit international public (Brussels: Bruylant/AUF, 2001) Sinclair, I., The Vienna Convention on the Law of Treaties (2nd edn, Manchester: Manchester University Press, 1984) Treviranus, H.-D., ‘Preamble’ in R. Bernhardt (ed.), Encyclopedia of Public International Law, vol. III (Amsterdam: Elsevier, 1997) UN Conference on the Law of Treaties, 1st and 2nd sessions, Official Documents Wachsmann, P., ‘Les méthodes d'interprétation des conventions internationales relatives à la protection des droits de l'homme’ in SFDI, Colloque de Strasbourg. La protection des droits de l'homme et l'évolution du droit international (Paris: Pedone, 1998) Wolfrum, R., ‘Article 1’ in B. Simma (ed.), The Charter of the United Nations: A Commentary, vol. I (2nd edn, Oxford: Oxford University Press, 2001) ——‘Article 1’ in J.-P. Cot, A. Pellet, and M. Forteau (eds), La Charte des Nations Unies, Commentaire article par article (Paris: Economica, 2005) Yearbook of the International Law Commission, 1966, vol. I, Part Two You, P., Le préambule des traités internationaux (Fribourg: Imprimerie St-Paul, 1941) 1. To start a commentary on the preamble to the Vienna Convention on the Law of Treaties signed in 1969, two facts should be stressed. First, although the Convention is the principal act governing the law of treaties, it does not include any provision on the rules of international law concerning the preambles to treaties. Secondly, during the preparation of the Convention by the International Law Commission (ILC), as usual in these circumstances, no work was conducted on a text of preamble, this being left to the Conference itself.1 (p. 3) 2. Due to the absence of provisions in the Convention and the lack of scientific discussions in the ILC on the preamble to the Convention, a glossator must necessarily draw his evaluation from sources other than the Convention and the ILC discussions. In other words, comments will be based mainly on elements drawn from the official Conference records and relevant international practice and case law.

A. General Objective and purpose 3. Positive international law does not prescribe a single format for treaties. A treaty without a preamble can thus exist in practice.2 However, international practice shows that the vast majority of treaties have a preamble, albeit often succinct. 4. Although no preamble was drafted during the work of the ILC, the possibility of drafting a preamble to the Convention was never specifically excluded.3 Indeed, in the memorandum he presented to the Vienna Conference, the UN Secretary-General expressly envisaged this and suggested that the preamble, and the final provisions which are closely related to substantial provisions of the Convention, be drafted by the Plenary Commission of the Conference following the discussions on such provisions.4 This suggestion being adopted, no text of preamble was submitted to the first session of the Conference and, at the second session, the Drafting Committee was formally tasked with preparing a draft preamble. The Drafting Committee, based on proposals submitted by Mongolia, Romania,5 and Switzerland,6 prepared a draft which was finally retained as the basis for the preamble to the Convention.7 5. It appears that as for any preamble to a treaty, the main objective of this preamble was to provide general information of two types: namely, the list of contracting parties and a statement of the objective and purpose of the Convention.8 6. Usually, the list of contracting parties consists of an enumeration of the States or their representatives such as heads of State, heads of government, ministers, etc.9 However, the preamble to the Convention is in line with contemporary multilateral conventions which opt for a generic designation such as ‘the High Contracting Parties’ or ‘the States Parties to the present Convention’. The latter is the wording retained for the preamble to the 1969 Convention which therefore does not mention either the States or their representatives. (p. 4) 7. Regarding the statement of the objective and purpose of the Convention, in line with the expectations of members of the ILC, it was possible in the preamble to refer to the role and functions of treaties in international relations,10 the foundations of the law of treaties,11 and 12

the fundamental legal principles of the law of treaties,12 as well as to reflect the Commission's intention to ‘set out the rules which already existed in the practice of States and to go on from there to develop international law in the interests of justice and for the benefit of mankind’.13 8. The first objective, set out in the first two paragraphs, relates to the recognition of the role and importance of treaties in international relations. The end of the second paragraph affirms more particularly that treaties are the means of international cooperation among nations ‘whatever their constitutional and social systems’. The purpose of this provision is to stress the universality of treaties and the sovereign equality of contracting States, disregarding any difference of political or social systems. 9. The second objective of the preamble, reflected in its third and fourth paragraphs, is to declare some fundamental principles of international law regarding the law of treaties. This allows the meaning of the substantial provisions of the Convention to be clarified in the context and light of its object and purpose. International case law14 and legal writers15 are unanimous in recognizing that preamble provisions have such effect. This is also confirmed by the Convention itself in Article 31.16

References 10. By recalling these fundamental principles—free consent, good faith, and the pacta sunt servanda rule—the nations intended to reaffirm the existence of ‘rules of international conduct, in the absence of which law and peaceful co-operation between States would be impossible’.17 Concerning the free consent principle, although it is dealt with under various aspects in Articles 48 to 52, certain States deemed it necessary also to declare it in the preamble for the sake of completeness; this being a ‘legal principle which unquestionably had mandatory force’.18 The same idea prevailed for the principle of good faith, even though it is addressed in Article 26 of the Convention,19 following a proposal (p. 5) for its inclusion in the preamble made by Mongolia, Romania,20 and Switzerland.21 The same also holds for the pacta sunt servanda rule.22 11. As for the principle of peaceful settlement of disputes embodied in Articles 1(1), 2(3), and 33 of the UN Charter—where it is listed under Purposes and Principles—the Drafting Committee felt it necessary also to include it in a separate paragraph of the preamble in order to reaffirm this as a major principle of international relations. The paragraph was unanimously adopted by the Conference.23 However, a Swedish amendment proved necessary in order to reflect exactly the wording of Article 1(1) of the Charter by adding ‘in conformity with the principles of justice and international law’ to the wording proposed by the Drafting Committee.24 Although not raised by the Conference, the exact meaning of the condition of conformity of the settlement of disputes to the principle of justice had been questioned by early writers due to the vagueness of the term ‘justice’.25 More recent legal writings have assessed this term as referring to natural law complementing positive international law.26

References 12. The third objective of the preamble, reflected in its fifth, sixth, and seventh paragraphs, aims to highlight the Convention's contribution to the achievement of the objectives of the United Nations. By reaffirming certain principles of the Charter in identical terms, the nations expressed their political and moral intention to contribute to the United Nations' purposes through the law of treaties. In the same way as the fundamental principles of international law declared in the preamble, these paragraphs may be called upon to clarify substantial provisions of the Convention. Commentary on these paragraphs is best found in commentaries on the Charter itself.27

References

Customary status 13. The legal interest of the customary status of any treaty provision depends on whether it is embodied in its preamble or in its body. As stated by the International Court of Justice (ICJ) in its judgment of 20 February 1969 in the North Sea Continental Shelf case: it would in the first place be necessary that the provision concerned should, at all events potentially, be of a fundamentally norm-creating character such as could be regarded as forming the basis of a general rule of law.28 In other words, unless a treaty provision creates a legally binding rule in the framework of the treaty, a fortiori it cannot become a customary rule which would create a legal obligation outside the scope of the treaty.

References (p. 6) 14. Seen from this viewpoint, and keeping in mind the main objective of a preamble, some authors consider that preamble provisions have no binding legal force29 or have a lesser binding value.30 Nevertheless, it does happen on rare occasions that a preamble sets forth provisions having binding legal force.31 Thus, the preamble provisions have a legal interest in two cases, as pointed out by Ch. Rousseau, that is, for the interpretation of the body of a treaty based on its content—allowing for a more accurate understanding of its purpose—and when it includes a supplemental clause aimed at filling any gaps in the treaty.32 The issue of whether a preamble provision has customary status therefore only arises in the latter case, which

involves a specific formal obligation.

References 15. The preamble to the 1969 Convention includes only one paragraph involving a specific formal obligation which could have a customary character. This is the eighth paragraph which states that customary international law will govern questions not regulated by the Convention itself. Various aspects of positive international law show the customary character of this provision. Indeed, it is universally agreed that the law of treaties traditionally consists of customary rules.33 The coexistence and, where relevant, the complementarity of customary rules and conventional international law are demonstrated both in practice34 and in international case law.35 This explains why legal writers state quite openly: Concerning the legal system that will apply after the entry into force of the [1969] Convention, beyond the limits of its efficiency, it can be said without doubt that this will be customary law.36

References 16. Considerations expressed by national delegates at the Conference also support the customary status of the eighth paragraph. Indeed not only did the declarations of the Swiss delegate37 and the Italian delegate38 implicitly refer to the customary nature of this paragraph, but the Bulgarian delegate directly highlighted this by declaring that ‘the rules of customary international law would continue to govern questions not expressly regulated by the provisions of the convention’.39 In the same vein, the Polish delegate considered that the paragraph was ‘restating the rule that customary rules were subsidiary to the treaty rules established in the convention’.40

(p. 7) B. Scope of the preamble 17. Leaving aside, on the one hand, the fundamental principles of international law such as free consent, good faith, and the pacta sunt servanda rule, which are incorporated in several Articles of the Convention and are therefore further commented on elsewhere in this volume and, on the other hand, the principles of international law embodied in the Charter and commented on in related writings,41 the meaning of two other categories of provisions of the preamble need to be clarified. These are, first, the principles of international law formulated differently in the preamble than in the Articles of the 1969 Convention or of the Charter and, secondly, rules which do not appear in either of these instruments. In the present instance, this initially includes the principle of ‘universal respect for, and observance of, human rights and fundamental freedoms for all’ mentioned at the end of the sixth paragraph. A second provision requiring an interpretation is the role of ‘customary international law’ when the Convention is silent, as foreseen in the eighth paragraph of the preamble.

References

Universal respect for, and observance of, human rights 18. The principle for universal respect for, and observance of, human rights was discussed in particular depth during the Conference.42 Although not retained by the Drafting Committee, its inclusion in the text of the preamble was proposed by a joint amendment tabled by Costa Rica and the Netherlands.43 The main objection to this amendment was that this principle had no special link with the Convention.44 A second argument pointed out that unlike the other principles, these words did not appear in Articles 1 and 2 of the Charter but in its Article 55.45 Indeed Article 1, paragraph 3 of the Charter addresses human rights in the context of the achievement of international cooperation by using the words ‘in promoting and encouraging respect for human rights’ whereas Article 55, paragraph (c) provides directly for ‘universal respect for, and observance of, human rights and fundamental freedoms for all…’. In other words, as acknowledged by the Netherlands, the purpose of this principle as reworded is not— as in Article 1 of the Charter—to address the issue of promoting or encouraging respect for human rights as a means of achieving international cooperation but rather to refer to respect for human rights as one of the ‘principles of international law embodied in the Charter’.46 The delegate of the Netherlands was of the opinion that this principle should thus be included in the preamble, which was all the more pertinent as the purpose of its sixth paragraph was to mention the ‘principles of international law embodied in the Charter’ in general and not to list the purposes of the United Nations listed in Article 1 or the principles listed in Article 2.47(p. 8) In any event, the Conference finally adopted the joint proposal by the Netherlands and Costa Rica48 by 93 votes to 0, with 3 abstentions.49

References 19. Albeit with some reluctance, the States participating in the Conference on the Law of Treaties thus confirmed the existence of a direct link between the principle of universal respect for, and observance of, human rights and the 1969 Convention on the Law of Treaties. This link is no longer questioned; as illustrated by several examples in recent writings. For instance, the validity of a reservation to a convention on human rights needs to be assessed against the general rules of the law of treaties concerning the object and purpose of treaties, in order to determine whether the reservation is compliant with the convention.50 The direct

link between the principle of respect for human rights and the 1969 Convention also appears with reference to the rules of the law of treaties concerning the method of interpretation of conventions on human rights.51 But this link is not limited to these two issues. Authors also mention in this regard the link between the protection of human rights and Article 60, paragraph 5 of the 1969 Convention concerning the prohibition of suspension or termination of ‘humanitarian conventions’ deemed to include conventions on human rights.52 An analysis of international case law related to human rights provides further references establishing links with the 1969 Convention. 20. With the inclusion of the principle of respect for human rights in the preamble to the 1969 Convention, it appears that for the States this was without doubt one of the principles of international law embodied in the UN Charter. In this regard, the preamble is of great significance. One should recall that respect for human rights is not mentioned directly as a principle in the UN Charter. Instead, Article 1, paragraph 3 and Article 55 provide textually that respect for human rights needs to be ‘promoted’ or ‘encouraged’. This relates to an objective to be achieved, not to the affirmation of an existing principle. Article 56 of the UN Charter throws additional light on this assessment by stating that ‘Members pledge themselves to take [action] for the achievement of the purposes set forth in Article 55’. For this reason, in the 1950s the authors concluded that the sole concrete obligation laid by the Charter on member States with regard to human rights was to cooperate in universal observance of human rights.53 Therefore the preamble to the 1969 Convention innovates when it clearly proclaims that respect for human rights is a principle under the Charter itself. International case law has subsequently confirmed that the violation of human rights is incompatible with the ‘principles of the Charter of the United Nations’.54

References (p. 9) 21. Reinforcement of the universal observance of human rights, which is manifested in the conclusion of various universal and regional conventions following the UN Charter and also through their interaction,55 is for the first time explicitly confirmed as a principle in the preamble.56 When introducing his proposal, the delegate of the Netherlands pointed out as a rationale that the adoption of these instruments requiring observance of human rights showed that ‘the international community was becoming increasingly aware that effective respect for human rights must be ensured in State practice’.57

References 22. The principle of universal respect for, and observance of, human rights as mentioned in the preamble clearly refers to the need to take these aspects into consideration in drafting future treaties, since the Convention itself concerns the law of treaties. Indeed, Article 31 of the Convention provides for this,58 and stipulates that when interpreting a treaty, the preamble must also be taken into consideration as an element of its context and that interpretation must be carried out in light of the treaty's object and purpose; clearly, this principle must be applied to the interpretation of the substantial provisions of the 1969 Convention.59 23. The main issue to be resolved with regard to interpretation is whether this principle and the other indications included in the preamble call for exceptional treatment of the law of treaties when the latter deal with human rights. The reference to the principle of universal respect for, and observance of, human rights in the preamble is in itself an indication of the specificity of human rights. This was eventually confirmed by international case law. Although authors are divided on this issue when considering the unity of the law of treaties,60 international case law on human rights has placed increasing emphasis on the object and purpose of a treaty and has thereby pushed the overall interpretation process towards recognizing the specificity of conventions on human rights. The European Court of Human Rights had already made reference to the objective and purpose of the European Convention for the Protection of Human Rights and Fundamental Freedoms in its decision of 1 July 1961 in the Lawless case;61 it further pinpointed the purpose of conventions on human rights in its renowned statement first made in its decision of 9 October 1979 in the Airey case, and thereafter repeated in numerous decisions: The Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective. The wish for effectiveness expressed in this formula is clearly reflected in case law that goes beyond the conventional interpretation approach.62 However, the specificity of (p. 10) conventions on human rights which may be drawn from the principle included in the preamble to the Convention has limitations, and care should be taken in interpretation not to contradict the text of the treaty and certainly not to add any rights that the treaty does not contain.

References

Application of international customary law in the absence of other provisions 24. As already stated, the provision concerning application of international customary law for questions not regulated by the Convention was included in the preamble following a proposal tabled by Switzerland63 and after long discussions at the Conference.64 The main objection raised in this regard was that questions not regulated by the Convention would continue to be

governed by all general rules of international law, regardless of their source, that is, not only international customary law but also general principles of law.65 Finally, Switzerland's proposal was adopted by 77 votes, only 6 against, and 11 abstentions.66 25. The discussion on whether to include the eighth paragraph in the preamble to the 1969 Convention requires clarification of the meaning and content of the term ‘international customary law’. As underlined by Mr Yasseen during the Conference, the subject in question belongs to the general theory of law and the general principles of international law,67 and therefore the relationship between international custom and the general principles of law initially need to be clarified. For this reason, it should first be recalled that in accordance with Article 38 of both the Permanent Court of International Justice (PCIJ) and the ICJ Statutes, international custom and the general principles of law are independent sources of international law. That said, one may wish to follow Paul Guggenheim when he suggests that there could be a rule of international customary law under which the general principles of law, taken as a whole, belong to positive international law.68 If this idea is accepted, then ‘the legal validity of the general principles of law could be based on international customary law’.69 Paul Guggenheim further suggests that, even if this cannot be accepted, it would still be possible to consider that ‘certain general principles belong to the overall rules of international customary law’.70 In fact, in line with his views, we may consider that although the general principles of law have not been accepted in toto in international customary law, the fact that international arbitrators apply some general principles without any conventional basis may lead to viewing them as based on customary law.71 The conclusion by Paul Guggenheim was implicitly (p. 11) confirmed by the ICJ in its opinion concerning the Reservations to the Genocide Convention, when the Court stated that ‘the principles underlying the Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligation’.72 We may therefore affirm that the term ‘international customary law’ used in the preamble to the 1969 Convention includes the general principles of law accepted in positive international law. This assertion was not challenged during the Conference, because the discussions on this matter focused solely on the question of inclusion of such a provision in the preamble, without any State raising an objection concerning the applicability of the general principles of law accepted in international law by way of custom.

References 26. Based on the points raised supra, we may conclude that by providing for the application of international customary law to govern questions not regulated by the Convention, the eighth paragraph of the preamble covers both the substantial rules of international customary law and the general principles of law accepted in international law by way of custom. Aspects of the law of treaties which are not addressed in the Convention, and which pertain mainly to State succession in respect of treaties, liability arising from treaties, effects of hostilities or measures taken against an aggressor State which impact on treaties, or issues such as the relationship between treaties and custom remain governed by customary international law.73 As highlighted by F. Capotorti, international customary law can also be used as an additional way of resolving technical matters which are not regulated by the Convention such as causes of extinction or suspension.74 *

HÜSEYIN PAZARCI

Footnotes: 1 S. Rosenne, The Law of Treaties. A Guide to the Legislative History of the Vienna Convention (Leiden: Sijthoff, 1970), p 98. The issue of adding a preamble to the draft Articles concerning the law of treaties was discussed during the 849th meeting of the Commission held on 11 May 1966, with regard to the position of a provision on the rule pacta sunt servanda. Following well-established practice, the Commission chose to leave it to governments to draft a preamble during the Diplomatic Conference: YILC, 1966, vol. I, Part Two, pp 31–8. 2 P. You, Le préambule des traités internationaux (Fribourg: Imprimerie St-Paul, 1941), p 2; S. Bastid, Les traités dans la vie internationale, Conclusion et effets (Paris: Economica, 1985), p 37; D. Carreau, Droit international (2nd edn, Paris: Pedone, 1988), p 100; H.-D. Treviranus, ‘Preamble’ in R. Bernhardt (ed.), Encyclopedia of Public International Law, vol. III (Amsterdam: Elsevier, 1997), p 1097. 3 YILC, 1966, vol. I, Part Two, pp 36 ff (in particular interventions by Messrs Ruda, Lachs, ElErian, Rosenne, de Luna, Tounkine, Amado, and Waldock). 4 S. Rosenne, supra n 1, pp 98–9. 5 A/CONF.39/L.4, UN Conference on the Law of Treaties, 1st and 2nd sessions, Official Records, p 263. 6 A/CONF.39/L.5, ibid. 7 A/CONF.39/18, UN Conference on the Law of Treaties, 2nd session, Official Records, p 80 (in French). 8 Ch. Rousseau, Droit international public, vol. I (Paris: Sirey, 1970), pp 85–8; Nguyen Quoc Dinh, P. Daillier , and A. Pellet, Droit international public (7th edn, Paris: LGDJ, 2002), pp 131– 2, fn 73; J. Basdevant (ed.), Dictionnaire de la terminologie du droit international public (Paris: Sirey, 1960), pp 465–6; J. Salmon (ed.), Dictionnaire de droit international public (Brussels: Bruylant/AUF, 2001), pp 864–5. 9 See eg Lord McNair, The Law of Treaties (Oxford: Clarendon Press, 1961), pp 15–21; H.-D. Treviranus, supra n 2, p 1097.

10 See the interventions by Mr Lach and Mr de Luna, YILC, 1966, vol. I, Part Two, p 32. 11 See Mr El-Erian's intervention, ibid, p 33. 12 See Mr Rosenne's intervention, ibid, p 34. 13 See Mr Amado's intervention, ibid, p 36. 14 eg in its judgment of 27 August 1952 in the US Nationals in Morocco case, the ICJ stated that the interpretation of the Act of Algeciras ‘must take into account its purposes, which are set forth in the Preamble…’: ICJ Reports 1952, p 197. At the same time, the Court declared that it could not adopt a construction which would go beyond the scope of the declared purposes and objects of a treaty as mentioned in its preamble: ibid, p 196. For other examples of international decisions, see I. Sinclair, The Vienna Convention on the Law of Treaties (2nd edn, Manchester: Manchester University Press, 1984), p 128. 15 eg P. Reuter, Introduction au droit des traités (Paris: A. Colin, 1972), p 103; J. Combacau, Le droit des traités (Paris: PUF, 1991, Collection ‘Que sais-je?’), p 33; T. O. Elias, The Modern Law of Treaties (Leiden: Oceana, 1974), pp 74–5; I. Sinclair, supra n 14, pp 127–8; P.-M. Dupuy, Droit international public (5th edn, Paris: Dalloz, 2000), p 250; D. Carreau, supra n 2, p 100. It should be noted however that especially at the beginning of the twentieth century, some English authors opposed giving such a legal interpretational value to the preamble. For the background and a critique of this approach see P. You, supra n 2, pp 13–15. 16 See the commentary on Art. 31 of the 1969 Vienna Convention in this work. 17 See the Romanian delegate's intervention, UN Conference on the Law of Treaties, 2nd session, Official Records, p 171. 18 See the Ecuadorian delegate's intervention, ibid, p 170. 19 See the commentary on Art. 26 in this work. 20 A/CONF.39/L.4, UN Conference on the Law of Treaties, 1st and 2nd sessions, Official Records, p 263. 21 A/CONF.39/L.5, ibid. 22 A/CONF.39/L.4, ibid; A/CONF.39/L.5, ibid. 23 UN Conference on the Law of Treaties, 2nd session, Official Records, p 177. 24 Ibid, p 172. 25 See eg I. M. Goodrich and E. Hambro, Commentaire de la Charte des Nations Unies (ed. de la Baconnière, Neuchâtel, 1948), p 121. 26 R. Wolfrum, ‘Article 1’ in B. Simma (ed.), The Charter of the United Nations: A Commentary, vol. I (2nd edn, Oxford: Oxford University Press, 2001), p 43. 27 See J.-P. Cot, A. Pellet, and M. Forteau, La Charte des Nations Unies, Commentaire article par article (Paris: Economica, 2005); B. Simma (ed.), supra n 26. 28 ICJ Reports 1969, pp 41–3, paras 71–3. Although the Court wrote this sentence in the context of the formation of a customary rule of conventional origin, the same reasoning is applicable to the recognition of customary value to a treaty provision. 29 eg Nguyen Quoc Dinh, P. Daillier, and A. Pellet, supra n 8, p 132, fn 3: ‘In the international order, the preamble of a treaty has no binding force, but it does contribute to the interpretation of the treaty’ (own translation). 30 eg D. Carreau, supra n 2, p 100: ‘Although it does not have the same legal value as the treaty itself… the preamble should not be undervalued in particular when interpreting the body text of a treaty’ (own translation). 31 See some examples of practice in P. You, supra n 2, pp 42–80. International case law also indirectly refers to the binding legal force of some preamble provisions: see eg the ICJ judgment of 27 August 1952 in the US Nationals in Morocco case where it is argued that a principle stated in other legal documents and reaffirmed by the preamble of the General Act of Algeciras ‘was intended to be of a binding character’: ICJ Reports 1952, pp 183–4. 32 Ch. Rousseau, supra n 8, p 87. 33 See eg S. Bastid, supra n 2, pp 8 and 115; Ch. Rousseau, supra n 8, p 62; R. Ago, ‘Droit des traités à la lumière de la Convention de Vienne’, RCADI, 1971-III, vol. 134, pp 297–332. 34 The preambles to the Vienna Conventions on Diplomatic Relations (1961) and on Consular Relations (1963) already include a provision similar to the eighth paragraph of the 1969 Convention. 35 This opinion is, eg, stated by the ICJ in its judgment of 27 June 1986 in the Military and Paramilitary Activities in and against Nicaragua case where the Court declared that the principles of international customary law retain their binding character when incorporated in a treaty, even if their content is identical: ICJ Reports 1986, pp 94–6, paras 176–81. 36 F. Capotorti, ‘L'extinction et la suspension des traités’, RCADI, 1971-III, vol. 134, p 445. 37 UN Conference on the Law of Treaties, 2nd session, Official Records, p 172. 38 Ibid, p 172. 39 Id. 40 Ibid, p 176. 41 The reader may find a comment of these various legal principles in the treaties by L. M Goodrich and E. Hambro, supra n 25, but also more recently, in particular J.-P. Cot and A. Pellet, La Charte des Nations Unies, commentaire article par article (3rd edn, Paris:

Economica, 2005); R. Wolfrum, supra n 26. 42 UN Conference on the Law of Treaties, 2nd session, Official Records, pp 169–78. 43 A/CONF.39/L.42 and Add.1. 44 See eg the intervention of the Uruguayan delegate, UN Conference on the Law of Treaties, 2nd session, Official Records, p 172; the explanations given in support of their votes by the Swedish and the Argentinean delegates respectively, ibid, p 178. 45 See eg the intervention of the Uruguayan delegate, UN Conference on the Law of Treaties, 2nd session, Official Records, p 172; the intervention of the USSR delegate, ibid, p 174. 46 UN Conference on the Law of Treaties, 2nd session, Official Records, p 177. 47 See commentary on Arts 1 and 2 of the Convention in this work. 48 A/CONF.39/L.42 and Add.1. 49 UN Conference on the Law of Treaties, 2nd session, Official Records, p 177. 50 G. Cohen-Jonathan, ‘De l'universalité des droits de l'homme’, Hommage à René-Jean Dupuy. Ouvertures en droit international (Paris: Pedone, 2000), pp 40–2. 51 P. Wachsmann, ‘Les méthodes d'interprétation des conventions internationales relatives à la protection des droits de l'homme’ in SFDI, Colloque de Strasbourg. La protection des droits de l'homme et l'évolution du droit international (Paris: Pedone, 1998), pp 157–95. 52 J.-F. Flauss, ‘La protection des droits de l'homme et les sources du droit international’ in ibid, pp 39–41. 53 R. Cassin, ‘La déclaration universelle et la mise en œuvre des droits de l'homme’, RCADI, 1951-II, vol. 79, p 249. 54 eg the ICJ judgment of 24 May 1980 in the Diplomatic and Consular Staff in Teheran (Substance) case states: Wrongfully to deprive human beings of their freedom and to subject them to physical constraint in conditions of hardship is in itself manifestly incompatible with the principles of the Charter of the United Nations, as well as with the fundamental principles enunciated in the Universal Declaration of Human Rights (ICJ Reports 1980, p 42, para. 91). See also the Advisory Opinion of 21 June 1971 concerning the Legal consequences for the States of South Africa's Continuous Presence in Namibia, ICJ Reports 1971, p 57, paras 129– 31. Furthermore see the ICJ judgment of 27 June 1986 in the Military and Paramilitary Activities in and against Nicaragua case, ICJ Reports 1986, pp 134–5, paras 266–9. 55 On this evolution see J.-F. Flauss, supra n 52, esp. pp 16–24. On universality jurisprudence see G. Cohen-Jonathan, supra n 50, pp 22–35. 56 On the use of references to the 1969 Convention for interpreting provisions of the European and Inter-American Conventions on Human Rights and the International Covenant on Civil and Political Rights, see P. Waschmann, supra n 51, pp 164–70. 57 UN Conference on the Law of Treaties, 2nd session, Official Records, pp 169–70. 58 See commentary on Art. 31 of the Convention in this work. 59 P. Wachsmann, supra n 51, p 165. 60 On opposing legal writings, see J.-F. Flauss, supra n 52, pp 30–1. 61 P. Wachsmann, supra n 51, p 186. 62 Ibid, pp 188–93. 63 A/CONF.39/L.5, UN Conference on the Law of Treaties, 1st and 2nd sessions, Official Records, p 263. 64 UN Conference on the Law of Treaties, 2nd session, Official Records, pp 180–9. 65 See the intervention of the Uruguayan delegate, ibid, p 172; the intervention of the Spanish delegate, ibid, p 173; the intervention of the US delegate, ibid, p 173; the intervention of the Cuban delegate, ibid, p 176; the explanation given by the delegate of Cameroon on his vote, ibid, p 178. 66 Ibid, p 178. 67 UN Conference on the Law of Treaties, 2nd session, Official Records, p 174. 68 P. Guggenheim, Traité de droit international public, vol. I (2nd edn, Geneva: Librairie de l'Université Georg & Cie, 1967), p 297. 69 Ibid. 70 Ibid. 71 Ibid, p 298. Although P. Guggenheim does not mention any example of general principle of law to illustrate his observation, the ICJ judgment of 20 December 1974 in the Nuclear Tests (Australia/France) case provides an example where it states: ‘One of the basic principles governing the creation and performance of legal obligations, whatever their source, is the principle of good faith’ (ICJ Reports 1974, p 268, para. 46). 72 ICJ consultative opinion of 28 May 1951, ICJ Reports 1951, p 23. 73 F. Capotorti, supra n 36, pp 443–5. 74 Ibid, pp 446–7. * Professor of international law; Turkish Ambassador (ret.). Translated by Isabelle Tezcan.

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Volume I, Preamble 1986 Vienna Convention Eric David From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

(p. 12) 1986 Vienna Convention Preamble The Parties to the present Convention, Considering the fundamental role of treaties in the history of international relations [1],1 Recognizing the consensual nature of treaties and their ever-increasing importance as a source of international law [2], Noting that the principles of free consent and of good faith and the pacta sunt servanda rule are universally recognized [3], Affirming the importance of enhancing the process of codification and progressive development of international law at a universal level [4], Believing that the codification and progressive development of the rules relating to treaties between States and international organizations or between international organizations are means of enhancing legal order in international relations and of serving the purposes of the United Nations [5], Having in mind the principles of international law embodied in the Charter of the United Nations, such as the principles of the equal rights and self-determination of peoples, of the sovereign equality and independence of all States, of non-interference in the domestic affairs of States, of the prohibition of the threat or use of force and of universal respect for, and observance of, human rights and fundamental freedoms for all [6], Bearing in mind the provisions of the Vienna Convention on the Law of Treaties of 1969 [7], Recognizing the relationship between the law of treaties between States and the law of treaties between States and international organizations or between international organizations [8], Considering the importance of treaties between States and international organizations or between international organizations as a useful means of developing international relations and ensuring conditions for peaceful cooperation among nations, whatever their constitutional and social systems [9], Having in mind the specific features of treaties to which international organizations are parties as subjects of international law distinct from States [10], Noting that international organizations possess the capacity to conclude treaties, which is necessary for the exercise of their functions and the fulfilment of their purposes [11], Recognizing that the practice of international organizations in concluding treaties with States or between themselves should be in accordance with their constituent instruments [12], Affirming that nothing in the present Convention should be interpreted as affecting those relations between an international organization and its members which are regulated by the rules of the organization [13], Affirming also that disputes concerning treaties, like other international disputes, should be settled, in conformity with the Charter of the United Nations, by peaceful means and in conformity with the principles of justice and international law [14], Affirming also that the rules of customary international law will continue to govern questions not regulated by the provisions of the present Convention [15], Have agreed as follows: A. General characteristics 13 B. Object 14 (p. 13) C. Interpretation of the preamble 14

First paragraph 14 8th preambular recital 15 10th preambular recital 15 11th preambular recital 15 12th preambular recital 16 13th preambular recital 17

Bibliography Manin, Ph., ‘La Convention de Vienne sur le droit des traités entre Etats et organisations internationales ou entre organisations internationales’, AFDI, 1986, pp 454–73 Zemanek, K., ‘The UN Conference on the Law of Treaties Between States and International Organisations or Between International Organisations: The unrecorded history of its “general agreement” ’ in Liber Amicorum honouring I. Seidl-Hohenveldern (Cologne: Heymann, 1988), pp 665–79

A. General characteristics 1. The preparatory work of the 1986 Vienna Convention provides very little explanation regarding its preamble. Despite the fact that, according to a participant in the travaux at the Conference,2 it was ‘an essential issue of the negotiations’, the debate did not leave much trace. Two proposals were presented; one by Brazil and India, the other by the German Democratic Republic, Ukraine, and Czechoslovakia.3 Those two proposals were compiled and developed by the Committee of the Whole in combination with other informal proposals,4 following which the text was subject to stylistic changes and adopted. The summary records do not echo5 in any way the ‘intense…negotiations’ preceding the adoption of the text6 and, consequently, those travaux are not of any assistance for the interpretation of the preamble. 2. The preamble is composed of 15 preambular recitals, in addition to an initial paragraph that is not, strictly speaking, a paragraph. In harmony with the general policy of the creators of this Convention to follow as accurately as possible that of 1969,7 preambular recitals 1 (historical role of treaties), 3 (universality of the principle pacta sunt servanda), 6 (reminder of principles of international law within the Charter of the United Nations), 14 (pacific settlement of disputes), and 15 (applicability, on a suppletive basis, of customary law to treaties) are identical copies of recitals 1, 3, 6, 4, and 8 of the preamble to the 1969 Convention, respectively. Preambular recitals 5 (enhancing legal order in international relations through the codification of the rules relating to treaties) and 9 (importance of treaties for the development of international relations and cooperation (p. 14) between States) are, except for minor drafting details, similar to recitals 7 and 2 of the 1969 Vienna Convention, respectively. 3. The fifth preambular recital of the 1969 Vienna Convention8 does not have a corresponding recital within the preamble to this Convention. The preparatory work of the 1986 Convention does not explain the absence of this recital, which in any case should not cause much trouble to the world order. 4. The remaining preambular recitals (2, 4, 7, 8, 10–13), as well as the first paragraph, are new. However, they do not all present the same interest. For example, preambular recitals 2, 4, and 7 appear essentially as common form drafting clauses stating obvious facts. Therefore, they will not be discussed within the framework of the commentary on this preamble, which will only deal with preambular recitals 8 and 10 to 13 of the preamble to the 1986 Convention.9 The commentary on the preamble to the 1969 Convention may be referred to for a commentary on the preambular recitals common to the two Conventions.10

B. Object 5. As any other preamble, its aim is to specify the grounds for the Convention, that is, its object and purpose.11 6. Furthermore, this preamble appears as a mix of fundamental notions on the law of treaties —consensualism, capacity of international organizations to conclude treaties, specificity of treaties concluded by international organizations, conformity of treaty practice with the constituent act of each organization, primacy of the law of international organizations over the 1986 Convention (preambular recitals 2, 10–13)—and of practical considerations—will to codify international law, relation between the 1986 and 1969 Conventions (preambular recitals 4, 7–8); all of which is mixed with hollow, solemn formulations full of good intentions, as are often found in the preambles to great multilateral treaties.

C. Interpretation of the preamble First paragraph The Parties to the present Convention 7. The only difference with the 1969 Convention, and understandably so, is that it speaks of ‘parties’ instead of ‘States parties’ because this Convention is open to both international organizations and States.12

(p. 15) 8th preambular recital

Recognizing the relationship between the law of treaties between States and the law of treaties between States and international organizations or between international organizations 8. Similar to that which precedes it, this preambular recital suggests that the interpretation of provisions of the 1986 Convention may certainly draw inspiration from that given to the provisions of the 1969 Convention. In fact, in the draft Articles which served as the basis for the 1986 Convention, the ILC simply observed with regard to numerous provisions that they were the transposition mutatis mutandis of those found within the 1969 Convention.13

10th preambular recital Having in mind the specific features of treaties to which international organizations are parties as subjects of international law distinct from States 9. In as much as the preamble to a treaty notably serves to explain the reasons for its adoption, the presence of this preambular recital is fully justified. Since treaties concluded by international organizations have certain features which distinguish them from those concluded by States, the adoption of a specific convention is therefore justified. Some examples of such specificity are: • as the notion of ‘ratification’ is not very well known in treaty practice of international organizations, 14 the term ‘act of formal confirmation’ was used instead (Art. 2(1)(b bis); Art. 14(2)); • the representation of an organization (by its highest ranking official or by the people who have been given that mandate) is not as well established as for States, given the broad range of organizations that exist. 15 Hence the necessity to foresee appropriate solutions which are not exactly the same as for States (see Art. 7(3)); • when an international organization concludes a treaty in violation of its internal law (Art. 46), the notion of manifest violation may vary according to whether the treaty is concluded with a member State or a non-member State of the organization, 16 etc. Thus, this preambular recital explains the reason for the adoption of the 1986 Convention.

11th preambular recital Noting that international organizations possess the capacity to conclude treaties, which is necessary for the exercise of their functions and the fulfilment of their purposes 10. This preambular recital recalls a twofold fundamental rule of the law of international organizations which nowadays is undisputed; namely, on the one hand, that international organizations by definition have a distinct legal personality17 and, on the other hand, (p. 16) that this personality implies a jus tractati, which although it may not have been expressly provided for in the constituent act of the organization, follows from the theory of implicit powers.18 The capacity of international organizations to conclude treaties is, in addition, established in Article 6 of the 1986 Vienna Convention.19

References

12th preambular recital Recognizing that the practice of international organizations in concluding treaties with States or between themselves should be in accordance with their constituent instruments 11. This preambular recital provides that the treaty practice of international organizations ‘should be in accordance with their constituent instruments’. In other words, when the international organization concludes a treaty, it should respect its constituent act. The latter is, however, subject to interpretation, which shows its capacity to evolve. 12. It is worth noting that the initial draft paragraph presented by the German Democratic Republic, Ukraine, and Czechoslovakia stated that ‘practice of international organizations shall be in full accordance with their constituent instruments’.20 That constitutional rigidity was not accepted, as shown by the new draft of this preambular paragraph which replaced the present indicative by the conditional to indicate that the practice of international organizations ‘should’ be in conformity with the constituent act.21 13. The recognized implied capacity of an international organization to take some freedoms with its constituent act is confirmed in Article 2(1)(j) of the 1986 Convention, which includes in the ‘rules of the organization’ not only its constituent instrument and the derived law based on it, but also ‘the well established practice of the organization’.22 14. In its advisory opinion in the Reparations case (1949), the International Court of Justice (ICJ) had already incidentally recognized that in practice, the international organization could generate the development of the constituent instrument, rather than simply apply it: … the rights and duties of an entity such as the Organization [of the United Nations] must depend upon its purposes and functions as specified or implied in its constituent documents and developed in practice.23

Along the same lines, Judges Alvarez and Azevedo stated in a joint dissenting opinion in the 1950 case regarding the Competence of the General Assembly for the Admission of a State to the United Nations that: A treaty or a text that has once been established acquires a life of its own. Consequently, in interpreting it we must have regard to the exigencies of contemporary life, rather than to the intentions of those who framed it.24

References (p. 17) 15. Notwithstanding, the independence of the organization in respect of its constituent act must not be overstated. For example, deciding on the request for an advisory opinion on the Legality of the Threat of Use of Nuclear Weapons (1996), the ICJ considered that the resolution by which the World Health Organization (WHO) requested that opinion did not constitute a practice allowing the conclusion that the WHO's Constitution had been modified and that this authorized the Organization to examine that type of problem.25 Hence, the organization is free, but its freedom is nuanced.

References

13th preambular recital Affirming that nothing in the present Convention should be interpreted as affecting those relations between an international organization and its members which are regulated by the rules of the organization 16. The essence of this preambular recital is that the Convention does not affect the rules of the organization regulating the relations between the organization and its member States. The introduction of this rule, following the request by the international organizations present at Vienna, notably the EEC,26 confirmed that the 1986 Convention functions as a lex generalis without prejudice to the lex specialis which is the law of the organization itself.27 In addition, this conforms to other references to the aforementioned lex specialis envisaged by the Convention in some of its provisions (eg Arts 5 in fine, 6, 39(2), 46(2), 65(4), 74(3), etc).28 *

ERIC DAVID

Footnotes: * Professor Emeritus, Université libre de Bruxelles (ULB), Brussels, Belgium. 1 In order to facilitate the commentary on the preamble, the preambular recitals have been numbered. 2 Ph. Manin, ‘La Convention de Vienne sur le droit des traités entre Etats et organisations internationales ou entre organisations internationales’, AFDI, 1986, p 456. 3 Conference of the United Nations on the law of treaties between States and international organizations or between international organizations, Vienna, 18 February–21 March 1986, Official Records, 1995, vol. II, p 80. 4 Ibid. 5 Official Records, vol. I, pp 20–1 and 203. 6 Ph. Manin, supra n 2, p 458. 7 Cf ACDI, 1982, vol. II, Part Two, p 13. 8 Preamble to the 1969 Vienna Convention, 5th preambular paragraph: ‘Recalling the determination of the peoples of the United Nations to establish conditions under which justice and respect for the obligations arising from treaties can be maintained’. 9 See infra paras 7 ff. 10 See the commentary on this provision in this work. 11 J. Basdevant (ed.), Dictionnaire de la terminologie du droit international (Paris: Sirey, 1960), p 465; J. Salmon (ed.), Dictionnaire de droit international public (Brussels: Bruylant/AUF, 2001), p 864. 12 See in addition, for the definition of the term ‘party’, Art. 2(1)(g) of the 1986 Convention. 13 See eg the commentaries on Arts 4, 8, 10, 12, 13, 16–19, 21–26, etc. in ACDI, 1982, vol. II, Part Two, pp. 22 ff. 14 Ibid, p 19. 15 Ibid, pp 26–7. 16 Ibid, p 54. 17 H. G. Schermers and N. M. Blokker, International Institutional Law (The Hague: Martinus Nijhoff, 1995), paras 1559 ff; E. David, Droit des organisations internationales (15th edn, Brussels: PUB, 2003–4), pp 14 ff, 319 ff and references; Ph. Sands and P. Klein, Bowett's Law of International Institutions (5th edn, London: Sweet & Maxwell, 2001), pp 469 ff. 18 Judgment of 11 April 1949, Reparation for Injuries Suffered in the Service of the United Nations, ICJ Reports 1949, p 179; E. David, supra n 17, pp 85–9 and 324–7. 19 See the commentary on this provision in this work.

20 Official Records, vol. II, p 80, emphasis added. 21 Cf K. Zemanek, ‘The UN Conference on the Law of Treaties Between States and International Organisations or Between International Organisations: The unrecorded history of its “general agreement” ’ in Liber Amicorum honouring I. Seidl-Hohenveldern (Cologne: Heymann, 1988), p 672. 22 Ph. Manin, supra n 2, pp 457–8. 23 Judgment of 11 April 1949, Reparation for Injuries Suffered in the Service of the United Nations, ICJ Reports 1949, p 180, emphasis added. 24 Competence of the General Assembly for the Admission of a State to the United Nations, Dissenting Opinion of Judges Alvarez and Azevedo, ICJ Reports 1950, p 18. 25 Advisory Opinion of 8 July 1996, Legality of The Threat or Use of Nuclear Weapons, ICJ Reports 1996, p 81, para. 26. 26 Ph. Manin, supra n 2, p 459. 27 Ibid. 28 Cf K. Zemanek, supra n 21, p 673.

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Volume I, Part I Introduction, Art.1 1969 Vienna Convention Philippe Gautier From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Treaties, scope (temporal and territorial) — UNCLOS (UN Convention on the Law of the Sea)

(p. 20) (p. 21) 1969 Vienna Convention Article 1 Scope of the present Convention The present Convention applies to treaties between States. A. General characteristics 21 Object and purpose 21 History and status of the provision 22 B. Interpretation issues 24 ‘Treaty between States’ 24 Article 3(c) and the issue of ‘trilateral’ and ‘mixed’ agreements 26

Bibliography Vierdag, E., ‘Some Remarks on the Relationship between the 1969 and the 1986 Vienna Conventions on the Law of Treaties’, Archiv des Völkerrechts, 1987, pp 82–91

A. General characteristics Object and purpose 1. The title of Article 1 (‘Scope of the present Convention’) describes the object of this provision and also determines its limits. It does not set up a substantive rule applicable to treaties but simply defines the scope of the Vienna Convention by specifying that the Convention applies to treaties between States. 2. According to the International Law Commission (ILC) ‘the sole but important purpose of this provision is to underline at the outset that all the Articles which follow have been formulated with particular reference to treaties concluded between States and are designed for application only to such treaties’.1 This objective could also have been achieved by incorporating this specification into the definition of a treaty in Article 2 of the Convention. This possibility was examined by the Commission, ‘but considerations of emphasis and of drafting convenience led it to conclude that the definition of the scope of the draft Articles in the first Article is desirable’.2 3. Article 1 has to be read in its context, in particular Articles 2 and 3 of the Convention.3 The link between the first three Articles was expressed in the 1966 ILC report, namely in the commentary on Article 1 of the Convention: This provision defining the scope of the present Articles as relating to ‘treaties concluded between States’ has to be read in close conjunction not only with article 2(1)(a), which states the meaning (p. 22) with which the term ‘treaty’ is used in the Articles, but also with article 3, which contains a general reservation regarding certain other categories of international agreements.4 The main object of Article 3 was to underline that ‘the elimination of the references to treaties of “other subjects of international law” and of “international organizations”…is not to be understood’ as affecting the legal force of such agreements.5

History and status of the provision 4. The objective of the provision is to clarify the scope of application of the Convention. In this respect, it is worth recalling the reasons for the Commission's decision to prepare a draft relating only to treaties between States, while being perfectly aware of the fact that there are international agreements between other subjects of international law. 5. When dealing with the question of treaties concluded by entities other than States, the members of the Commission clearly had the treaties concluded by international organizations in mind as the main issue. Initially, in 1950, ‘a majority of the Commission were…in favour of including in its study agreements to which international organizations are Parties’.6 The issue of the capacity of international organizations to conclude treaties was the subject of long discussions which led to a ‘general agreement that, while the treaty-making power of certain organizations is clear, the determination of the other organizations which possess capacity for making treaties would need further consideration’.7 This is the reason why the Commission decided in 1951 that it should leave aside, for the moment, the question of the capacity of international organizations to make treaties, that it should draft the Articles with reference to States only and that it should examine later whether they could be applied to international organizations as they stood or whether they required modification.8 6. This decision was not intended, however, to exclude the agreements of international organizations from the draft. In fact, reference was made to this type of agreement by several Rapporteurs,9 including H. Lauterpacht who expressly declared himself in favour of their inclusion in the draft.10 Furthermore, Article 2 of the draft Articles adopted (p. 23) by the

Commission in 1959 and entitled ‘Meaning of an international Agreement’, refers to agreements concluded between two or more States or ‘other subjects of international law’.11 That said, in its commentary, the ILC recalls the decision made in 1951 and continues by stating that The case of international organizations will in any event require a separate study. Thereafter, either the existing Articles of the Code must be modified to cover it, or a separate chapter to deal with that case can be added.12 7. Following the comments made by governments on the draft of the Commission,13 H. Waldock proposed to draw the logical consequences of the ILC's decision in 1951, ie to ‘eliminate from it the reference to treaties concluded by subjects of international law other than States’.14 Confirming in this respect the proposal of the Special Rapporteur, the Commission considered it essential to avoid any possibility that the limitation of the draft Articles to treaties concluded between States might be construed as denying the legal force of such other of treaties or the application to them of principles set forth in the draft Articles which would applicable to them under general international law.15 A new provision was therefore inserted into Article 2 (‘Treaties and other international agreements not within the scope of the present Articles’) specifying that the fact that the draft related only to treaties between States concluded in written form should not affect the legal force of treaties not fulfilling these criteria.16 8. The decision to limit the draft to treaties between States sparked off numerous comments within the Sixth Committee as the General Assembly examined the ILC reports in 196517 and 1966.18 While several delegations approved or understood the position taken by the Commission, others regretted the decision because, in their opinion, it was important to regulate the increasing number of treaties concluded by international organizations and by other subjects of international law.19 This explains the fact that two (p. 24) amendments were proposed during the Vienna Conference (26 March–24 May 1968) in order to enlarge the scope of the Convention to agreements concluded by other subjects of international law.20 These proposals were discussed at considerable length within the Conference21 and the majority of speakers acknowledged that it was preferable at this stage not to seek to amend the draft with respect to this issue so as not to delay the work of the Conference.22 Hence, a compromise solution proposed by the delegation of Sweden was to adopt a resolution recommending the General Assembly to refer the question of treaties concluded between States and international organizations or between two or more international organizations to the ILC. The draft resolution was approved by the Conference and annexed to the final act of the Vienna Conference.23

B. Interpretation issues 9. The 1969 Convention applies to ‘treaties between States’. The provision is clear at first glance. However, it does not mean that every treaty between States is ipso facto governed by the Convention. Indeed, as a conventional instrument, the Convention is mandatory only for States that are parties to it. That said, it is not required that all States parties to a treaty should also be parties to the Convention for the latter to apply to the treaty in question.24 Thus, when certain States parties to a treaty are parties to the Convention while other States are not, the Convention is applicable to the relations between States that are parties to the Convention, while the relations with or between the States which are not parties to the Convention remain governed by customary international law. 10. The Convention applies to a treaty which qualifies as a ‘treaty between States’. This may be problematic with respect to ‘trilateral’ or ‘mixed’ agreements.

‘Treaty between States’ 11. Since the Convention applies to ‘treaties between States’ and ‘does not apply to international agreements concluded between States and other subjects of international law’ (p. 25) (Art. 3), it is important to determine whether the treaty in question meets the qualification of a ‘treaty between States’. In this regard, the question may be asked as to whether this qualification is to be made on the basis of the legal status of the parties to the treaty (only States are parties to it) or of all entities entitled to accede to the treaty even if they are not yet parties to it. This situation would occur, for example, in the case of a treaty which is signed by an international organization that is not yet a party to it. As an illustration, one could refer to the United Nations Convention on the Law of the Sea. Only States were parties to the Convention until 1 May 1998 when the Convention entered into force for the European Community. According to the first approach, based on the parties to the treaty, the Convention on the Law of the Sea was first subject to the provisions of the Vienna Convention of 1969 before being governed by the Vienna Convention of 1986. Under the second approach, the Convention on the Law of the Sea would never have been governed by the 1969 Vienna Convention for the reason that it was open to the participation of entities other than States. 12. In favour of the first approach,25 reference may be made to Article 3(c) of the 1969 Vienna Convention. This provision states that the fact that the Convention does not apply ‘to international agreements concluded between States and other subjects of international law’ shall not affect the application of the Convention to the relations of States as between themselves under agreements ‘to which other subjects of international law are also Parties’ (emphasis added). A contrario, Article 3(c) seems to indicate that the only hypothesis where the Convention would not be applicable is that of agreements between States when other 26

subjects of international law are parties to it.26 13. However, this approach does not seem convincing27 as many of the provisions included in the Vienna Conventions relate to issues that arise before a treaty enters into force or before the consent to be bound by its provisions is given. One example is Article 18 relating to the legal effect of the signature of a treaty before its entry into force. Such provisions apply before an entity becomes ‘party’ to the treaty. This point was underlined with respect to draft Article 1 by the Swedish representative during the Vienna Conference who ‘did not think it was correct to state that the convention related to treaties between States, when in fact it also applied to the conclusion of such treaties’.28 Admittedly, in the example of the United Nations Convention on the Law of the Sea, it would be rather strange to qualify this convention as a ‘treaty between States’ until its entry into force with regard to the European Community, although Annex IX of the Convention specifically addresses the question of the participation of international organizations and explicitly provides for the participation of other subjects of international law. 14. Article 1 is not the only provision relevant to the determination of the scope of the 1969 Vienna Convention. In fact, the Convention operates a distinction between, on the (p. 26) one hand, the law applicable to a treaty which is based on Article 1 and, on the other hand, the law applicable to the relations between States parties to that treaty which is the subject of a specific provision, namely Article 3(c) of the Convention.

Article 3(c) and the issue of ‘trilateral’ and ‘mixed’ agreements 15. The particular attention paid by the ILC and the Vienna Conference to the scope of the 1969 Convention was generated by the consideration of agreements known as ‘trilateral’ and ‘mixed’ agreements.29 Trilateral agreements are concluded between two States and an international organization, ‘the positions of the three Parties or groups of Parties not being the same in relation to the treaties’. An example of such a treaty is given by Paul Reuter who refers to the ‘agreements concluded for the supply of fissionable material between two States (one supplying and other receiving) and IAEA (which supervises)’.30 The term ‘mixed agreement’ is more general and covers treaties between States to which two or more international organizations are also parties. Given the specific contractual relations between the States parties to such agreements that are distinct from the relations between these States and the international organization(s) concerned, the question arose whether the relations between the States parties to these agreements would be governed by the draft 1969 Convention. Although the draft was designed to govern treaties concluded between States, the Commission stated that it would be possible to apply to this type of agreement any of the rules set forth in the Articles ‘to which they would be subject independently of these Articles’,31 ie under general international law. 16. The question was raised once more by certain delegations at the Vienna Conference.32 Sir H. Waldock, Expert Consultant, intervened to clarify that the draft provisions did not apply to treaties between States and international organizations and that trilateral treaties were thus not covered.33 A new sub-paragraph (c) was added to Article 3 by the Drafting Committee ‘in order to clarify a point, as appeared to be desired by certain delegations’.34 This addition, ‘following a quite spontaneous initiative’35 intended to avoid that trilateral or mixed agreements be excluded from the scope of the Convention. Indeed, the provision allows the application of the 1969 Convention to the relations between States parties to such treaties. Sub-paragraph (c) explicitly clarifies this point by stating that the fact that the Convention does not apply to international agreements concluded between States and other subjects of international law shall not affect ‘the application of the Convention to the relations of States as between themselves under international agreements to which other subjects of international law are also Parties’. This hypothesis must be distinguished from the one set out in subparagraph (b) of Article 3,36 which recognized the possibility of applying the rules set forth in the Convention to agreements concluded between States and other subjects of international law pursuant to general international law. (p. 27) 17. Article 3(c) thus has the effect of opening the scope of the Convention to the relations between States parties to an international agreement that is not stricto sensu governed by the Convention pursuant to its Article 1. This provision entails certain consequences in respect of treaties between States and international organizations which will be the subject of further elaboration in the comment on Article 1 of the 1986 Convention. *

PHILIPPE GAUTIER

Footnotes: 1 YILC, 1966, vol. II, p 187. 2 Ibid, p 187. 3 See the commentary on Arts 2 and 3 of the Convention in the present work. 4 YILC, 1966, vol. II, p 187. 5 Ibid, p 187. 6 Report of the ILC to the General Assembly, YILC, 1950, vol. II, para. 162; see also YILC, 1950, vol. I, 2nd session, 52nd meeting, 22 June 1950, para. 75. 7 Report of the ILC to the General Assembly, YILC, 1950, vol. II, para. 162. 8 YILC, 1951, vol. I, 3rd session, 98th meeting, 7 June 1951, para. 1. The decision is recalled in the Report of the ILC to the General Assembly covering the work of its 11th session, YILC, 1959, vol. II, pp 89 and 96.

9 Thus, the various drafts drawn up by J. L. Brierly, H. Lauterpacht, and G. G. Fitzmaurice contained provisions referring specifically to treaties concluded between international organizations or between international organizations and a State. See eg Art. 1(a) of the draft Convention on the Law of Treaties presented by J. L. Brierly in 1950 (A/CN.4/23), YILC, 1950, vol. II, p 223; Art. 1(b) of the revised Articles of the draft Convention in the Second Report presented by J. L. Brierly in 1951 (A/CN.4/43), YILC, 1951, vol. II, p 70; Art. 1 of the draft presented by H. Lauterpacht in his report of 1953 (A/CN.4/63), YILC, 1953, vol. II, p 90; Art. 1 of the draft presented by H. Lauterpacht in 1954 in his Second Report (A/CN.4/87), YILC, 1954, vol. II, p 123; see Art. 1 (‘scope’) para. 3 of the draft elaborated in 1956 by G. G. Fitzmaurice, A/CN.4/101, YILC, 1956, vol. II, p 105. 10 Moreover, H. Lauterpacht declared himself clearly in favour of the inclusion of such treaties into the scope of the draft. Thus, in the report he presented in 1953 H. Lauterpacht, after recalling the view provisionally adopted by the Commission in 1950 and 1951, submits that this view needs revision; see A/CN.4/63, YILC, 1953, vol. II, pp 99–100. 11 YILC, 1959, vol. II, p 96. The commentary expressly refers to international organizations ‘such as the United Nations’. 12 YILC, 1959, vol. II, p 96. 13 See esp. the observation made by Finland mentioned by the Special Rapporteur in his Fourth Report (A/CN.4/177 of 1965), YILC, 1965, vol. II, p 10. For the text of the observation, see YILC, 1966, vol. II, p 291. See also A/CN.4/177 and Add.1 and 2, YILC, 1965, vol. II, pp 3 ff. 14 YILC, 1965, vol. II, p 12. 15 A/6009, YILC, 1965, vol. II, para. 21. 16 See the Report of the ILC to the General Assembly, YILC, 1965, vol. II, p 160, as well as the revised draft Articles (A/CN.4/L.117 and Add.1, YILC, 1966, vol. II, p 112). 17 See the Report of the ILC, Official Records of the General Assembly, 20th session, Supplement No. 14 (A/6014), Res. A/6090, p 88. 18 See the Report of the ILC, Official Records of the General Assembly, 21st session, Supplement No. 16 (A/6316), Res. A/6516, p 96. 19 Regarding interventions approving or understanding the decision of the Commission, see the following comments: 843rd meeting (7 October 1965), Hungary; 848th meeting (12 October 1965), Romania; 849th meeting (13 October 1965), Iraq; 850th meeting (13 October 1965), Finland; 852nd meeting (14 October 1965), Lebanon; 905th meeting (7 October 1966), Ghana; 907th meeting (11 October 1966), Hungary and Turkey; 909th meeting (12 October 1966), Bolivia; 912th meeting (18 October 1966), Iran. For interventions regretting the decision of the Commission see 842nd meeting (6 October 1965), Yugoslavia (see also the written observations of Yugoslavia of 31 December 1965, YILC, 1966, vol. II, pp 359, 360), Jordan; 843rd meeting (7 October 1965), Uganda; 850th meeting (13 October 1965), Ceylon; 908th meeting (12 October 1966), Ceylon; 910th meeting (14 October 1966), Cyprus; 911th meeting (17 October 1966), Sierra Leone and Kuwait; 912th meeting (18 October 1966), Liberia, Dahomey, and Tanzania. 20 Amendments submitted by the United States (A/CONF.39/C.1/L.15) and by Vietnam (A/CONF.39/C.1/L.27). For the text of the proposed amendments see UN Conference on the Law of Treaties, 1st and 2nd sessions, Official Records, vol. III, p 110. 21 UN Conference on the Law of Treaties, 1st session, Official Records, vol. I, pp 11–20, see the comments made by the representatives of the following countries: India, Ivory Coast, Cyprus, Ceylon, Jamaica, USSR, Tanzania, Australia, Canada, Sweden, Trinidad and Tobago, France, Uruguay, United Kingdom, Romania, Czechoslovakia, Ghana, Argentina, Afghanistan, Sierra Leone, Finland, Switzerland, Liberia, Bulgaria, Turkey, Republic of Korea, Federal Republic of Germany, Iraq, Japan. 22 UN Conference on the Law of Treaties, 1st session, Official Records, vol. I, pp 11–20, see the comments made by the representatives of the following countries: India, Ivory Coast, Cyprus, Ceylon, Jamaica, USSR, Tanzania, Australia, Canada, Sweden, Trinidad and Tobago, France, Uruguay, United Kingdom, Romania, Czechoslovakia, Ghana, Argentina, Afghanistan, Sierra Leone, Finland, Switzerland, Liberia, Bulgaria, Turkey, Republic of Korea, Federal Republic of Germany, Iraq, Japan. 23 For the text of the resolution see the Final Act of the UN Conference on the Law of Treaties, 1st and 2nd sessions, Official Records, vol. III, p 285. The purview of the resolution reads as follows:

Recommends to the General Assembly of the United Nations that it refer to the International Law Commission the study, in consultation with the principal international organizations, of the question of treaties concluded between States and international organizations or between two or more international organizations. 24 Cf E. Vierdag, ‘Some Problems Regarding the Scope of International Instruments on the Law of Treaties’, Archiv des Völkerrechts, 1985, pp 422–4. 25 G. Gaja, ‘A “new” Vienna Convention on treaties between States and international organizations or between international organizations: a critical commentary’, BYBIL, 1987, p 255; see also E. Vierdag, ‘Some Remarks on the Relationship between the 1969 and the 1986 Vienna Conventions on the Law of Treaties’, Archiv des Völkerrechts, 1987, pp 83–6, who refers (p 84) to the statement of the UK delegation relating to the 1986 Convention and envisaging the possibility of a treaty between States first being governed by the 1969 Convention but the latter ceasing to apply once an international organization accedes to the

treaty. 26 Similarly, Art. 3(i) of the 1986 Convention provides that the Convention ‘does not apply to international agreements to which one or more States, one or more international organizations and one or more subjects of international law other than Sates or organization are Parties’. 27 Contra G. Gaja, supra n 25. 28 UN Conference on the Law of Treaties, 1st session, Official Records, vol. I, p 11. 29 For this issue, see E. Vierdag, supra n 24, pp 427–31. 30 YILC, 1972, vol. II, p 190. 31 See Art. 3 of the ILC draft, YILC, 1966, vol. II, pp 190–1. 32 UN Conference on the Law of Treaties, 1st session, Official Records, vol. I, p 14, para. 31 (Australia) and p 15, para. 4 (Canada). 33 Ibid, p 21, para. 78. 34 Ibid, p 147, para. 7. 35 According to the formula of P. Reuter, YILC, 1972, vol. II, p 190. 36 See the commentary on Art. 3 of the Convention in the present work. * Registrar of the International Tribunal for the Law of the Sea, Professor, UCL, Belgium. The author wishes to thank Mr J. Likitalo, intern at the Tribunal, for his assistance in the preparation of the English version of the commentary.

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Volume I, Part I Introduction, Art.1 1986 Vienna Convention Philippe Gautier From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Customary international law — UNCLOS (UN Convention on the Law of the Sea) — Subjects of international law

(p. 28) 1986 Vienna Convention Article 1 Scope of the present Convention The present Convention applies to: (a) treaties between one or more States and one or more international organizations, and (b) treaties between international organizations. A. General characteristics 28 Object and purpose 28 History and status of the provision 29 B. Interpretation issues 29 Relationship between the 1969 Convention and the 1986 Convention 30 Agreements between States, international organizations, and other subjects of international law 31 Gaja, G., ‘A “new” Vienna Convention on treaties between States and international organizations or between international organizations: a critical commentary’, BYBIL, 1987, pp 253–69

A. General characteristics Object and purpose 1. Article 1 of the 1986 Vienna Convention corresponds to the similar provision contained in Article 1 of the 1969 Convention. Its object is to clarify the scope of the 1986 Vienna Convention. The only particularity of the provision consists in operating a distinction in two sub-paragraphs between, on the one hand, treaties concluded between one or more States and one or more international organizations, and, on the other hand, treaties concluded between international organizations. The commentary on this Article, as contained in the 1982 Report of the ILC to the General Assembly, remains vague on the reasons for this distinction: Furthermore, the two categories of treaties concerned have been presented in two separate subparagraphs because this distinction will sometimes have to be made in the treaty regime to which the draft articles apply.1 Nevertheless, the report admits that ‘many of the draft articles’ refer to all treaties under the scope of the 1986 Vienna Convention without distinguishing between the two types of treaties. This issue will be further developed infra.

(p. 29) History and status of the provision 2. In the ‘Resolution relating to article 1 of the Vienna Convention on the Law of Treaties’ annexed to the Final Act of the 1968 Vienna Conference,2 the Conference recommended to the General Assembly of the United Nations that it refer to the International Law Commission the study…of the question of treaties concluded between States and international organizations or between two or more international organizations. Following its examination by the Sixth Commission, this recommendation was later adopted by the General Assembly in its Resolution 2501 (XXIV). 3. In 1971, the ILC included the matter in its working programme and appointed Paul Reuter as Special Rapporteur. After two reports devoted to preliminary questions, the Special Rapporteur submitted a set of draft Articles to the Commission in 1974.3 As he intended to follow the order and numbering of the 1969 Vienna Convention as closely as possible,4 it was only natural that the provision relating to the scope of the draft became Article 1. The provision was based on the wording of the 1969 Vienna Convention and reads as follows: ‘The present articles apply to treaties concluded between States and international organizations or between two or more international organizations.’ The text was revised by the Special Rapporteur in 1974 resulting in its current wording. In 1982, the text of the draft Articles was adopted by the Commission and generated few comments from governments and principal international organizations. 4. At the 1986 Vienna Conference (18 February–21 March 1986) the text proposed by the ILC was directly transmitted for consideration to the Drafting Committee which did not make any modifications. The Article was approved by the Conference on 18 March 1986.5

B. Interpretation issues 5. As an international agreement the 1986 Vienna Convention is only binding on the States and the international organizations that are parties to it. However, it is not required that all States parties to a treaty be also parties to the 1986 Vienna Convention for the latter to apply to the treaty.6 For the Convention to be applicable, the treaty merely has to meet the

qualifications set out in Article 1. On this matter, the developments devoted to the 1969 Convention are transposable mutatis mutandis to the 1986 Convention.7 6. Our attention shall now focus on the relationship between the two Vienna Conventions as well as on the issue of the regime applicable to the relations between the parties to a treaty which is open to the participation of different categories of international actors.

(p. 30) Relationship between the 1969 Convention and the 1986 Convention 7. As stated supra, pursuant to sub-paragraph (c) of Article 3 of the 1969 Convention, the 1969 Convention governs the relations between States parties to a treaty to which international organizations are also parties although the treaty is in principle governed by the 1986 Convention. It is therefore not surprising to note that this provision drew the attention of the ILC during its work on the draft 1986 Convention. Thus, the Rapporteur proposed ‘with hesitation’ to add to Article 1 a second sentence8 regarding ‘trilateral’ treaties between States and international organizations with the purpose of clarifying that Article 3(c) of the 1969 Vienna Convention would no longer be applicable to such treaties since they would be governed by the new Convention. However, certain members9 of the Commission expressed their doubts concerning the usefulness of such an addition. They were in favour of a distinction between treaties concluded by States and international organizations versus treaties between international organizations due to the specific features10 of each category of treaties. In order to resolve this difficulty the Special Rapporteur presented a modified text that separated into two sub-paragraphs the treaties concluded between States and organizations, on the one hand, and the treaties concluded between organizations, on the other hand.11 By means of some minor editorial modifications12 the text of the Article was accepted by the Commission13 and finally adopted without changes in 1986. Hence, the wording of Article 1 avoids clarifying or answering the problem raised by Article 3(c) of the 1969 Convention. Prima facie, we could consider that, pursuant to Article 1 of the 1986 Convention, every agreement between States and international organizations is governed by the Convention as the Convention is intended to govern all relations arising from such agreements including those between States. 8. However, the 1986 Vienna Convention preserves the applicability of Article 3(c) of the 1969 Convention through its Article 73 entitled ‘Relationship to the Vienna Convention on the Law of Treaties’. Thus, with respect to a treaty within the scope of the 1986 Convention, which is concluded between two or more States which are also parties to the 1969 Convention, Article 73 preserves the application of that Convention to the (p. 31) relations between the States in question.14 This provision reflects the desire of States to preserve the application of the 1969 Vienna Convention to agreements between States and organizations which are within the scope of the 1986 Convention.15

Agreements between States, international organizations, and other subjects of international law 9. The distinction between the two Conventions is based on a choice between two legal concepts: States and international organizations. This approach, however, does not address the situation of treaties to which not only States and international organizations are parties, but also other subjects of international law. Such treaties do exist. A well-known example of such an agreement is the 1982 United Nations Convention on the Law of the Sea (UNCLOS) to which all States, international organizations matching the conditions established in Annex IX of the Convention, as well as Namibia (represented in 1982 by the United Nations Council for Namibia), and certain self-governing associated States or territories enjoying full internal selfgovernment can become parties.16 At first sight, this type of Convention is within the scope of neither the 1969 nor the 1986 Convention, as the wording of Article 3 of each Convention attests.

References 10. Two answers may be provided to the question of the legal regime applicable to this type of instrument. 11. First, the application of customary international law is provided for in the 1969 and 1986 Conventions. Article 3(b) of the 1969 Convention reserves the possibility of applying the provisions of the Convention to agreements between States and other subjects of international law by means of customary international law. A similar approach can be found in Article 3(b) of the 1986 Convention with respect to treaties to which international organizations, States, and subjects of international law other than States or organizations are parties.17 12. Second, the Conventions create a fragmentation of the conventional relations, based on the legal status of the entities parties to a treaty. As set out supra, through Article 3(c) of the 1969 Convention, the relations between States parties to a treaty may be isolated from the relations between them and contracting parties other than States, in order to ensure the application of the Convention to the relations between States only. Article 3(c) of the 1986 Convention adopts the same approach with respect to the relations between States and organizations or among organizations when other subjects of international law are also parties to the treaty.18 (p. 32) 13. This multiplicity of relations, although unified by a treaty, comes as no surprise. The system adopted by the Vienna Conventions is built on a distinction based on the status of the contracting parties: States or international organizations. The distinction remains valid for

bilateral treaties and to a certain extent also multilateral treaties, but it does not reflect the evolution of international law with regard to general multilateral treaties that are open to different categories of international actors. Article 3(c) of the Vienna Conventions reflects therefore a pragmatic approach which makes it possible to determine the rules applicable to the relations between parties to a treaty that would otherwise fall outside the scope of the Conventions pursuant to their Article 1. *

PHILIPPE GAUTIER

Footnotes: 1 YILC, 1982, vol. II, Part Two, p 17. 2 See supra, p 5, fn 23. 3 YILC, 1974, vol. II, Part One, pp 135 ff. 4 Ibid, vol. I, p 124, para. 4. 5 Official Records of the United Nations Conference on the Law of Treaties between States and International Organizations or between International Organizations, 1995, vol. I (Summary Records), p 11. 6 E. Vierdag, ‘Some Problems Regarding the Scope of International Instruments on the Law of Treaties’, Archiv des Völkerrechts, 1985, pp 422–3. 7 See supra para. 9 of the commentary on Art. 1 of the 1969 Convention in the present work. 8 ‘Article 3 (c) of the Vienna Convention on the Law of Treaties does not apply to such treaties’; YILC, 1974, vol. II, pp 137, 138. 9 YILC, 1974, vol. I, pp 127–31. 10 The Report of the ILC to the General Assembly in 1974 thus mentions the case of Articles dealing with the expression of consent: The case of a State party to a treaty with one or more international organizations will be dealt with in a manner closely modeled on the Vienna Convention; on the other hand, the case of such organizations themselves will be governed by specific and perhaps different provisions. The separation into two sub-paragraphs, (a) and (b), is therefore justified but does not affect the fact that many of the draft articles will apply indiscriminately to both the categories distinguished here (YILC, 1974, vol. II, Part One, p 294). 11 The present articles apply to: a. treaties concluded between one or more States and one or more international organizations; b. treaties concluded between international organizations. See YILC, 1974, vol. I, p 132. 12 The present articles apply to: a. treaties concluded between one or more States and one or more international organizations; and b. treaties concluded between international organizations. 13 YILC, 1974, vol. II, Part One, p 294. 14 Thus, pursuant to this provision, as between States that are also parties to the 1969 Convention, ‘the relations of those States under a treaty between two or more States and one or more international organizations shall be governed by that Convention’. 15 See in this respect, the comments from the United Kingdom on the draft prepared by the ILC: …the United Kingdom would be strongly opposed to any proceeding…which might damage the status or authority of Vienna Convention itself or undermine the effectiveness of any of its provisions…(YILC, 1981, vol. II, Part Two, p 191). 16 Article 35 of UNCLOS. 17 See infra the commentaries on these two provisions in the present work. 18 For a scheme of the different regimes applicable to a treaty to which States and international organizations are parties depending on whether a State in question is a contracting party to the 1969 or 1986 Convention or both and whether an organization concerned is party to the 1986 or not, see G. Gaja, ‘A “new” Vienna Convention on treaties between States and international organizations or between international organizations: a critical commentary’, BYBIL, 1987, p 257. * Registrar of the International Tribunal for the Law of the Sea, Professor, UCL, Belgium. The author wishes to thank Mr J. Likitalo, intern at the Tribunal, for his assistance in the preparation of the English version of the commentary.

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Volume I, Part I Introduction, Art.2 1969 Vienna Convention Philippe Gautier From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Treaties, interpretation — Treaties, ratification — Treaties, application — Treaties, reservations and declarations — Treaties, effect for third states — Vienna Convention on the Law of Treaties — Treaties, signature — Customary international law

(p. 33) 1969 Vienna Convention Article 2 Use of terms 1. For the purposes of the present Convention: (a) ‘treaty’ means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation; (b) ‘ratification’, ‘acceptance’, ‘approval’ and ‘accession’ mean in each case the international act so named whereby a State establishes on the international plane its consent to be bound by a treaty; (c) ‘full powers’ means a document emanating from the competent authority of a State designating a person or persons to represent the State for negotiating, adopting or authenticating the text of a treaty, for expressing the consent of the State to be bound by a treaty, or for accomplishing any other act with respect to a treaty; (d ) ‘reservation’ means a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty, whether or not the treaty has entered into force; (e) ‘negotiating State’ means a State which took part in the drawing up and adoption of the text of the treaty; ( f  ) ‘contracting State’ means a State which has consented to be bound by the treaty, whether or not the treaty has entered into force; ( g ) ‘party’ means a State which has consented to be bound by the treaty and for which the treaty is in force; (h) ‘third State’ means a State not a party to the treaty; (i ) ‘international organization’ means an intergovernmental organization. 2. The provisions of paragraph 1 regarding the use of terms in the present Convention are without prejudice to the use of those terms or to the meanings which may be given to them in the internal law of any State. A. Object and purpose 34 B. Terms contained in paragraph 1 of Article 2 34 ‘Treaty’ (Article 2, paragraph 1(a)) 34 Authors 35 Form 35 Object 40 Governed by international law 40 Minimum legal content 43 ‘Ratification’, ‘acceptance’, ‘approval’, and ‘accession’ (Article 2, paragraph 1(b)) 45 ‘Full powers’ (Article 2, paragraph 1(c)) 47 ‘Reservation’ (Article 2, paragraph 1(d)) 48 ‘Negotiating State’ (Article 2, paragraph 1(e)) 51 ‘Contracting State’ (Article 2, paragraph 1(f)) 51 ‘Party’ (Article 2, paragraph 1(g)) 52 ‘Third State’ (Article 2, paragraph 1(h)) 52 (p. 34) ‘International organization’ (Article 2, paragraph 1(i)) 52 Certain definitions not included in Article 2 53 C. Paragraph 2 of Article 2 55

Bibliography Gautier, Ph., Essai sur la définition des traités entre Etats (Brussels: Bruylant, 1993) Klabbers, J., The Concept of Treaty in International Law (The Hague: Kluwer, 1996)

A. Object and purpose 1. The title (‘Use of terms’) of Article 2 of the 1969 Vienna Convention describes the purpose of the provision, ie to define the ‘special meaning’ of the terms used ‘for the purposes of the 1

present Convention’ without claiming to give definitions under general international law.1 However, the impact of Article 2 exceeds its formal object and it is legitimate to consider that some of the definitions are generally considered as reflecting general international law. This applies to the term ‘treaty’ and it is safe to say that any agreement which meets the conditions included in Article 2 of the Vienna Convention will be considered as a treaty under customary law. The term ‘reservation’ as defined in the Convention is also recognized in international practice and doctrine.2 Moreover, it may be observed that the terms used to indicate the status of a State with regard to a treaty (‘party’, ‘contracting State’, ‘third State’) or the expression of consent to be bound by a treaty (‘ratification’, ‘accession’, ‘acceptance’, ‘approval’) are commonly used in international practice. 2. Paragraph 2 of Article 2 states that the terms defined by the Convention are without prejudice to the meaning that is given to them in internal law. This provision, inspired by a dualistic approach of the relationship between international and municipal law, was included in order to safeguard internal practices based on purely municipal distinctions between different types of international agreements. The impact of this provision, however, should not be overestimated since a municipal judge faced with an issue of interpretation of a national law containing a term included in Article 2 will probably be inclined to take into consideration the meaning given to it under international law.

B. Terms contained in paragraph 1 of Article 2 3. In order to examine paragraph 1 of Article 2 of the 1969 Vienna Convention, each term will be considered separately including, where necessary, comments on interpretation issues.

‘Treaty’ (Article 2, paragraph 1(a)) 4. Undoubtedly, from among the expressions contained in Article 2, the term ‘treaty’ has attracted the main attention of the doctrine. This is logical, for the treaty constitutes the main object of the 1969 Vienna Convention. The term ‘treaty’ is of particular importance (p. 35) since the Convention will be applicable only to an agreement meeting the definition under the Convention. This also underlines the limits of the definition which is not intended to set forth the conditions of validity of a treaty, eg with regard to the existence of consent or the lawfulness of its object,3 these issues being governed by other provisions of the Convention. 5. To comment on the different elements of the ‘treaty’ under Article 2 of the Vienna Convention, a distinction will be made between (1) the authors, (2) the form, and (3) the object of treaties.

Authors 6. The definition included in the Convention is only valid with respect to the scope ratione personae of the Convention. It concerns treaties between States and does not include international agreements concluded by other subjects of international law. It ought to be said in this connection that the ILC had at one point considered a broader definition of ‘treaty’ encompassing all agreements concluded by subjects of international law.4 This approach was later put aside in favour of a draft solely dealing with treaties between States. Article 3 of the Convention, however, clarifies that the Convention does not affect the validity of agreements between subjects of international law other than States as well as the application to them of rules set forth in the Convention to which they would be subject under customary international law.5 It is worth noting that such treaties are likely to be governed by the 1986 Vienna Convention insofar as they are concluded among international organizations or between States and international organizations.

Form 7. The definition is ‘modern’ in the sense that it breaks away from a certain formal approach which considered a treaty as an instrument concluded in a solemn form and subject to ratification.6 The ILC played here a crucial role by adopting a broad definition of ‘treaty’:7 …whether embodied in a single instrument or in two or more related instruments (p. 36) 8. In its work, the Commission emphasized the fact that the ‘treaty’ covers all forms of written agreements between States. As stated by the Commission in its report to the General Assembly in 1966: Although the term ‘treaty’ in one sense connotes only the single formal instrument, there are also international agreements, such as exchanges of notes, which are not a single formal instrument, and yet are certainly agreements to which the law of treaties applies.8

References 9. The Commission's attention was particularly drawn to the practice of agreements in simplified form, an expression which designates in the eyes of the Commission either agreements concluded in a less solemn form (eg by exchange of notes or exchange of letters)9 or agreements not subject to ratification. These agreements depart from the conception of a treaty as a ‘single highly formalized instrument’.10 Given the importance of treaties in simplified form in the international practice, the Commission decided to include them in its draft.11 This decision was amply justified since these agreements are not limited to governing technical questions or issues of secondary importance.12 In the draft Articles provisionally 13

adopted in 1962,13 the Commission intended to address these agreements separately, in a definition of the term ‘treaty in simplified form’. However, the distinction between a treaty in simplified form and a more formal agreement is only based on the modalities relating to its conclusion and entry into force and does not reflect a difference in the legal regime applicable to each of them.14 There was therefore no compelling reason to keep the distinction and it disappeared in the draft adopted by the Commission in 1966.15 10. The fact that ‘treaty’ within the meaning of the Convention also covers agreements embodied in two or more related instruments allows it to be included in the definition of instruments that, at first sight, would seem to have a unilateral form. This idea is expressed in an explicit manner in a version of Article 2 proposed by Sir Hersch Lauterpacht in 1953: ‘[a] treaty obligation may be created by a unilateral instrument (p. 37) accepting an offer or followed by acceptance’.16 In this context, Sir Hersch Lauterpacht referred to declarations made under Article 36 of that Statute of the International Court of Justice as constituting ‘a treaty as between the parties making the declaration’.17 In this respect, it may also be noted that in the South West Africa Cases the International Court expressly recognized the contractual character of the Mandate of South Africa for Namibia despite its unilateral form.18 Other examples can be mentioned, such as the 1981 Algiers Agreements intended to settle the dispute between the United States and Iran and consisting of separate documents which were not jointly signed by both parties.19 What appears prima facie as a unilateral act may thus constitute an agreement, depending on its context or any other element (circumstances, content, conduct of the parties, etc.) from which could be established the will of the parties to conclude an agreement …whatever its particular designation

References 11. As maintained by the International Court of Justice in the South West Africa Cases, ‘terminology is not a determinant factor as to the character of an international agreement or undertaking’.20 Previously, the Permanent Court of International Justice had stated that: from the standpoint of the obligatory character of international engagements, it is well known that such engagements may be taken in the form of treaties, conventions, declarations, agreements, protocols, or exchanges of notes.21 More recently, in the case concerning Maritime delimitation and territorial questions between Qatar and Bahrain, the Court recognized the legally binding nature of Minutes by expressly referring to Article 2, paragraph 1(a) of the 1969 Vienna Convention.22 This position reflects the state of general international law and hence requires no particular comments.

References 12. It may be useful to note that during its work on the draft Articles the Commission had considered the need to include in the definition of ‘treaty’ an illustrative list of the most common appellations used in the practice: ‘treaty, convention, protocol, covenant, charter, statute, act, declaration, concordat, exchange of notes, agreed minute, memorandum of agreement, modus vivendi or any other appellation’.23 The proposition (p. 38) was abandoned as any form of enumeration would have been useless due to its incompleteness.24 13. That said, the title given to an instrument may in some cases clarify the latter's nature, as an element, among others, indicating the intention of its authors. It will indeed be easier to consider as a treaty an instrument which was named ‘agreement’ by its authors, rather than ‘declaration of intent’ …in written form… 14. The requirement that the agreement be concluded in written form is an essential element of the definition of a treaty. The preference given to the written form may be explained by its evidentiary value and by the fact that in practice international agreements are commonly concluded in writing.25 15. While the Convention requires that the agreement be in written form, it does not, however, specify the formal requirements which have to be fulfilled by the instrument to be so qualified. In this respect, the successive Special Rapporteurs have underlined the role of the writing as a means of recording the existence of an agreement.26 In the words of Sir Hersch Lauterpacht: ‘what matters is the existence of a record of an agreement’.27 This approach is reflected in Article 2 as adopted by the Commission—and later by the Vienna Conference— which defines the treaty as an international agreement ‘concluded between States in written form’.28 The expression ‘concluded…in written form’ raises a further question related to the term ‘conclusion’,29 which may be used in two different meanings. It may designate the agreement reached by the parties as regards the content of a treaty30—independently of the consent to be bound by it—or it may refer to the process leading to the existence of a legally binding instrument, including the expression of consent to be bound by its provisions.31 According to the latter, the expression ‘concluded…in written form’ could then mean that the instrument recording the agreement as well as the consent to be bound by the provisions of the treaty should be expressed in ‘written form’. This is not, however, the interpretation which should be retained. First, the Commission, in expressing its interest for an agreement ‘in written form’, had essentially in mind the need to record the terms of the agreement in a written instrument. Furthermore, the Vienna Conference made it clear, through the insertion of Article 11 of the Convention, that all forms of expression of consent are admissible,

including unwritten forms of consent such as the ‘exchange of instruments constituting a treaty’.32 Therefore, the (p. 39) expression ‘concluded…in written form’ as provided for in the Vienna Convention is deemed to refer to any agreement expressed in written form.33 16. Another issue concerns the special character of the written instrument. Is it a requirement that the agreement be recorded in a written instrument specially established for this purpose or may any writing satisfy this requirement?34 This question is not purely theoretical and may arise in the context of agreements allegedly resulting from an exchange of regular correspondence or from the adopted procès-verbal of a meeting.35 Taking into account the lack of formalism in the Vienna Convention, there is no reason to deny to these instruments the nature of agreements concluded in written form. The document in written form should nevertheless record a clear meeting of minds and should be accepted by the parties concerned. This precision enables us to answer in a negative way the question raised by Sir Gerald Fitzmaurice regarding the possibility of considering as a treaty ‘an oral agreement recorded…secretly by one of [the parties] only, on a disc or tape recorder’.36 On the contrary, it may be argued that an agreement in written form exists as soon as the oral agreement is recorded with the consent of the parties. It is not, however, required that the instrumentum be signed. This is demonstrated by the existence of numerous agreements concluded by exchanges of notes verbales (unsigned, but usually sealed and initialled). In the same vein, nothing prevents parties from concluding an agreement through telegrams, facsimiles, or electronic messages to the extent the authors of such documents may be clearly identified.37 17. The scope of application of the Vienna Convention is limited to agreements concluded in written form. This does not mean that oral agreements do not belong to the general definition of treaties under general international law. On the contrary, Article 3 of the Convention preserves the legal force of these agreements. This is further evidenced by examples of verbal agreements in international practice.38 Although the legal status of such agreements has not yet been clearly confirmed by the jurisprudence,39 it seems safe to consider them as treaties under customary international law. As an illustration, reference may be made to the declaration from the Minister for Foreign Affairs of Norway, Mr Ihlen, made on behalf of his government, ‘in response to a request by the diplomatic representative of a foreign power’.40 In the case relating to Legal Status of Eastern Greenland, (p. 40) the Permanent Court of International Justice examined the legal effect of the ‘Ihlen Declaration’ and considered that such a declaration was binding upon Norway.41 While the Court did not expressly pronounce on the legal status of the declaration,42 it is considered by several authors as an example of a bilateral agreement.43 18. In some instances, there is a thin border between an agreement in written form and a verbal agreement. The International Court of Justice (ICJ) was faced with such a situation in the Aegean Sea Continental Shelf Case44 as regards the legal status of the joint communiqué of Brussels of 31 May 1975 issued by the Prime Ministers of Greece and Turkey. The Court did not provide a definitive answer as to the nature of the communiqué since, in the paragraph addressing this issue, it made reference to both Articles 2 and 3 of the 1969 Vienna Convention,45 ie to the provisions referring to agreements concluded in written form as well as agreements not concluded in written form.

References

Object 19. A treaty, as an international act, is ‘governed by international law’ (1969 Vienna Convention, Article 2, paragraph 1(a)). This obvious statement, however, is not exempt from legal uncertainties. Two questions will here be considered: the first relates to the requirement that the agreement be governed by international law; the second concerns the need for the agreement to possess a minimum legal content.

Governed by international law 20. In the definition proposed by the Harvard Law School,46 a treaty had to ‘establish…a relationship under international law’. This constitutes a criterion on which, prima facie, a distinction could be based between treaties governed by international law and contracts concluded between States under municipal law. It is, however, unclear whether international law is completely indifferent to an agreement which is subject to a municipal system of law pursuant to the intention of the parties thereto. On this issue, different views were expressed within the Commission and it is useful briefly to refer to them. 21. In his report of 1953, Sir Hersch Lauterpacht did not find it necessary expressly to mention in the definition that the agreement had to be governed by international law. He observed that there are a number of agreements which regulate matters traditionally dealt with in the context of national law, ‘such as loans of money, purchase of foods, regulation of prices, leases or purchase of immovable property, and the like’.47 But he adopted on the matter a clear-cut opinion: these agreements (p. 41) are all governed, in the last resort, by international law. It is not the subjection of an agreement to international law which makes it a treaty. It is its quality as a treaty which causes it to be regulated by international law. This is so even if—which is an exceptional occurrence—the parties stipulate that it shall be governed by the municipal law of one of them. For in that case, the specific law thus agreed upon is the consequence of the will of the parties. As [a] result…the law applicable is transformed into conventional international law expressing, in the terminology of Article 38 of the Statute of the International Court of Justice, ‘rules expressly recognized by the 48

contesting parties’48 On the contrary, Sir Gerald Fitzmaurice was in favour of including in the definition of ‘treaty’ the expression ‘governed by international law’. In his view this constituted an essential part of the definition and an international agreement which would not be governed by international law could not be a treaty.49 22. In its report to the General Assembly in 1959, the Commission stated that ‘the element of subjection to international law was so essential an aspect of a treaty…that this should be expressly mentioned in any definition…’.50 However, the Commission's report is not entirely clear on the issue of agreements between States which are governed by municipal law. At first, it seems to consider that all international agreements are ultimately subject to international law: Is an agreement between States always or necessarily governed by international law? In one sense, yes: the agreement…must be carried out; and this results from the rule of customary international law, ‘pacta sunt servanda’.51 However, as regards agreements regulating private law or commercial matters ‘the incidents of which may be regulated entirely by the appropriate system of private (ie national, not international) law’,52 the Commission takes the view that, in the event of a breach to such agreements, ‘while one Government might be internationally accountable to the other…it would not follow that the basis of the accountability was a breach of an international treaty obligation’. It adds that the ‘matter is clearly not free from doubt’ but expresses its inclination for the opinion that: while a failure to carry out such an undertaking might involve a breach of international law, this did not entail the consequence that the undertaking itself… was…a treaty or international agreement. While the obligation to carry out the undertaking might be an international law obligation, the incidents of its execution would not be governed by international law.53 (p. 42) Without prejudice to the existence of such an international obligation, the Commission therefore considered it preferable to ‘confine the notion of an international agreement proper to agreements the actual execution of which (as well as the obligation to execute) is governed by international law’.54 23. The question surfaced later again in the context of the report prepared by Paul Reuter, Special Rapporteur on the topic of treaties concluded by international organizations. P. Reuter proposed to retain the definition of ‘treaty’ as contained in the 1969 Vienna Convention but suggested supplementing the definition by adding that the treaty is governed ‘principally’ by general international law. The term ‘principally’ was ‘intended to resolve a difficulty which may arise in connexion with the distinction between “treaties” and “contracts” ’.55 According to P. Reuter: It is generally agreed that the distinction between a treaty and a State contract may be drawn on the basis of the law which will govern these instruments: treaties are governed by international law, whereas contracts are governed by any national law chosen by the parties. If the parties have not expressed their intentions in this regard in sufficiently clear terms, the question must be resolved by taking into consideration the purpose of the conventional act and the circumstances which surrounded its conclusion.56 For P. Reuter, an agreement partly governed by municipal law is by no means extraordinary or inconceivable. It often happens that a legal situation is covered as a whole by international law but some of its aspects are subject to rules and concepts of national law; this is a quite common phenomenon of renvoi, in the widest sense of the term.57 In his view, ‘such cases do not pose problems. There is always a general régime which applies “principally” and it is this régime which makes it possible to establish whether the conventional act is a treaty or a contract’.58 24. The term ‘principally’ was eventually not retained by the Commission. But the legal analysis developed by P. Reuter may still be useful. On that basis, it is possible to adopt the following approach: whenever some aspects of the agreement are regulated by a municipal law and the agreement remains principally governed by international law, it may be concluded that the agreement is a treaty which refers—as a form of renvoi—to a national law to regulate some of its provisions. On the other hand, if the agreement is entirely subject to a municipal law, there is no reason to deny that this is a contract between States. In this second situation, one may be left with a last question: is such an agreement governed in the last resort by international law? In other words, would international law control the legality of the choice made by States in favour of a municipal law?59 (p. 43) 25. As far as the distinction between treaty and contracts is concerned, it may also be noted that according to a position expressed in legal writings60 as well as in State practice,61 there is a presumption that an agreement between subjects of international law is governed by international law, except whenever parties expressed an intention to the contrary.

Minimum legal content 26. A treaty which would not contain a single legal obligation would appear meaningless. For this reason, Sir Hersch Lauterpacht considered treaties as agreements ‘intended to create 62

legal rights and obligations…’.62 On the basis of this criterion, it is possible to make a distinction between treaties and statements of policy or gentlemen's agreements.63 H. Lauterpacht noted that ‘[i]n some cases the absence of a true contractual nexus…is obscured by the form, expressed in the traditional form of agreement, given to the instrument’.64 He observed in this respect that ‘[t]here exist formal international instruments which…are in the nature of statements of policy rather than instruments intended to lay down legal rights and obligations’.65 In this matter, the decisive criterion is the (p. 44) creation of rights or obligations: ‘instruments, which, although they may look like treaties, merely contained declarations of principles or statements of policy, or expressions [of] opinion, or vœux, would not be treaties’.66 On the other hand, there is no reason to deny the character of a treaty to an instrument containing obligations which ‘leav[e] a wide margin of discretion to the State bound by it’.67 As examples of such obligations, H. Lauterpacht refers to the duty to consult or negotiate. 27. The successive Special Rapporteurs adopted different approaches as regards the requirement that a treaty should have a minimum legal content. According to J. L. Brierly, a ‘treaty is an agreement…which establishes a relationship under international law between the parties thereto’.68 For H. Lauterpacht, ‘[t]reaties are agreements between States…intended to create legal rights and obligations of the parties’.69 G. Fitzmaurice preferred to state that a treaty ‘is an international agreement…intended to create rights and obligations, or to establish relationships, governed by international law’.70 The reference to the establishment of a relationship under international law (which was introduced by J. L. Brierly and dropped by H. Lauterpacht) was reintroduced by G. Fitzmaurice for the reason that it seems difficult to refuse the designation of treaty to an instrument—such as for instance a treaty of peace and amity, or of alliance—even if it only establishes a bare relationship, and leaves the consequences to rest on the basis of an implication as to the rights and obligations involved, without these being expressed in any definite Articles.71 It is, however, doubtful whether the term ‘relationship’ adds anything to the requirement that the treaty create rights or obligations. As rightly stated by J. L. Brierly, agreements which ‘create neither rights nor obligations for the parties are…of no significance from the point of view of the law of treaties’.72 28. Against this background, it is strange to observe that the provision in Article 2 of the Vienna Convention does not contain any reference to the requirement of a legal content. It should nevertheless not be hastily concluded that this element is superfluous. The Commission dropped the reference to this requirement because, faced with the difficulty ‘to find any convenient general phrase’73 which could cover at the same time the creation of obligations and rights as well as the termination, modification, or interpretation of these rights and obligations, it seemed preferable to omit a reference to the objects of the agreement. In addition, it considered that such reference was not necessary since it was largely subsumed in the expression ‘agreement…governed by international law’ already contained in the definition of ‘treaty’. Some States, however, were not pleased with this position and, in their comments on the draft Articles of 1965, noted with regret the decision to delete the reference to the creation of legal obligations in the definition of ‘treaty’.74 Similarly, different amendments were proposed during the Vienna Conference, with the (p. 45) aim of reinserting this element in the definition of the treaty.75 If these amendments were finally not adopted, it was not the result of any hostility against them. In reality, the drafting Committee simply considered that they were not necessary since—as previously stated by the Commission—the expression ‘agreement…governed by international law’ ‘covered the element of the intention to create obligations and rights in international law’.76 In those circumstances, it seems natural to consider that the expression ‘agreement…governed by international law’ implies that the treaty is intended to create rights and obligations in international law. 29. The definition of treaty included in the Vienna Convention has been referred to in judicial decisions at municipal and international levels. Several decisions considered that Article 2, paragraph 1(a) of the Convention reflected customary international law.77 The treaty as defined in the 1969 Vienna Convention, ie an international agreement concluded between States in written form, possesses a legal regime under the Vienna Convention and corresponds to the practice commonly observed by the States. That said, the definition of the treaty under the 1969 Vienna Convention does not exactly coincide with the definition of ‘treaty’ sensu lato in general international law. It constitutes the core concept of a broader definition which encompasses agreements not concluded in writing as well as agreements concluded by subjects of international law other than States.

References

‘Ratification’, ‘acceptance’, ‘approval’, and ‘accession’ (Article 2, paragraph 1(b)) 30. Paragraph 1(b) enounces terms designating international acts whereby the consent to be bound by a treaty is established. Sir Humphrey Waldock, in his First Report, suggested giving a more elaborate definition of the terms ‘ratification’, ‘accession’, and ‘acceptance’78 but the Commission felt that it would be difficult to formulate a comprehensive definition of these terms without inserting in the definition the content of the other Articles dealing with the legal effects of these terms.79 Therefore, the Commission considered it wiser to give a brief definition of these terms in Article 2 of the draft and to deal in separate Articles with their specific legal effects. 80

(p. 46) 31. From among these expressions, ‘ratification’ is probably the best known.80 The word is used with respect to the classical form of the treaty, which is concluded through a process consisting of three different phases: negotiation, signature, ratification, and is recorded in a single instrument.81 The Convention did not intend, however, to give any preference to—or establish a presumption in favour of—the ratification as the act expressing the consent to be bound by a treaty. In this respect, it may be observed that other options to express a State's consent are included in Article 2. 32. Whenever a State is expressing its consent to be bound by a treaty which it has not signed, the term ‘accession’ will be used.82 33. The terms ‘acceptance’ and ‘approval’ have the same legal effect as ‘ratification’. They appeared for reasons related to national law. National constitutions often require the accomplishment of certain solemn procedures with a view to the ‘ratification’ of treaties, while other agreements are not subject to such procedures and are simply approved or accepted, eg by the Council of Ministers.83 It may safely be said that these expressions are now commonly used. They may be found in the final clauses of several treaties.84

References 34. The consent to be bound by a treaty may be expressed by acts other than those enumerated in Article 2, as this is evidenced by Article 11 of the Convention85 which states that the consent may also be expressed ‘by any other means if so agreed’. It is interesting to note that this expression was not included in the draft prepared by the Commission. It was inserted during the Vienna Conference as a result of amendments proposed by the United States and Poland, and by Belgium, respectively.86 The justification for this amendment was that the provisions in the Commission's draft did not cover all the methods whereby a State could express its consent to be bound, and notably the most frequent of them, namely, an exchange of notes, not necessarily signed, where that exchange alone expressed the consent of the parties.87 (p. 47) This addition to the text of Article 11 was characterized by P. Reuter as ‘revolutionary’,88 since it means that ‘henceforth no formalism or specific designation would be required for the act by which a State expressed its consent to be bound by a treaty’.89

References 35. It is by no means exceptional for agreements to provide for their entry into force upon signature. This possibility is expressly contemplated in Article 12 of the Convention. Therefore, it would have been logical to include the signature in Article 2, in addition to the other terms (ratification, acceptance, approval, accession). This approach was adopted in the 1962 draft of the Commission (Art. 2(1)(f))90 but was later questioned by Panama in its comment on the draft. This prompted the Special Rapporteur to state that ‘having regard to the double use of “signature” in treaty practice [ie either to authenticate the text of a treaty or to express the consent to be bound by the treaty], he [was] inclined to share the view of the delegation of Panama that it would be better’ to deal with it in a separate provision.91 In 1965, the Commission endorsed this view and deleted the reference to signature in Article 2(1)(f).92 36. In its 1966 report to the General Assembly, the Commission noted that the purpose of the definition ‘is to underline that these terms…relate exclusively to the international act by which the consent of a State to be bound by a treaty is established on the international plane’.93 The Commission, however, observed that the ‘constitutions of many States contain specific requirements of internal law regarding the submission of treaties to the “ratification” or the “approval” of a particular organ or organs of the State’,94 and that the lack of exact correspondence between the terminology used in municipal and international law may sometimes be confusing. This was the reason for the proposal, made by Luxembourg in its comments on the Commission's draft, to delete any reference to the term ‘approval’.95 But the Commission did not follow the suggestion; it observed that the use of this expression was already well accepted in the practice of States. The Commission nevertheless was well aware of the confusion which might arise through the use in international law of expressions found in some systems of national law. This concern is specifically addressed in Article 2, paragraph 2, which makes it clear that the provisions in paragraph 1 ‘are without prejudice to the use of those terms or to the meanings which may be given to them in the internal law of any State’.

‘Full powers’ (Article 2, paragraph 1(c)) 37. ‘Full powers’ have a very concrete objective: they designate the person who is authorized by the competent authority of a State to represent it and to accomplish on its behalf (a) specific act(s) with respect to the conclusion of a treaty. The definition gives no details as to the forms in which the document called ‘full powers’ must be drafted. Usually, it will be an original instrument signed by the competent authority. In case of doubt, it will be necessary to verify the established practice of the States concerned—when this relates to a (p. 48) treaty directly concluded between States—or the international organization concerned—when the treaty is concluded under the auspices of an organization.96 38. The definition covers the different phases of the conclusion of a treaty and full powers may then be issued with respect to the negotiation, adoption, and authentication of the text of the treaty or to express the consent to be bound by the treaty. Municipal law may here establish distinctions depending on the nature of the act to be authorized.97 The provision also adds that the full powers may be issued ‘for accomplishing any other act with respect to a

treaty’. The Commission felt it necessary to insert this expression in order to address the circumstances where full powers do not stricto sensu concern the conclusion of treaties but ‘may be called for in connexion with other acts such as the termination or denunciation of a treaty’.98 The inclusion of the expression in the Vienna Convention does not mean that full powers are required in all circumstances. Parties my decide to dispense therewith and certain organs of States are considered as representing their States in virtue of their functions, as provided for in Article 7 of the Vienna Convention.99

‘Reservation’ (Article 2, paragraph 1(d)) 39. The definition of the term ‘reservation’ as included in Article 2, paragraph 1(d) of the 1969 Vienna Convention corresponds closely to the provision initially drafted by the Commission in 1962.100 The only change which should be mentioned concerns the insertion in 1965 of the expression ‘however phrased or named’ in order to underline that any declaration, whatever its title, which purports to exclude or to modify the legal effect of certain provisions of a treaty, constitutes a reservation.101 The definition is commonly used in legal writings and State practice,102 and has been quoted in several international decisions.103

References (p. 49) 40. The definition underlines the lack of formalism of the law of treaties. Any declaration, whatever its title, made when signing or expressing the consent to be bound by the treaty, may constitute a reservation. The definition is practice-oriented and may be used to verify whether a specific declaration is a reservation to the extent it intends or not to exclude or modify the legal effect of certain provisions of a treaty. In this respect, Alain Pellet refers to the practice of reservations relating to ‘non-recognition’, which, in his view, constitutes genuine reservations in the meaning of the Vienna Convention only when they partly or wholly exclude the application of the treaty between the author of the declaration and the State it does not recognize.104 Likewise, as regards ‘reservations having territorial scope’, the Special Rapporteur observes that:

if, under either its own provisions or under the principles of general international law, a treaty applies to a particular territory that the declaring State intends to exclude from the application of the treaty, the statement is indeed in the nature of a reservation, since it purports to prevent the treaty from producing its effects in respect of a territory to which it would normally be applicable.105 41. The definition does not address the delicate question of ‘interpretative declarations’, ie declarations made by States ‘as to their understanding of some matter or as to their interpretation of a particular provision’.106 The Commission was, however, well aware of this notion and, in its 1966 report, expressed the view that such an interpretative declaration ‘may be a mere clarification of the State's position or it may amount to a reservation, according as it does or does not vary or exclude the application of the terms of the Treaty as adopted’.107 In an earlier draft, H. Waldock added to the definition of ‘reservation’ a sentence stating that ‘[a]n explanatory statement or statement of intention as to the meaning of the treaty, which does not amount to a variation of the legal effect of the treaty, does not constitute a reservation’.108 The Commission decided nevertheless that an express reference to interpretative declarations was not required, a decision which was criticized by the United Kingdom and Japan in their comments on Article 18 (‘Formulation of reservations’) of the Commission's draft.109 42. The distinction between a declaration constituting a genuine reservation and an interpretative declaration is based on the content and purpose of the declaration. If it only purports to clarify the meaning of a provision contained in the treaty, it may be considered as a mere interpretative declaration. If, on the contrary, it intends to exclude or modify the legal effect of some provisions of the treaty, it should be characterized as a reservation. The controlling factor is based on a objective criterion: does the declaration exclude some legal effect of the treaty? The subjective element is, however, not totally absent since the definition refers to a declaration whereby its author ‘purports’ to create some legal effects. In this context, it seems appropriate to consider that the term used by the State to name its ‘declaration’ may be an element to be taken into account to interpret its intention. To this effect, Alain Pellet suggested ‘that there is a presumption, not irrefragable, attached to the name a declaring State gives to its declaration’.110 (p. 50) 43. Reservations are normally made with respect to multilateral treaties and, at first glance, it seems difficult to conceive such practice as regards bilateral treaties.111 The Vienna Convention is, however, silent on this question. The Commission, in its 1966 report, had addressed this point and concluded that a reservation to a bilateral treaty would amount to a request for the reopening of negotiations.112 Along this line, the United States, in commenting on the Commission's draft, had suggested giving to the section relating to reservations the title ‘Reservations to multilateral treaties’, a proposal that had been accepted by the Commission.113 Nevertheless, the Conference of Vienna took another decision and the section in the Convention is now simply called ‘Reservations’. This is certainly not the result of a lack of interest for this matter; during the Conference, China, Chile, and Hungary, respectively, proposed amendments to the expression ‘reservation’ with a view to specifying that a reservation relates to ‘a multilateral treaty’.114 Notwithstanding the support received by this proposal,115 it was eventually not retained. That said, it must be recognized that this proposal also met with some resistance. For example, France and Tunisia presented a joint amendment at the Conference which intended including in the Convention a reference to reservation to bilateral treaties.116 In introducing the amendment, the representative of Tunisia admitted

that a reservation to a bilateral treaty, if accepted, would amount to a modification of the treaty but he justified the usefulness of the proposal by stating that ‘parties sometimes resorted to that procedure as a means of overcoming difficulties created by internal constitutional procedures for the acceptance of treaties’.117 44. The Special Rapporteur on the topic ‘reservations to treaties’, A. Pellet, made a survey of the practice with respect to bilateral treaties. He observed that this practice is limited to the case of the United States or other States which concluded bilateral agreements with the United States.118 In some instances, the United States subordinates its ratification of the treaty concerned to acceptance by the other party of changes required by the US Senate as a condition for its approval of the treaty. Such a condition is sometimes characterized as a ‘reservation’. However, it does not correspond to the definition contained in the Vienna Convention for two reasons: first the declaration is normally issued after the signature but in any event before the expression of consent to be bound by the treaty; second, the declaration does not purport to exclude or modify the effect of certain provisions of the treaty. It should, rather, be analysed as an offer to renegotiate the treaty.119

(p. 51) ‘Negotiating State’ (Article 2, paragraph 1(e)) 45. The expression ‘Negotiating State’ refers to the States which participated in the drawing up and adoption of the treaty. It does not correspond exactly to the expressions ‘States participating in…drawing up’ a treaty—which appears in Articles 9 and 10 of the Convention— or ‘States entitled to become parties to the treaty’—which is found in Articles 23, 40, 77, and 79 of the Convention. The term ‘Negotiating States’ is used in Articles 12, 14, 15, 20, 24, 25, 47, 49, 50, and 76 of the Convention. The Convention makes use of this notion, rather than the notions of ‘party’ or ‘contracting State’, particularly when reference is made to the ‘intention underlying the treaty’,120 ie whenever there is a need to rely on the agreed positions of the States which participated in the drafting and adoption of the final text, in the absence of guidance provided by express provisions in the treaty. Article 12, paragraph 1(b) of the Convention may be quoted in this respect. According to this provision, the consent to be bound by a treaty is expressed by the signature when it is ‘established that the negotiating States were agreed that signature should have that effect’.121 The Convention also refers to this notion in other contexts: Article 24, paragraph 2 provides that, failing a provision in the treaty or an agreement between the negotiating States, ‘a treaty enters into force as soon as consent to be bound by the treaty has been established for all the negotiating States’. Article 20, paragraph 2 takes into account the limited number of negotiating States as one of the elements signalling that the application of the treaty in its entirety is an essential condition of the consent to be bound by it and that therefore ‘a reservation requires acceptance by all the parties’. In addition, one may observe that the ‘designation of the depositary of a treaty may be made by the negotiating States’ (Art. 76, para. 1); this seems a logical solution since the formal clauses of a treaty ‘apply from the time of the adoption’ of the text of the treaty (Art. 24, para. 4). Finally, it may be noted that the notion is also relevant in the context of issues relating to the validity of consent: the author of a fraudulent conduct (Art. 49) or of an act of corruption (Art. 50) should be a ‘negotiating State’ for these provisions to apply. Likewise, specific restrictions on the authority of a representative to express consent cannot be invoked as invalidating the consent ‘unless the restriction was notified to the other negotiating States prior to his expressing such consent’ (Art. 47).

‘Contracting State’ (Article 2, paragraph 1(f  )) 46. ‘Contracting State’ means a State which has consented to be bound by the treaty. The fact that the consent has been expressed is the determining factor, not the fact that the treaty has entered into force. The notion is contained in several provisions of the Convention.122 47. Some doubts may be expressed as regards the use of this term in Article 16, paragraph 1(a). According to this provision, ‘instruments of ratification…establish the consent of a State to be bound by a treaty upon: (a) their exchange between the contracting States’. Taken literally, the sentence would mean that, when the instruments of ratification are exchanged, the States concerned are already considered as having expressed their consent.

(p. 52) ‘Party’ (Article 2, paragraph 1(g)) 48. If hesitation was sometimes expressed within the Commission as to the exact scope of the term ‘party’,123 it may now be safely stated that the definition in Article 2 of the Convention, ie a ‘State which has consented to be bound by the treaty and for which the treaty is in force’, is commonly accepted and used. The Convention refers to it in numerous provisions.124 It has to be pointed out, however, that States remain free to choose another expression. Some variation may sometimes be observed in States' practice and, as an illustration, reference may be made to the expression ‘States Parties’, in Article 1, paragraph 2(1) of the 1982 United Nations Convention on the Law of the Sea. According to this provision, ‘ “States Parties” means States which have consented to be bound by this Convention and for which this Convention is in force’.

‘Third State’ (Article 2, paragraph 1(h)) 49. The term ‘Third State’ does not call for intricate explanation. It refers to a State which is not a party to a particular treaty. From the ‘standpoint of the Vienna Convention, there is not, properly speaking, any intermediate position between that of “party” and that of “third State” with regard to a treaty’.125 However, this clear-cut position does not adequately reflect the different nuances which may exist as regards the status of ‘third State’. The definition is

expressed in a negative way (a State which is not a party) and therefore includes in the same category States which are not at all concerned with the treaty as well as States which have participated in its negotiation or even States which have signed it but not yet expressed their consent to be bound by its provisions. Other expressions are certainly available to refer to these intermediate situations, such as ‘contracting State’ or ‘negotiating State’. That said, the expression ‘third State’ is useful when a distinction needs to be drawn from the point of view of the existence of a binding treaty obligation. It is then useful to have a clear criterion, based on the separation between party and third State. In this respect, it may be noted that the Convention makes use of the term ‘third State’ only in the context of Articles 34 to 38, ie in Section 4 of Part III devoted to ‘treaties and third States’.

‘International organization’ (Article 2, paragraph 1(i)) 50. The expression ‘international organization’ means an intergovernmental organization. This ‘minimalist’ definition intends to make it clear that the term does not include nongovernmental organizations.126 51. During the discussions within the ILC, proposals were made in favour of a more substantial definition.127 This approach was not based on a specific interest for international (p. 53) organizations; it was inspired by a wish to have a definition of the different subjects of international law which could conclude treaties. In this perspective earlier drafts also contained a definition of the term ‘State’.128 The work was probably too demanding and, not surprisingly, could not be completed. As mentioned by Paul Reuter, ‘definitions of such general terms almost always raise theoretical issues on which it is difficult to reach a broad consensus and whose usefulness is limited to exceptional cases’.129 In addition, it may be observed that the need for a more elaborate definition of the term ‘international organization’ was less pressing when it became clear that the draft would be limited to treaties concluded by States only.130

Certain definitions not included in Article 2 52. We have already observed that some terms are not included in paragraph 1 of Article 2. This concerns inter alia the terms ‘signature’, ‘agreement in simplified form’, States ‘which took part in the drawing up…of the text of the treaty’, or ‘States entitled to become parties’ to a treaty.131 Likewise, the term ‘authentication’ is not defined in the Convention while it represents an important phase between the adoption of the text of the treaty (at least if adoption and authentication are expressed by distinct acts) and the expression of consent to be bound by the treaty. 53. Article 2 of the Vienna Convention does not give a definition of the expression ‘general multilateral treaty’. This term was the subject of discussions within the Commission and it may therefore be useful briefly to comment upon it. 54. In his 1962 report, Sir Humphrey Waldock suggested giving a definition of the following terms: ‘bilateral treaty’, ‘plurilateral treaty’, and ‘multilateral treaty’.132 The distinction between ‘plurilateral treaties’ and ‘multilateral treaties’ was based on two tests: first the possibility for third States to accede the treaty; second, the subject matter of the treaty, ie whether it is confined to matters affecting only the parties to it or it addresses matters ‘of general interest to all States or [is] intended to create norms of general international law’.133 Further to the discussions within the Commission, only134 the definition of ‘General multilateral treaty’ was retained by the Commission in its report to the General Assembly in 1962: ‘ “[g]eneral multilateral treaty” means a multilateral treaty which concerns general norms of international law or deals with matters of general interest to States as a whole’.135 The Commission considered that the definition of this category of treaties was necessary given the specific legal regime applicable to it as regards ‘the (p. 54) procedure for admitting additional States to participation in a multilateral treaty’.136 The terms was used in the 1962 draft in one single provision, Article 8, paragraph 1, providing that, in principle, every State could become a party to a general multilateral treaty. In light of the criticism raised by some governments vis-à-vis the vague character of the definition and given the limited use of this distinction in the draft, the distinction was then dropped by the Commission.137 55. During the Vienna Conference, some States proposed amending the draft with a view to reintroducing in Article 2 the term ‘general multilateral treaty’.138 The objective pursued by the amendment was to underline the right of every State to become a party to general multilateral treaties dealing with matters of general interest to all States. The consideration of the amendment was therefore linked to the amendment seeking to insert a new Article 5bis in the draft Convention intended to affirm the right of every State to participate in such treaties.139 Further to a vote on the amendment relating to Article 5bis, the Committee of the Whole rejected the proposal and, as a consequence, the amendment relating to the definition of the general multilateral treaty was withdrawn.140 Incidentally, it may be noted that in ‘response’ to the amendment referred to supra, France suggested the insertion in the draft of a definition of the term ‘restricted multilateral treaty’ as follows: a treaty which is intended to be binding only on the States referred to in the treaty and whose entry into force in its entirety with respect to all the negotiating States is an essential condition of the consent of each of them to be bound by it.141 In his statement at the Vienna Conference, the representative of France, Mr Virally, stated that this term related to a very important class of treaties—those establishing very close co-operation between several States, such as treaties of economic integration, treaties between

riparian States relating to the development of a river basin or treaties relating to the building of a hydroelectric dam, scientific installation, or the like…The very close cooperation they established required, first of all, that all the States expected to participate should in fact become parties to the treaty…Moreover, the treaty had to be applied in its entirety.142 In the view of the French representative, the Commission had referred to this notion when it proposed ‘that the rules on the acceptance of reservations to multilateral treaties should not apply to restricted multilateral treaties’ but it ‘had not carried the idea to its conclusion’, since there were other specific rules applicable to this class of agreements, such as those relating to the adoption of the text of such treaties or the amendment procedure which would require a unanimous consent. This proposal was eventually (p. 55) withdrawn after the rejection of the amendment relating to the definition to the term ‘general multilateral treaty’. 56. The fact that no agreement could be reached as regards the definition of the terms ‘general multilateral treaty’ and ‘restricted multilateral treaty’ is largely the result of the sensitive issue relating to the recognition of a right of access of all States vis-à-vis multilateral treaties.143 If one puts aside this political context, the distinction may have some merits, in particular with respect to the acceptance of reservation, as this is evidenced by Article 20, paragraph 2 of the Convention.

C. Paragraph 2 of Article 2 57. According to Article 2, paragraph 2 of the Convention, ‘[t]he provisions of paragraph 1 regarding the use of terms in the present Convention are without prejudice to the use of those terms or to the meanings which may be given to them in the internal law of any State’. This paragraph is designed to safeguard the position of States in regard to their internal law and usages, and more especially in connexion with the ratification of treaties. In many countries, the constitution requires that international agreements in a form considered under the internal law or usage of the State to be a ‘treaty’ must be endorsed by the legislature…whereas other forms of international agreement are not subject to this requirement.144 It is therefore essential that the definition given to the term ‘treaty’…should do nothing to disturb or affect in any way the existing domestic rules or usages which govern the classification of international agreements under national law.145 58. During the preparatory work of the Convention, several States stressed the importance of the legal issues which are addressed in paragraph 2 of Article 2. For example, the representative of Chile at the Sixth Committee observed that the adoption of a broad (ie including informal agreements) definition of a treaty would have as a result that all agreements covered by the definition would have to be approved by the legislature since, pursuant to the Chilean constitution, all ‘treaties’ require approval by the legislative power before ratification. He added that this would also apply to all administrative agreements and would cause delays as regards the entry into force of such agreements.146 59. One should not overestimate the effect of the provision in paragraph 2 of Article 2, according to which the definition of ‘treaty’ in paragraph 1 is ‘without prejudice to the use of [this term] or to the meanings which may be given to [it] in the internal law of any State’. It is indeed difficult to believe that, through this provision, municipal systems could function in splendid isolation, without being affected by the meaning of the term ‘treaty’ under international law. Whenever all ‘treaties’ are subject to the approval of the legislature by virtue of the constitution of a State, it is likely that a municipal judge, faced (p. 56) with a question of interpretation of the term ‘treaty’ will take into account or consider, in his or her reasoning, the international definition of a treaty.147 In addition, a national legislative body could find it useful to refer to the term ‘treaty’ under international law in order to claim that its approval is required with respect to agreements which, while they correspond to the definition in the Vienna Convention, are not considered as ‘treaty’ under national law by virtue of municipal usages followed by the executive power. *

PHILIPPE GAUTIER

Footnotes: 1 See infra commentary on Art. 31. 2 See eg the definition of reservations included in the text of the draft Guidelines on reservation to treaties provisionally adopted by the ILC in A/54/10, YILC 1999, vol. II, p 91. 3 See in this respect the statement of the representative of Ecuador in 1968 during the Vienna Conference, in favour of an amendment stipulating that ‘the treaty must have a licit object and be freely consented to’ (A/CONF.39/C.1/L.25, 1st session, p 21); see also the comments of the representative of the USSR (Official Records, 2nd session, p 227). 4 In the text of draft Articles adopted by the Commission in 1959, Art. 2 entitled ‘meaning of an international agreement’ refers to agreements concluded between two or more States ‘or other subjects of international law’, YILC, 1959, vol. II, p 95. The ‘Draft Articles on the law of treaties’ provisionally adopted by the ILC in 1962 follow the same approach. Article 1 provides that ‘for the purposes of the present Articles…“treaty” means any international agreement in written form…concluded between two or more States or other subjects of international law…’,

YILC, 1962, vol. II, p 161. 5 For more on this, see the commentary on Art. 3. 6 ‘On réserve alors l'appellation technique de traité aux engagements internationaux conclus avec l'intervention formelle de l'organe investi de la compétence de conclusion des traités… Les traités ainsi entendus se caractérisent par deux traits: a) conclusion médiate comportant trois phases distinctes (négociation, signature, ratification); b) unité d'instrument juridique' (Ch. Rousseau, Droit international public (10th edn, Paris: Dalloz, 1984), p 22. 7 The absence of formalism in the definition of treaty transpires from the report presented in 1953 by H. Lauterpacht who considered (see Art. 2 of the draft) that international agreements ‘constitute treaties regardless of their form and designation’, YILC, 1953, vol. II, p 101. See also the Report of the ILC to the General Assembly, YILC, 1959, vol. II, pp 92 and 93. 8 YILC, 1966, vol. II, p 188. For a recent example where the legal force of exchanges of letters was recognized by the parties to a dispute before the ICJ, see the judgment of 1 July of the ICJ in the Case concerning Maritime delimitation and territorial questions between Qatar and Bahrain, ICJ Reports 1994, p 120, para. 22. 9 It can be noted that since 1950, starting with the draft prepared by J. L. Brierly, it was stipulated in Art. 1, sub-para. (b), that the term ‘treaty’ included agreements concluded by exchange of notes. H. Lauterpacht devoted some important considerations to agreements concluded by exchange of notes which he included in the scope of the definition of the term ‘treaty’, see YILC, 1953, vol. II, pp 103–5. 10 Comment under Art. 1(b) [‘The term “treaty” does not include an agreement effected in exchange of notes’] of the draft Convention prepared by the Harvard Law School, AJIL, Suppl. 1935, vol. 29, p 698. 11 This decision was adopted in 1950 with a short majority (6 members against 5); see YILC, 1950, vol. I, p 78. 12 See the intervention made on 18 October 1962 by Mr Ruda (Argentina) on the occasion of the consideration of the draft of the ILC by the Sixth Committee of the General Assembly, A/C.6/SR.744, p 51. 13 ‘Treaty in simplified form’ means a treaty concluded by exchange of notes, exchange of letters, agreed minute, memorandum of agreement, joint declaration, or other instrument concluded by any similar procedure, YILC, 1962, vol. II, p 161. 14 ‘…the juridical difference, in so far as they really exist at all, between formal treaties and treaties in simplified form lie almost exclusively in the method of conclusion and entry into force. The law relating to such matters as validity, operation and effect, execution and enforcement, interpretation, and termination, applies to all classes of international agreements’ (YILC, 1966, vol. II, p 188). 15 In their comments on the draft Articles drawn up by the Commission, several governments pointed out that the proposed definition of ‘treaty in simplified form’ was unnecessary or was not satisfactory. See the comments of Austria, Japan, Luxembourg, United Kingdom, and United States, mentioned in the Fourth Report of H. Waldock, Special Rapporteur, YILC, 1965, vol. II, pp 12 and 13. On this matter, see also the Report of the ILC to the General Assembly in YILC, 1965, vol. II, p 155. 16 YILC, 1953, vol. II, p 101. 17 Ibid. In the Nicaragua case, the ICJ maintained that the declarations of acceptance of the compulsory jurisdiction of the Court were ‘unilateral acts’ but it also stated that these declarations, ‘even though they are unilateral acts, establish a series of bilateral engagements with other States accepting the same obligation…’, Case concerning military and paramilitary activities in and against Nicaragua (Nicaragua v United States of America), Jurisdiction and Admissibility, ICJ Reports 1984, p 418, para. 59. 18 For its confirmation, the Mandate for South West Africa took the form of a resolution of the Council of the League but obviously it was of a different character. It cannot be correctly regarded as embodying only an executive action in pursuance of the Covenant. The Mandate, in fact and in law, is an international agreement having the character of a treaty or convention. The Preamble of the Mandate itself shows this character (South West Africa cases, Preliminary Objections, ICJ Reports 1962, p 330). 19 ‘Although not in customary treaty form, the Algiers Declarations and related agreements are “treaties” within the meaning of Article 2 of the Vienna Convention on the Law of Treaties of 1969’ (Separate Opinion of Judges Aldrich, Holtzmann, and Mosk, Iran-United States Tribunal (Case A/1), 3 August 1982, ILR, vol. 68, p 545). 20 South West Africa cases, Preliminary Objections, ICJ Reports 1962, p 331. 21 Customs régime between Germany and Austria, Advisory Opinion, 1931, PCIJ, Series A/B, no. 41, p 47. 22 ICJ Reports 1994, p 120, para. 23. 23 See Art. 1, para. (a) of the draft Articles included in the Report of the ILC the General Assembly in 1962, YILC, 1962, vol. II, p 161. On this matter see also the First Report of H.

Waldock, YILC, 1962, vol. II, p 31. 24 See the comments made by Japan and the United Kingdom in their observations on the draft Articles of the Commission, YILC, 1966, vol. II, pp 302 and 343. 25 De Martens, ‘Mais aujourd'hui, pour faciliter la preuve, on ne manquera guère de rédiger par écrit ce dont on est convenu’, in Droit des gens (Paris: Aillaud, 1831), pp 139–40. 26 See the First Report of J. L. Brierly, YILC, 1950, vol. II, p 233, Art. 1, and p 227; First Report of G. Fitzmaurice, YILC, 1956, vol. II, p 107, Art. 2; and the First Report of H. Lauterpacht, YILC, 1953, vol. II, p 160. 27 YILC, 1953, vol. II, p 160. 28 YILC, 1966, vol. II, p 178. 29 A. Aust notes that this term is not defined by the Vienna Convention while it appears 23 times therein. See A. Aust, Modern Treaty Law and Practice (2nd edn, Cambridge: Cambridge University Press, 2007), p 92. 30 See the Reports of J. L. Brierly (YILC, 1951, vol. II, p 70) and G. Fitzmaurice (YILC, 1956, vol. II, p 119). 31 See eg the Articles under Chapter II (entitled ‘The rules governing the conclusion of treaties…’) in the First Report of H. Waldock, YILC, 1962, vol. II, pp 38 ff. See also the statement of Mr Bilge (Turkey) in the Sixth Committee, who pointed out that two different interpretations may be given to the expression ‘conclusion of a treaty’, A/C.6/SR. 907, p 33. 32 See the intervention of Mr Nahlik (Poland) who stated that the Commission, in listing in Arts 10, 11, and 12 the various means used to express the consent to be bound by a treaty (signature, ratification, acceptance, approval, or accession), ‘left out treaties concluded by an exchange of instruments. In such cases it was simply the act of exchange that should be regarded as constituting the expression of consent of the parties to be bound by the agreement’: Official Records, Summary Records, 2nd session, p 24; see also Official Records, Summary Records, 1st session, p 84. 33 See eg the statement of the Mr Khlestov (USSR) who expressed the view that ‘agreements were frequently expressed in writing, but not concluded in written form’: Official Records, Summary Records, 1st session, p 45. 34 According to the wording of P. Reuter in his report on the treaties of international organizations: ‘It was not clear whether the expression [concluded in writing] applied only on condition that the written agreement consisted of an instrument specially drafted for the purpose, or whether it was enough merely for the text to be expressed in writing’: YILC, 1973, vol. II, p 81. 35 Ibid. 36 YILC, 1956, vol. II, p 117, n 4. 37 A. Aust, supra n 29, p 19. 38 See the examples quoted by Grotius, De Jure Belli et Pacis, Libri Tres, Accompanied by abridged translation (Cambridge: Cambridge University Press, 1853), pp 402–3, and De Martens, supra n 25, p 541. For a more recent example, see the oral declaration made by the Head of the Canadian delegation on the occasion of the signature of the Agreement on the Resolution of practical problems with respect to Deep Seabed Mining Areas, 14 August 1987 (ILM, 1987, p 1508). The note published in ILM points out that the declaration was accepted by the other delegations. 39 Ph. Gautier, Essai sur la définition des traités entre Etats (Brussels: Bruylant, 1993), pp 85–8. 40 Legal Status of Eastern Greenland, PCIJ Series A/B, no. 53, p 71. 41 Id. 42 See ibid, p 70. 43 See the Dissenting Opinion of Judge Anzilotti, PCIJ Series A/B, no. 53, p 91: The outcome of all this is therefore an agreement, concluded between the Danish Minister at Christiana, on behalf of the Danish Government, and the Norwegian Minister for Foreign Affairs, on behalf of the Norwegian Government, by means of purely verbal declarations. See also E. Suy, Les actes juridiques unilatéraux en droit international public (Paris: LGDJ, 1962), pp 121–4. Contra: J.-P. Jacqué, Eléments pour une théorie de l'acte juridique en droit international public (Paris: LGDJ, 1972), pp 254–5. 44 In his Dissenting Opinion, Judge Stassinopoulos stated that the joint Communiqué constituted ‘an oral international agreement (recorded in writing)’, ICJ Reports 1978, p 81, para. 22. 45 Aegean Sea Continental Shelf, ICJ Reports 1978, p 39. 46 AJIL, Suppl. 1935, vol. 29, p 657. 47 YILC, 1953, vol. II, p 100. 48 Id. 49 ‘Not all international agreements are governed by international law, but, if they are not, or to the extent that they are not, they are not treaties within the meaning of the present Code’: YILC, 1956, vol. II, p 117 and n 11. See also the statement of G. Fitzmaurice in YILC, 1959, vol. I, p 34:

In preparing the draft his main idea had been to limit the definition to agreements governed by international law, and to exclude agreements between States which were governed by municipal law, such as agreements dealing with certain commercial matters, certain purchase of property, or certain matters in the sphere of private international law. 50 YILC, 1959, vol. II, p 95. 51 Id. 52 Id. The Commission refers to ‘agreements for the acquisition by one Government from another of premises for its diplomatic mission in the territory of that Government; or else some other purely commercial transactions between Governments…’. 53 Id. 54 Id. 55 YILC, 1974, vol. II, p 139. 56 Id. 57 Id, P. Reuter observes that ‘[a] treaty governed by international law may legitimately refer to national law for questions which today are normally covered by national law, such as procedure for transfer of ownership, an insurance régime or a monetary definition’. 58 Ibid, p 140. 59 This position seems to have been adopted by the drafting Committee established at the Vienna Conference: ‘[The Committee] had also noted that States had the right to choose whether a treaty concluded by them should be governed by international law or by internal law only in so far as such choice was permitted by international law’, Official Records, Summary Records, 2nd session, p 346. 60 ‘No doubt in most cases of instruments made between states there might be a presumption that it is a treaty governed by international law’: R. Jennings, ‘General Course of International Law’, RCADI, 1967-II, p 531. Agreements between international persons are normally governed by international law. This rule is so generally accepted that it is almost never the object of an express choice of governing law. Thus, no reference to international law appears in most ‘commercial’ transactions, loans, or other arrangements between international persons. In all these cases, the international character of the agreement is not open to question and the lack of specific reference to the ‘proper law’ of the agreement is of no particular significance (G. Delaume, Transnational Contracts, 1985, I, para. 1.10).

Contra: ‘…transactions of a private nature do not acquire the character of treaties because the parties thereto are international persons’: J. L. Brierly, First Report, YILC, 1950, vol. II, p 228. When an agreement has been concluded between two or more states on a subject which has traditionally been recognized as a proper subject for a treaty a court would be justified, in the absence of other evidence, in assuming that the parties intended to contract with reference to international law (Ph. Jessup, ‘Modernization of the law of international contractual agreements’, AJIL, 1947, p 394. See also on the subject Ph. Gautier, supra n 39, pp 461–4. 61 See the comments made by Luxembourg on the draft of the ILC (YILC, 1965, vol. II, p 10). The Luxemburg government expressed doubts on the need to mention in the definition that the treaty is ‘governed by international law’. In its view, this element seems to be implied from the very nature of the contracting parties, and international law could only be made inapplicable exceptionally by the insertion of a specific reference to another system of law or possibly by virtue of the very special subject of the particular agreement. See also International Agreement Regulations adopted by the US State Department on 27 April 1981 (referred to by A. Aust, ‘The theory and practice of informal international instruments’, ICLQ, 1986, p 797) which provide that: ‘in the absence of any provision in the arrangement with respect to governing law, it will be presumed to be governed by international law’. 62 YILC, 1953, vol. II, p 96. 63 On the legal nature of political declarations or gentlemen's agreements, see eg A. Aust, supra n 61, pp 787 ff; M. Bothe, ‘Legal and non legal norms—a meaningful distinction in international relations?’, NYIL, 1980, pp 65 ff; P. Eiseman, ‘Le gentlemen's agreement comme source du droit international’, JDI, 1979, pp 326 ff; Ph. Gautier, ‘Accord et engagement politique en droit des gens—A propos de l'acte fondateur sur les relations, la coopération et la sécurité mutuelles entre l'OTAN et la Fédération de Russie, signé à Paris le 27 mai 1997’, AFDI, 1997, pp 82–92; O. Schachter, ‘The twilight existence of non binding international agreements’, AJIL, 1977, pp 296 ff. 64 YILC, 1953, vol. II, p 97. 65 Ibid, pp 96–7; H. Lauterpacht refers inter alia to the communiqué on the Moscow Conference, signed on 27 December 1945. On this instrument, see Ph. Gautier, supra n 39, pp 328–31. 66 YILC, 1959, vol. II, p 96.

67 YILC, 1953, vol. II, p 97. 68 YILC, 1950, vol. II, p 223. 69 YILC, 1953, vol. II, p 93. 70 YILC, 1959, vol. II, p 96. 71 YILC, 1956, vol. II, p 117. 72 YILC, 1950, vol. II, p 228. 73 YILC, 1959, vol. II, p 97. 74 See the comments of Australia, Austria, Luxembourg, and the United Kingdom, in YILC, 1965, vol. II, pp 10 ff. 75 See the amendments proposed by Chile, Ecuador, and Mexico, in Official Records, Summary Records, 1st session, 4th plenary meeting, pp 21–4. See also the statement of Mr Bindschedler (Switzerland) in Official Records, Summary Records, 2nd session, pp 225–6. 76 Official Records, Summary Records, 2nd session, 105th plenary meeting, p 346. 77 The Court considers that the Maroua Declaration constitutes an international agreement concluded between States in written form and tracing a boundary; it is thus governed by international law and constitutes a treaty in the sense of the Vienna Convention on the Law of Treaties (see Art. 2, para. l), to which Nigeria has been a party since 1969 and Cameroon since 1991, and which in any case reflects customary international law in this respect (Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea intervening), Judgment, ICJ Reports 2002, p 429, para. 263). The broad meaning of the word ‘treaty,’ as the term is customarily used, is: ‘any international agreement concluded between states in written from and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular description…’ (Rossi V. Brown, 467 F Supp 960, 963 (D.D.C. 1979) quoted in M. Frankowska, ‘The Vienna Convention on the Law of Treaties Before United States Courts’, VaJIL, 1988, vol. 28, p 314.) See also the Dissenting Opinion of Judge Schwebel in the Elettronica Sicula S.p.A. (ELSI) case, who refers to the expression ‘in a single instrument or in two or more related instruments’ in the definition contained in Art. 2 of the 1969 Vienna Convention, as reflecting the content of customary law, ICJ Reports 1989, p 96. 78 YILC, 1962, vol. II, p 31. 79 See the observations of the Special Rapporteur in YILC, 1965, vol. II, p 14. 80 For a definition, see the First Report of H. Lauterpacht in 1953: ‘Ratification is an act by which a competent organ of a State formally approves as binding the treaty or the signature thereof ’, YILC, 1953, vol. II, p 112, or the report of H. Waldock in 1962: Ratification ‘means the act whereby a State, which has affixed its signature to a treaty upon condition of subsequent ratification or approval, confirms and renders definitive its consent to be bound by the treaty’, YILC, 1962, vol. II, p 31. 81 Ch. Rousseau, supra n 6, p 22. 82 To ‘accede’ and to ‘adhere’ are considered as having the same meaning by H. Waldock, YILC, 1962, vol. II, p 31. 83 ‘Signature subject to acceptance’ was introduced into treaty practice principally in order to provide a simplified form of ‘ratification’ which would allow the government a further opportunity to examine the treaty when it is not necessarily obliged to submit it to the State's constitutional procedure for obtaining ratification (YILC, 1966, vol. II, p 198). See also A. Aust, supra n 29, pp 109–10, and the statement from the representative of Poland at the Vienna Conference in Official Records, Summary Records, 1st session, pp 26–7. 84 See eg Art. 25, para. 2 of the International Convention for the Suppression of the Financing of   Terrorism, adopted by the General Assembly of the United Nations on 9 December 1999 (Res.A/RES/54/109); Art. 125, para. 2 of the Rome Statute of the International Criminal Court (A/CONF.183/9 of 17 July 1998; UNTS, No. 38544); Art. 17, para. 2 of the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, done at Rome on 10 March 1988 (UNTS, No. 29004); and Art. XIV of the Agreement establishing the World Trade Organization (The Results of the Uruguay Round of Multilateral Trade Negotiations, WTO/Cambridge, 2007). 85 See infra commentary on Art. 11. 86 Official Records, 1st and 2nd sessions, pp 134–5. 87 Statement of Mr Nahlik (Poland), Official Records, Summary Records, 1st session, p 93. 88 YILC, 1974, vol. I, p 162. 89 Id. 90 YILC, 1962, vol. II, p 161. 91 YILC, 1965, vol. II, p 14. 92 YILC, 1965, vol. I, pp 307–8. 93 YILC, 1966, vol. II, p 189. 94 Id. 95 YILC, 1965, vol. II, pp 14–15. 96 See eg the Treaty Handbook issued by the UN Office of Legal Affairs (available on the

website of the UN: http://untreaty.un.org), p 7: As depositary, the Secretary-General insists on proper full powers for the person (other than a Head of State, Head of Government or Minister for Foreign Affairs) seeking to sign a treaty. Documents not containing a legible signature from one of the above-mentioned authorities are not acceptable (e.g., a telexed message). 97 eg in Belgium, ‘full powers’ issued with a view to the negotiation of a multilateral treaty are signed by the Minister of Foreign Affairs while the signature of a treaty requires ‘full powers’ signed by the King and—when necessary—representatives of the federated states (‘Communautés et Régions’) of Belgium. Cf Ph. Gautier, ‘La conclusion des traités’, RBDI, 1994, pp 45–6. 98 YILC, 1966, vol. II, p 189. 99 For more on this, see the commentary on Art. 7. 100 ‘Reservation’ means a unilateral statement made by a State, when signing, ratifying, acceding to, accepting or approving a treaty, whereby it purports to exclude or vary the legal effect of some provisions of the treaty in its application to that State (YILC, 1962, vol. II, p 161). 101 YILC, 1965, vol. I, p 308. 102 See the Third Report of A. Pellet on reservations to treaties (A/CN.4/491), in particular addenda 1 and 2. A. Pellet observes inter alia that the ‘restatement of the law applied by the United States in its foreign relations defines reservations on the basis of Article 2, paragraph 1(d), of the Vienna Convention of 1969, which it simply paraphrases’ (A/CN.4/491/Add.2, p 7). 103 Cf Case concerning the delimitation of the Continental Shelf between the United Kingdom of Great Britain and Northern Ireland, and the French Republic (UK, France), RIAA, vol. XVIII, para. 55, pp 169–70; Nuclear test (Australia v France), Judgment, Joint Dissenting Opinion of Judges Onyeama, Dillard, Jiménez de Aréchaga, and Sir Humphrey Waldock, ICJ Reports 1974, p 349: ‘A reservation, as Article 2, paragraph 1(d), of the Vienna Convention on the Law of Treaties records, is:…’ 104 A/CN.4/491/Add.3, pp 14–18. 105 A/CN.4/491/Add.3, pp 19–20. 106 YILC, 1966, vol. II, pp 189–90. See also Third Report of A. Pellet, in A/CN.4/491/Add.1, para. 63. 107 YILC, 1966, vol. II, p 190. 108 YILC, 1962, vol. II, pp 31–2. 109 YILC, 1965, vol. II, p 49. 110 Cf Third Report on reservations to treaties, A/CN.4/491/Add.4, 2 July 1998, p 19. 111 A. Aust, supra n 29, pp 131–2. 112 A reservation to a bilateral treaty presents no problem, because it amounts to a new proposal reopening the negotiations between the two States concerning the terms of the treaty. If they arrive at an agreement—either adopting or rejecting the reservation —the treaty will be concluded; if not, it will fall to the ground (YILC, 1966, vol. II, p 203). 113 YILC, 1965, vol. II, p 45. 114 Official Records, p 112. 115 Official Records, Summary Records, 1st session, p 21 (Chile), p 22 (China), p 23 (Hungary), p 25 (Greece), p 26 (Czechoslovakia), p 28 (Switzerland), p 29 (Argentina), p 30 (USSR), p 32 (Mongolia). 116 A/CONF.39/C.1/L.113 (‘A reservation to a bilateral treaty or to a restricted multilateral treaty requires acceptance by all the contracting parties’): Official Records, 1st and 2nd sessions, p 239. 117 Official Records, Summary Records, 1st session, p 111. See also, A. Pellet, Third Report on reservations to treaties, A/CN.4/491/Add.5, 17 July 1998, pp 3–7. 118 See A. Pellet, Third Report on reservations to treaties, A/CN.4/491/Add.5, 17 July 1998, pp 9–14. 119 A. Aust, supra n 29, pp 131–2; See A. Pellet, Third Report on reservations to treaties, A/CN.4/491/Add.5, 17 July 1998, pp 14–20. 120 YILC, 1966, vol. II, p 190. 121 See also Arts 12, para. 2(a); 14, para. 1(b); 15, para. (b); 24, para. 1; 25, para. 1(b) and para. 2 of the Convention. 122 See Arts 16, 17, 20, 22, 23, 40, 57, 77, 79. 123 For G. Fitzmaurice, the term ‘party’ may also ‘on occasion be used to denote States presumptively bound by a treaty not yet in force, by reason of having taken all the steps necessary for participation’, YILC, 1956, vol. II, p 108 (Art. 3, para. c). H. Waldock uses the term ‘presumptive party’ to refer to this particular notion, YILC, 1962, vol. II, p 31. 124 See Arts 21, 23, 25–31, 33, 35–37, 39–41, 43, 44, 54, 55–63, 65–67, 69–72. Note that Art. 66(a) and (b) of the Convention refers to the ‘parties to a dispute’.

125 P. Reuter, Second Report, YILC, 1973, vol. II, p 79. 126 YILC, 1966, vol. II, p 190. 127 ‘An “international organization” is an association of States with common organs which is established by treaty’: Report of J. L. Brierly, YILC, 1950, vol. II, p 223 (Art. 2, para. (1)(b)); ‘The term “international organization” means a collectivity of States established by treaty, with a constitution and common organs, having a personality distinct from that of its memberStates, and being a subject of international law with treaty-making capacity’: Report of G. Fitzmaurice (Art. 3, para. (b)), YILC, 1956, vol. II, p 109. 128 ‘A “State” is a member of the community of nations’: Report of J. L. Brierly, YILC, 1950, vol. II, p 223 (Art. 2, para. (a)). See also the Report of G. Fitzmaurice (Art. 3, para. (a)), YILC, 1956, vol. II, pp 107–8. 129 YILC, 1974, vol. II, p 142. 130 G. Fitzmaurice placed in square brackets the definition of international organizations for this reason, YILC, 1956, vol. II, p 117. 131 On this expression, see YILC, 1966, vol. II, p 190. 132 YILC, 1962, vol. II, p 31 (Art. 2, para.1(d)); see also pp 34–5. 133 Ibid, p 35. 134 See eg the intervention of the representative of Brazil at the meeting of Sixth Committee who was in favour of the deletion of the term ‘plurilateral treaty’ considered as artificial; A/C.6/SR.737, p 16. 135 YILC, 1962, vol. II, p 161 (Art. 1, para. 1(c)); see also comment on p 163. 136 Ibid, p 163. 137 YILC, 1965, vol. II, pp 13–14. 138 A/CONF.39/C.1/L.19/Rev.1 (amendment proposed by Congo (Democratic Republic of), Hungary, Poland, Romania, Ukrainian Soviet Socialist Republic, United Arab Republic, and United Republic of Tanzania), Official Records, 1st and 2nd sessions, p 234. See also A/CONF.39/C.1/L.385 proposed by Syria, id. 139 The initial proposal for a new Art. 5bis (A/CONF.39/C.1/L.74 and Add 1 and 2) was sponsored by Algeria, Ceylon, Hungary, India, Mali, Mongolia, Romania, Syria, the Ukrainian Soviet Socialist Republic, the United Arab Republic, and Yugoslavia; see Official Records, 1st and 2nd sessions, pp 236–7. 140 Ibid, pp 234 and 236–7. 141 Ibid, p 235. 142 Official Records, Summary Records, 1st session, pp 22–3. 143 For more on this issue, see also the commentary on Art. 15. 144 YILC, 1962, vol. II, p 163. 145 Id. 146 See A/C.6/SR.737 and A/C.6/SR.912, pp 68–9. See also the statement of Panama (A/C.6/SR.907). 147 See eg M. Frankowska, supra n 77, pp 308 ff. * Registrar of the International Tribunal for the Law of the Sea, Professor, University of Louvain (UCL), Belgium.

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Volume I, Part I Introduction, Art.2 1986 Vienna Convention Philippe Gautier From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Customary international law — Vienna Convention on the Law of Treaties — Treaties, interpretation — Treaties, application — Treaties, reservations and declarations — Treaties, effect for third states — Treaties, ratification — Treaties, signature

(p. 57) 1986 Vienna Convention Article 2 Use of terms 1. For the purposes of the present Convention: (a) ‘treaty’ means an international agreement governed by international law and concluded in written form: (i) between one or more States and one or more international organizations; or (ii) between international organizations, whether that agreement is embodied in a single instrument or in two or more related instruments and whatever its particular designation; (b) ‘ratification’ means the international act so named whereby a State establishes on the international plane its consent to be bound by a treaty; (b bis) ‘act of formal confirmation’ means an international act corresponding to that of ratification by a State, whereby an international organization establishes on the international plane its consent to be bound by a treaty; (b ter) ‘acceptance’, ‘approval’ and ‘accession’ mean in each case the international act so named whereby a State or an international organization establishes on the international plane its consent to be bound by a treaty; (c) ‘full powers’ means a document emanating from the competent authority of a State or from the competent organ of an international organization designating a person or persons to represent the State or the organization for negotiating, adopting or authenticating the text of a treaty, for expressing the consent of the State or of the organization to be bound by a treaty, or for accomplishing any other act with respect to a treaty; (d ) ‘reservation’ means a unilateral statement, however phrased or named, made by a State or by an international organization when signing, ratifying, formally confirming, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State or to that organization; (e) ‘negotiating State’ and ‘negotiating organization’ mean respectively: (i) a State, or (ii) an international organization, which took part in the drawing up and adoption of the text of the treaty; ( f  ) ‘contracting State’ and ‘contracting organization’ mean respectively: (i) a State, or (ii) an international organization, which has consented to be bound by the treaty, whether or not the treaty has entered into force; ( g) ‘party’ means a State or an international organization which has consented to be bound by the treaty and for which the treaty is in force; (h) ‘third State’ and ‘third organization’ mean respectively: (i) a State, or (ii) an international organization, not a party to the treaty; (i ) ‘international organization’ means an intergovernmental organization; ( j) ‘rules of the organization’ means, in particular, the constituent instruments, decisions and resolutions adopted in accordance with them, and established practice of the organization. 2. The provisions of paragraph 1 regarding the use of terms in the present Convention are without prejudice to the use of those terms or to the meanings which may be given to them in the internal law of any State or in the rules of any international organization. (p. 58) A. Object and purpose 58 B. Terms contained in paragraph 1 of Article 2 58

‘Treaty’ (Article 2, paragraph 1(a)) 58 Authors 58 ‘Governed by international law’ 58 ‘Ratification’, ‘act of formal confirmation’, ‘acceptance’, ‘approval’, and ‘accession’ (Article 2, paragraph 1(b), (b) bis and (b) ter) 60 ‘Full powers’ (Article 2, paragraph 1(c)) 61 ‘Reservation’ (Article 2, paragraph 1(d)) 61 ‘Negotiating State’ and ‘negotiating organization’ (Article 2, paragraph 1(e)) 62 ‘Contracting State’ and ‘contracting organization’ (Article 2, paragraph 1(f)) 62 ‘Party’ (Article 2, paragraph 1(g)) 62 ‘Third State’ and ‘third organization’ (Article 2, paragraph 1(h)) 62 ‘International organization’ (Article 2, paragraph 1(i)) 63 ‘Rules of the organization’ (Article 2, paragraph 1(j)) 64 C. Paragraph 2 of Article 2 65

A. Object and purpose 1. Article 2 duplicates mutatis mutandis the content of the corresponding provision in the 1969 Vienna Convention. Some adjustments were, however, required due to terms peculiar to international organizations. To this extent, the comments made with respect to Article 2 of the 1969 Vienna Convention are here relevant. For this reason, the comments will focus on the particular features of the 1986 Convention.

B. Terms contained in paragraph 1 of Article 2 ‘Treaty’ (Article 2, paragraph 1(a)) 2. Compared with the 1969 Convention, the 1986 Vienna Convention presents two distinct features relating (1) to the authors of the treaty as well as (2) to the requirement that the treaty be governed by international law.

Authors 3. Article 2 adjusts the definition of ‘treaty’ contained in the 1969 Convention to the scope ratione personae of the 1986 Convention, which constitutes the main difference between the two Vienna Conventions. The Convention only applies to treaties between States and international organizations or between international organizations and does not cover treaties concluded by other subjects of international law. Article 3 of the Convention, however, states that its provisions do not affect the validity of such agreements as well as the application to them of rules set forth in the Convention to which they would be subject under customary international law.

‘Governed by international law’ 4. In his report on the treaties concluded by international organizations, Paul Reuter suggested slightly amending the definition of treaty contained in the 1969 Convention by adding that the treaty should be governed ‘principally’ by ‘general’ international law. (p. 59) The addition of the term ‘principally’ was intended to clarify the distinction between treaties and contracts governed by a municipal law, a question which has already been examined in the context of the 1969 Convention.1 The insertion of the term ‘general’ international law was justified by the specific situation of agreements concluded by international organizations. According to P. Reuter, ‘[a] case might exist in which an international organization evolved a highly developed legal system of its own, to which it intended that a conventional act should be subject in its entirety’.2 This situation may occur in two instances. First, an agreement concluded between an organization and a State may be ‘subject to a special system of international law, entirely defined by the organization concerned’.3 Second, a more general situation could be envisaged in which it was the relations between the organization and the member States that were removed in their entirety from the sphere of general international law and were subject to a system which was decidedly special and which could be described as an international system, even though in an increasing number of treaties this system would no longer have many of the ‘traditional’ features of public international law.4 The Rapporteur considered it appropriate to exclude such agreements from the scope of the draft Convention. This result would be achieved by the insertion of the adjective ‘general’ to qualify ‘international law’ in the definition of the term ‘treaty’ in the draft Convention. The proposals from P. Reuter, however, were not retained by the Commission which, for the sake of consistency, preferred to keep mutatis mutandis the definition as included in the 1969 Convention. 5. Pursuant to the approach which has been adopted with respect to the 1969 Convention, one may therefore consider that the definition in the 1986 Convention covers all agreements concluded by international organizations with States or other international organizations to

the extent they are subject to international law. In this respect, the Convention remains silent on the legal nature of agreements which in their entirety would be subject to a special system of international law; ie entirely governed by the internal rules of an organization. If one argues by analogy with what was stated as regards agreements entirely subject to the municipal law of a State, it could be plausibly stated that the 1986 Convention would not apply to agreements entirely governed by internal rules of an organization.5 That said, it may be noted that, as stated by the Special (p. 60) Rapporteur, the relevance of the hypothesis just described ‘is not for the time being clearly apparent’.6 6. Although the 1986 Convention has not yet entered into force, the definition of the term ‘treaty’ included therein is in line with the definition of the 1969 Convention and, on that basis, may be considered as reflecting international customary law.7

References 7. As stated in the context of the 1969 Convention, the treaty as defined in the 1986 Convention does not exhaust the definition ‘sensu lato’ of the term ‘treaty’. It constitutes the core notion of a broader definition under general international law which includes agreements not concluded in writing as well as agreements concluded by subjects of international law other than States and international organizations.

‘Ratification’, ‘act of formal confirmation’, ‘acceptance’, ‘approval’, and ‘accession’ (Article 2, paragraph 1(b), (b) bis and (b) ter) 8. Article 2 makes use of the expressions defined in the 1969 Convention while adapting them in order to take into account the participation of international organizations in the treatymaking process. Comments which were made with respect to the terms as contained in the 1969 Convention are applicable to the corresponding definitions in the 1986 Convention, subject to the following observations. 9. Pursuant to the 1986 Vienna Convention, the term ‘ratification’ is exclusively reserved for the expression of consent by a State. As regards the consent expressed by an international organization, the Convention uses the term ‘act of formal confirmation’, the definition of which is inserted in Article 2, paragraph 1(b) bis.8 This distinction is the result of an agreed definition and this does not prevent the use of a different terminology.9 In this respect, it may be noted that while some treaties make use of the expression ‘act of formal confirmation’,10 other treaties, which are open to the participation of international organizations, do not make a distinction between States and international organizations as regards the terms used to refer to the expression of consent to be bound by them.11

References

(p. 61) ‘Full powers’ (Article 2, paragraph 1(c)) 10. During its consideration of the draft Articles, the Commission proposed to confine the term ‘full powers’ to documents produced by representatives of States and to use the term ‘powers’ with respect to those produced by representatives of international organizations. This terminology was justified, in the view of the Commission, for the reason that ‘no organ of an international organization has general competence to represent the organization in the way that a Head of State or Minister for Foreign Affairs has general competence to represent the State’.12 A further distinction was contained in Article 2, paragraph 1 of the draft, which stated that, by virtue of ‘powers’, the representative of an organization was ‘communicating’ the consent of the organization while, in the case of ‘full powers’, the States' representative was ‘expressing’ the consent of the State. The reasons invoked for this distinction are not entirely convincing13 since, in the cases of States and international organizations, the powers serve the same purpose; they designate the person competent to ‘express’ or ‘communicate’ the consent of the competent organ of the entity concerned. That said, during the second reading of the draft, the Commission decided to drop the verb ‘communicate’ and to use the verb ‘express’ in both instances.14 The distinction between full powers and powers may also be considered as artificially drawn.15 It was not retained by the Vienna Conference and the same expression—‘full powers’—is used in respect of States and organizations.

‘Reservation’ (Article 2, paragraph 1(d)) 11. The term ‘reservation’ in the 1969 Convention has been reproduced in the 1986 Convention without any modification of substance. The Special Rapporteur did not see any theoretical or practical reason to depart from the 1969 definition.16 12. At first, the Commission suggested amending the definition of the term contained in the 1969 Convention. Instead of listing the different means of expression of consent to be bound by a treaty, it was felt preferable to refer to them through the general expression ‘by any agreed means’.17 Thereafter, the Commission changed its mind and followed the approach adopted in the 1969 Convention and consisting in an enumeration of the usual means to express consent. 13. No new development needs to be reported on the issue of reservation. On this matter, Paul Reuter, the Special Rapporteur, observed that treaties concluded by international organizations ‘are almost always bilateral treaties’ and that with respect to these (p. 62) treaties reservations ‘may come into play in theory but are of no interest in practice’.18 The Commission also considered the issue of reservation with respect to bilateral treaties concluded between international organizations. It took the view that this procedure could be of

interest for the member States of the organizations since, ‘the opportunity for an international organization to formulate a reservation, even at a stage of formal confirmation, would afford the States members of that organization useful safeguards with respect to undertakings signed too hastily’.19 But the Commission did not wish to reopen a debate on this question and kept the approach contained in the 1969 Convention, ‘although most of its members considered that the régime of reservations could not be extended to bilateral treaties without distorting the notion of a “reservation” ’.20

‘Negotiating State’ and ‘negotiating organization’ (Article 2, paragraph 1(e)) 14. For obvious reasons, the 1986 Convention has added to the expression ‘negotiating State’ the expression ‘negotiating organization’. In conferences convened under the auspices of international organizations, secretariats of international organizations are often active in the process of elaboration of treaties which are open to States only. It was therefore felt useful to indicate that what was specifically envisaged by the provision was the participation in the negotiation process of an organization ‘as a potential party to the treaty’.21 This was, however, not retained by the Commission which considered that: Since the term ‘treaty’ refers here to a category of conventional acts different from that covered by the same term in the [1969] Vienna Convention, the wording need not allow for the fact that international organizations sometimes play a special role in the negotiation of treaties between States by participating through their organs in the preparation, and in some cases even the establishment, of the text of certain treaties.22

‘Contracting State’ and ‘contracting organization’ (Article 2, paragraph 1(f)) 15. These expressions do not call for any particular comment. We may simply refer to the observations made with respect to the term ‘contracting State’ in the 1969 Convention.

‘Party’ (Article 2, paragraph 1(g)) 16. The definition of the term ‘party’ is similar to the corresponding term in the 1969 Convention, with the precision that it covers, in the 1986 Convention, both States and international organizations.

‘Third State’ and ‘third organization’ (Article 2, paragraph 1(h)) 17. The term ‘third State’ was already included in the 1969 Convention. The term ‘third organization’ was added in the paragraph. Both terms are defined in a negative way and refer to a State or an organization which is not a party to a treaty. 18. As regards the situation of international organizations, Paul Reuter noted in his Second Report that it was not unusual for an organization, while not a party to a treaty, (p. 63) to benefit from rights or assume obligations by virtue of the provisions of this treaty. This may happen, for example, in the case of treaties addressing matters relating to international organizations which are only open to the participation of States. A first example relates to a treaty conferring rights and obligations to an international organization which, however, is not party to it. As an illustration, reference may be made to the 1946 Convention on the privileges and immunities of the United Nations. According to the position of the UN Secretariat, the status of the United Nations vis-à-vis this convention is similar to the status of a party. The question might be asked, however, as to whether ‘the United Nations technically has the position of a party in respect of all the problems which may arise in connexion with the life of the Convention and particularly its revision’.23 In this case, it will be necessary to assess whether the organization may be considered as a party to the treaty through some ‘tacit collateral agreement’ or has rights and obligations derived from the provisions of the treaty concerned as a third party to it. 19. Another case envisaged by Paul Reuter concerns an agreement binding upon an organization which, however, [does] not confer on the organization the powers normally enjoyed by parties to a treaty in regard to the administration or revision of the Convention or participation, with the right to vote, in the organs established by the Convention.24 For this reason, the Special Rapporteur suggested in his Fourth Report that, in the case of an organization, the term ‘party’ should be confined to the situation where an organization ‘whose relations with the treaty are in every respect comparable to those of the States Parties’.25 This proposal was not endorsed by the Commission and probably for good reasons. It is difficult to justify that the status of a party should be denied to an organization which is bound by it, even if its participation in the operation of the treaty is subject to a specific legal regime. This is for example the situation of the European Community, as an international organization party to the 1982 United Nations Convention on the Law of the Sea, on the basis of the specific provisions set out in Annex IX to the Convention.26 In addition, it may be observed that an analogous situation—where there is no strict equality among parties—may also be found in treaties to which States are parties.27

References

‘International organization’ (Article 2, paragraph 1(i)) 20. The definition is identical to the term included in the 1969 Convention. It is interesting to note that, during the discussion within the Commission, it was observed that the definition was not addressing the situation of ‘international organizations which included other international organizations in their membership’.28 According to the Commission, the definition (p. 64) should be understood in the sense given to it in practice: that is to say, as meaning an organization composed mainly of States, and in some cases having associate members which are not yet States or which may even be other international organizations…29 The expression does not introduce any distinction between intergovernmental organizations depending on whether they are universal or regional in character.

‘Rules of the organization’ (Article 2, paragraph 1(j)) 21. The expression ‘rules of the organization’ in Article 2 of the 1986 Convention plays a critical role in the Vienna Convention. It controls the capacity of the organization to conclude treaties (Art. 6). In addition, the violation of the rules of an organization regarding its competence to conclude treaties may, by virtue of Article 46 of the Convention, invalidate the consent of the organization. That explains the interest generated by this expression in the preparatory works of the Convention.30 22. The expression was introduced in the draft Articles in 1977. Its wording repeated verbatim31 the expression contained in Article 1, paragraph 1(34) of the 1975 Vienna Convention on the Representation of States in Their Relations with International Organizations of a Universal Character:32 ‘ “rules of the Organization” means, in particular, the constituent instruments, relevant decisions and resolutions, and established practice of the Organization’.33 23. The expression ‘resolutions and decisions’ is not intended to give a comprehensive list of all terms used to designate acts adopted by organizations. It constitutes a general formula intended to cover all legislative acts adopted by organizations. This interpretation is confirmed by the inclusion of the words ‘in particular’ in the definition.34 24. The wording of the provision in Article 2, paragraph 1(j) adopts a certain order based on legal hierarchy; it starts with the constituent instrument, followed by the decisions and resolutions adopted in accordance with the constituent instrument, and then the established practice of the organization. The major difficulty lies with the expression ‘established practice’. This expression may be understood as referring to a form of customary law.35 To this extent, the term presupposes a well-recognized practice. A practice in nascendu, ie at an early stage of its development, would not be sufficient. The view was therefore taken that this expression would prevent organizations from developing new (p. 65) fields of activities.36 On the contrary, others considered that this would confer too much freedom to organizations since the expression does not require that the practice be in accordance with the constituent instrument of the organizations.37 In fact, it seems that the formula does not antagonize any of these two positions. It requires that the practice be sufficiently established and recognized but, at the same time, does not prevent the development of a practice in the absence of clear provisions to that effect in the constituent instrument. As stated by the Commission: by referring to ‘established’ practice, the Commission seeks only to rule out uncertain or disputed practice; it is not its wish to freeze practice at a particular moment in an organization's history.38

C. Paragraph 2 of Article 2 25. Paragraph 2 of Article 2 of the 1986 Convention simply reproduces the wording of the corresponding provision of the 1969 Convention, with the addition of a reference to the rules of international organizations. In this respect, it may be noted that in selecting the term which would be used to refer to the internal law of organizations, the Rapporteur did not consider that the expression ‘internal law of an international organization’ would be appropriate, for this expression often refers to ‘State law’.39 He therefore suggested the expression ‘law peculiar to any international organization’. Finally, the Commission chose the expression ‘rules of any international organization’.40 This latter expression is in conformity with the approach adopted by the Convention, the terms ‘rules of the organization’ being defined in Article 2, paragraph 1(j) of the 1986 Convention. *

PHILIPPE GAUTIER

Footnotes: 1 See commentary on Art. 2 of the 1969 Convention, supra at paras 20 ff. 2 YILC, 1974, vol. II, p 140. 3 Paul Reuter refers to the case where a financial institution which adopted ‘regulations,’ ‘codes’ or ‘guidelines’ governing completely any relations between it and a State following a financial transaction embodied in a conventional act between it and that State. He also mentions the possibility for the UN to conclude agreements which, rather than being governed by general public international law, will remain strictly

subordinate not only to the Charter but also to a complex system of administrative and financial decisions and rules which in fact constitute the special law of the United Nations (YILC, vol. II, p 140 and n 27). 4 YILC, 1974, vol. II, p 140. 5 See eg J. Rideau, Droit institutionnel de l'Union et des Communautés européennes (3rd edn, Paris: LGDJ, 1999), p 230: La Conférence qui a élaboré la convention de Vienne de 1986 a renoncé, après la Commission du Droit international, à se prononcer sur les accords entre Etats membres ou entre l'organisation et un Etat membre en exécution de la charte constitutive. C'est le système propre de chaque organisation qui précise le statut de ces accords. Les solutions communautaires sont incertaines. 6 YILC, 1974, vol. II, p 140. 7 See eg the judgment of the CJEC of 9 August 1994 in Case C-327/91 France v Commission [1994] ECR I-3674, para. 25, relating to an agreement concluded between the European Commission and United States: There is no doubt, therefore, that the Agreement is binding on the European Communities. It falls squarely within the definition of an international agreement concluded between an international organization and a State, within the meaning of Article 2(1)(a)(i) of the Vienna Convention of 21 March 1986 on the Law of Treaties between States and International Organizations or between International Organizations. 8 The Commission considered…that the term ‘ratification’ should be reserved for States, since in accordance with a long historical tradition it always denotes an act emanating from the highest organs of the State, generally the Head of State, and there are no corresponding organs in international organizations (YILC, 1975, vol. II, p 179). 9 ‘One of the delegates of the European Community, Mr Hardy, made the following statement in the Plenary on 20th March 1986: “The European Community would propose in keeping with its past practice to continue to conclude agreements by ratification in appropriate cases” ’, quoted by G. Gaja, ‘A “new” Vienna Convention on treaties between States and international organizations or between international organizations: a critical commentary’, BYBIL, 1987, p 258, fn 19. 10 See eg Art. 3 of Annex IX to the 1982 United Nations Convention on the Law of the Sea. 11 See eg Art. 34 of the Convention on Biological Diversity: ‘This Convention and any protocol shall be subject to ratification, acceptance or approval by States and by regional economic integration organizations…’. See also Art. 13 of the Vienna Convention on the Protection of the Ozone Layer and Art. 25, para. 2 of the Convention on Conservation and Management of Fishery Resources in South East Atlantic Ocean. 12 See Art. 2, paras 1(c) and 1(c) bis of the draft Articles in YILC, 1975, vol. II, p 176. 13 ‘…in view of the rather frequent gaps and ambiguities in constituent instruments, the term [‘expressing’] might be understood in some cases as giving the representative of an international organization the right to determine by himself, as representative, whether or not the organization should be bound by a treaty. A means of avoiding that doubt in such cases seemed the use of the verb “communicate” instead of the verb “express,” since the former indicates more clearly that the consent of an organization to be bound by a treaty must be established according to the constitutional procedure of the organization' (YILC, 1981, vol. II, p 123). 14 YILC, 1982, vol. II, p 19. 15 See in particular the comments on the draft Articles by the United Nations (YILC, 1981, vol. II, p 197) and Federal Republic of Germany (ibid, pp 185–6). 16 ‘…the fact that international organizations are not parties to multilateral treaties would suffice to explain why the practice of reservations does not exist among international organizations’ (YILC, 1974, vol. II, p 141). Incidentally, one may note that his statement does not reflect the situation which prevails nowadays. 17 YILC, 1974, vol. II, pp 294–5. 18 YILC, 1975, vol. II, p 36. 19 YILC, 1977, vol. II, Part Two, p 106; see also Third Report of Alain Pellet on reservation to treaties, A/CN.4/491/Add.5, 17 July 1998, p 8. 20 YILC, 1977, vol. II, Part Two, p 106. 21 YILC, 1974, vol. II, p 141. 22 Ibid, p 295. 23 YILC, 1973, vol. II, p 80. 24 Ibid. Paul Reuter refers inter alia to commodity agreements or agreements ‘which have made it possible for international organizations to participate in certain international conventions concerning outer space’. 25 YILC, 1975, vol. II, p 31.

26 See eg Arts 2, 3, and 4 of Annex IX to the Convention. 27 See eg YILC, 1975, vol. I, p 222, with reference to the Antarctic Treaty of 1959 where there are two types of party. 28 YILC, 1974, vol. II, pp 295–6. 29 YILC, 1974, vol. II, p 148. 30 See G. E. do Nascimento e Silva, ‘The 1969 and the 1986 Conventions on the Law of Treaties: A Comparison’ in International law at a time of perplexity. Essays in Honour of S. Rosenne (The Hague: Kluwer, 1989), pp 471–3. 31 YILC, 1977, vol. II, Part Two, p 118. 32 A/CONF.67/16. 33 Paul Reuter proposed the deletion of the word ‘relevant’ qualifying ‘resolutions and decisions’. Since the paragraph is referring to all the rules of the organization, the term ‘relevant’ was, in his view, ‘out of place’ (see YILC, 1981, vol. II, p 51). The Commission nevertheless retained the qualification ‘relevant’. It may be noted that during the Vienna Conference, Switzerland proposed to drop the term ‘relevant’ for the same reasons as those explained by P. Reuter (Official Records, Summary Records, 1st session, vol. I, p 47. Contra, see the statement of China, in ibid, p 48). The term was finally deleted in the draft prepared in the framework of consultations held under the chairmanship of the President of the Conference (Official Records, Summary Records, 2nd session, vol. II, pp 64–5). 34 See YILC, 1981, vol. II, p 51 and vol. II, Part Two, p 124. 35 See YILC, 1974, vol. I, p 163. 36 ‘…it seems doubtful that the word “established” should be retained as a qualification to “practice,” because to do so might prevent further development and adaptation to future needs of international organizations’ treaty practice' (Comments from the United Nations, YILC, 1981, vol. II, Part Two, pp 197–8). See also the statement of Mr Tuerk, representative of Austria, during the Vienna Conference, Official Records, Summary Records, 1st session, vol. I, p 45. 37 See the comments from the German Democratic Republic which proposed to further qualify the notion of practice and to refer to ‘practice established in accordance with the constituent instruments’, YILC, 1981, vol. II, Part Two, p 184. See also Romania's comments (ibid, p 189); contra, United Kingdom, ibid, p 191. The question was also debated during the Vienna Conference; for a restrictive approach, see the statements made by the representatives of Czechoslovakia and Chile in Official Records, Summary Records, 1st session, vol. I, p 48. Contra, the statements by Austria and Switzerland, ibid, pp 45 and 47. See also the preamble of the 1986 Convention which recognizes ‘that the practice of international organizations in concluding treaties with States or between themselves should be in accordance with their constituent instruments’. On this matter, see F. Morgenstern, ‘The Convention on the Law of Treaties between States and International Organizations or between International Organizations’ in International law at a time of perplexity, supra n 30, p 442. 38 YILC, 1981, vol. II, p 125. See, however, G. Gaja, supra n 9, p 262: ‘The requirement that practice should be “established” in order to be taken into account may cause some difficulties, as all the treaties for which there is no provision in the constituent instrument would have to be considered invalid until practice has developed sufficiently’. 39 YILC, 1974, vol. II, pp 143–4. 40 Ibid, pp 296–7. * Registrar of the International Tribunal for the Law of the Sea, Professor, University of Louvain (UCL), Belgium.

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Volume I, Part I Introduction, Art.3 1969 Vienna Convention Yves le Bouthillier, Jean-François Bonin From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — State succession, international agreements — Subjects of international law — National liberation movements — Territory, dependent — Belligerents — Insurgents and insurrection

(p. 66) 1969 Vienna Convention Article 3 International agreements not within the scope of the present Convention The fact that the present Convention does not apply to international agreements concluded between States and other subjects of international law or between such other subjects of international law, or to international agreements not in written form, shall not affect: (a) the legal force of such agreements; (b) the application to them of any of the rules set forth in the present Convention to which they would be subject under international law independently of the Convention; (c) the application of the Convention to the relations of States as between themselves under international agreements to which other subjects of international law are also parties. A. Object and purpose 66 The innocuousness of the Convention in regard to international agreements excluded from its scope 67 The application of the Convention to international agreements known as ‘trilateral’ or ‘mixed’ 68 B. Excluded international agreements 69 International agreements not in written form 69 Their nature 69 Reasons justifying their exclusion from the Convention 71 International agreements between subjects of international law other than States 71 Their nature 71 International organizations 72 The Holy See 72 Insurgent movements 73 National liberation movements 73 Territorial entities dependent on States 74 Entities created to administer territories 74 Others 74 Reasons justifying their exclusion from the Convention 75

A. Object and purpose 1. The word ‘treaty’ is most commonly associated with the concept of a written agreement between two or more States and this is precisely how it is defined in the 1969 Vienna Convention on the Law of Treaties. However, international law has for a long time recognized that treaties can be in non-written form and that subjects of international law other than States can be parties to treaties. While the Convention does not propose any rules for these kinds of agreements, Article 3 of the Convention makes it clear that the validity of these agreements is not diminished by the adoption of the Convention and that the relations between States in agreements involving other subjects of international law are governed by it.

(p. 67) The innocuousness of the Convention in regard to international agreements excluded from its scope 2. While Articles 1 and 2 delimit the scope of the Convention in an inclusive manner, Article 3 takes an exclusionary approach by listing international agreements not covered by the Convention. However, the main object of Article 3 is not so much to affirm this exclusion but rather to assert, in its first two paragraphs, that this exclusion does not undermine international agreements not in written form or those which have not been concluded between two or more States.1 3. With regard to non-written international agreements which are excluded by Article 2 from the reach of the Convention, paragraphs (a) and (b) of Article 3 aim to dispel any impression that oral or tacit agreements have no legal force or are not governed by rules forming the law of treaties.2 Article 3 ‘expressly preserves such legal force as oral agreements possess under international law’ and accordingly, ‘remove any possibility of misunderstanding’.3 For the ILC this clarification is needed given the definition of treaty ‘as an international agreement concluded in written form’.4 4. The object of paragraphs (a) and (b) is identical with regard to treaties to which at least one of the parties is not a State.5 Again, the object of Article 3 is to prevent an interpretation

that would suggest that international agreements involving other subjects of international law falling outside the Convention are not covered by treaty law.6 The (p. 68) Commission explained that because agreements of this nature are now frequent, it ‘considered it desirable to make an express reservation in the present Article regarding their legal force and the possible relevance to them of certain rules expressed in the present articles’.7 5. Throughout the process of codifying the law of treaties, Article 3 was referred to as a ‘safeguard clause’ or a ‘reservation’.8 These qualifications imperfectly convey the true nature of this provision given, as explained supra, that its primary purpose is to counter the interpretation that some agreements which used to be governed by international law would no longer be within its ambit after the adoption of the Convention. However, this also means that this Article is of no relevance to agreements which are not governed by international law,9 such as agreements for the acquisition of goods between two States,10 or agreements between a State and an individual or a corporation.11 In addition, Article 3 is equally of no relevance to forms of States' conduct that, while governed by international law, do not qualify as oral treaties, such as unilateral declarations.12

The application of the Convention to international agreements known as ‘trilateral’ or ‘mixed’ 6. Paragraph (c) deals specifically with international agreements concluded between States but to which one or more other subjects of international law are also parties. These agreements are known as ‘trilateral’ or ‘mixed’ agreements. The introductory paragraph of Article 3 states that the Convention does not apply to these agreements. However, paragraph (c) specifies that relations between States parties to these agreements are governed by the Convention. Other relations, either between other subjects of international law which are also parties to the agreement, or between these subjects and the States parties, remain outside the scope of the Convention.13 (p. 69) 7. The text of Article 3 that was submitted for consideration by the Plenary Commission of the Diplomatic Conference was silent on the legal force of such treaties as well as on the law applicable to them. It was ‘following a quite spontaneous initiative’ of the Drafting Committee that paragraph (c) was added to Article 3.14 As explained by its chairman Yasseen, this had to be seen as ‘a complement to the general rule set forth in the introduction’.15 Indeed, the effect of the introductory paragraph of Article 3 is to remove the complex and indivisible relations involving both States and other subjects of international law from the application of the Convention. On the other hand, the relations between States in those mixed international agreements remain subject to the Convention.16 In other words, it was deemed advisable not to exclude these latter agreements from the scope of the Convention: ‘a conclusion which might have been reached by a reasonable interpretation of the text of the original article’.17 8. Paul Reuter, Special Rapporteur on the question of treaties concluded between States and international organizations or between two or more international organizations, was of the view that paragraph (c) of Article 3 of the 1969 Convention had very limited application. He evoked the scenario of an international organization adhering to a treaty concluded by a limited number of States, the treaty providing for the role to be played by the organization in question.18 The classical example, according to Reuter, ‘is the agreements concluded for the supply of fissionable material between two States (one supplying and the other receiving) and IAEA [International Atomic Energy Agency] (which supervises)…’.19 However, he added that such a trilateral treaty is not the usual mechanism to which States resort to entrust an international organization with specific functions. Instead, in most cases, ‘the organisation will perform the functions provided for in the treaty, usually without specific act of acceptance’.20

B. Excluded international agreements International agreements not in written form Their nature 9. Despite the absence of formalism that characterizes all unwritten international agreements,21 they are recognized as instruments generating rights and obligations for States parties to them. As with written agreements, they are the result of a common (p. 70) intention.22 However, the debates between the members of the Commission did not lead to the identification of general rules on the law of treaties that would be applicable to this kind of agreement.23 10. Consent to an oral agreement can be expressed in a joint statement by two States. A common intention to be legally bound can also be based on conduct.24 11. These types of treaties are rare. Hence, the Commission consistently referred to the same case, the decision of the Permanent Court of International Justice in the Legal Status of Eastern Greenland case in which the Court concluded that an oral exchange between the representatives of two States resulted in an agreement.25 State practice in this regard since the adoption of the Convention is also very infrequent.26 In his book on the law of treaties, Aust includes under the heading ‘oral agreement’ only one recent example of a telephone conversation between the prime ministers of Denmark and Finland during (p. 71) which they would have accepted legally binding commitments concerning the construction of a bridge between their countries.27

References

12. The fact that there are few oral agreements is not surprising given the difficulties resulting from these kind of agreements such as the impossibility of registration,28 and consequently, due to Article 102 of the United Nations Charter, the prohibition to invoke them before any organ of the United Nations. This practice belongs more to a past era when secret diplomacy was commonplace.29

References

Reasons justifying their exclusion from the Convention 13. To justify its decision to exclude this type of agreement from the Convention, the Commission explained that the vast majority of the proposed provisions presupposed the existence of a written agreement: oral agreements were too remote from the concept of a ‘treaty’ to make it possible to deal with them in a code on the law of treaties, every provision of which almost necessarily has to be worded in such a way as to contemplate directly only the written instrument, or else assumes the existence of an instrument in written form.30 14. Moreover, extending the applicability of the Convention to this kind of agreement would have required the insertion of provisions specific to them, adding to an already complex exercise.31 Therefore, the Commission decided to limit its work to written international agreements ‘in the interests of clarity and simplicity’.32

International agreements between subjects of international law other than States Their nature 15. As stated by the International Court of Justice, subjects of international law ‘are not necessarily identical in their nature or in the extent of their rights’.33 Given the purpose of the Convention, the subjects envisaged by Article 3 are those with the capacity to (p. 72) conclude international agreements. However, Article 3 does not provide either a definition or a closed list of such subjects. For the Commission: The term ‘treaty’, as used in the draft article, covers only international agreements made between ‘two or more States or other subjects of international law’. The phrase ‘other subjects of international law’ is designed to provide for treaties concluded by: (a) international organisations, (b) the Holy See, which enters into treaties on the same basis as States, and (c) other international entities, such as insurgents, which may in some circumstances enter into treaties.34

References 16. Today, it is commonly accepted that the following entities have the capacity to conclude treaties, even if this capacity is limited.35

International organizations 17. The 1986 Convention on the Law of Treaties between States and International Organisations or Between International Organisations codifies the rules applicable to treaties concluded by these entities. Article 6 of the 1986 Convention expressly recognizes the capacity of these organizations to conclude treaties.36

The Holy See 18. The Holy See is a party to a significant number of treaties,37 as was often mentioned by the Commission during its work on the proposed Articles.38 Two theses have been advanced to justify this capacity. For some it is based on the territorial dimension of the Holy See which was terminated with the defeat of the Pontifical State in 1870 and reconstituted with the Latran Treaty in 1929 when Italy recognized the sovereignty of the Holy See on the territories forming Vatican City.39 For others, this capacity is grounded in the spiritual dimension of the Holy See.40 However, as noted by Bartoš, ‘there was no practical difference between States with different theoretical ideas’ since ‘all agreed that it (p. 73) possessed international juridical personality and the capacity to conclude international treaties’.41

References Insurgent movements 19. Insurrectional movements regarded as belligerents have the capacity to conclude treaties, for instance an agreement with a State on the conduct of hostilities.42 The status of belligerence can be granted by a State, including the one involved in the civil war, on condition, however, that the insurgents have de facto control on part of the territory and that the civil war has reached a significant level of intensity and has lasted for a sufficient period of time.43 As noted by Cassese, this status has rarely been granted.44

National liberation movements 20. The struggle for decolonization gave birth to new subjects of international law. The Commission does not mention these in its work but it is now well accepted that groups known 45

as national liberation movements have the capacity to conclude treaties.45 These mostly consist of bilateral treaties concluded with a State against which the movement is fighting.46 21. These movements are distinct from insurrectional movements since, as explained by Capotorti, their acquisition of an international personality depends on a legitimate right to self-determination and not, like the latter, on the control of part of a territory.47

(p. 74) Territorial entities dependent on States 22. These entities are generally, but not exclusively, part of a federal State.48 The rules of international law leave it to each federal State to determine if its own components should have the capacity to conclude treaties.49 If a State's constitution grants this capacity, these subentities enter the realm of international law precisely because they are able to conclude treaties.50 23. Whether one entity is called a State, a ‘canton’, a ‘land ’, or a province, it is ultimately for each State to determine what should be the capacity of that particular entity. In some federations the power to conclude treaties is vested exclusively in the federal government.51 Some States have granted this capacity to their federated entities in specific areas,52 while other States have extended such capacity to all areas falling within the competences of these entities.53

Entities created to administer territories 24. Some entities created by treaties to administer a territory have been given, expressly or implicitly, the power to conclude treaties to fulfil their mandate.54 The Free City of Danzig established by the Versailles Treaty is the typical example of this kind of entity which, while it had limited powers, was similar to States with regard to the conclusion of treaties, as noted by Brownlie.55

Others 25. There is a strong consensus that the entities listed supra have the capacity to conclude treaties. The same consensus also exists on the lack of capacity of individuals and corporations to conclude treaties.56 Whether other entities have this capacity has been the object (p. 75) of debate among experts. Many are of the view that the agreements signed between the International Committee of the Red Cross (ICRC) and States or international organizations are indeed treaties.57 For others, such as Éric David, the relations of the ICRC with States and international organizations do not belong strict sensu to the sphere of international law given the status of the ICRC as a private entity.58

Reasons justifying their exclusion from the Convention 26. As early as 1951 the Commission took the decision to focus its efforts on international agreements between States. However, given the ever-increasing number of agreements involving international organizations, it did not exclude possible later examination of whether the Articles of the draft Convention could apply ‘as they stood’ to such organizations.59 The Commission restated this approach in 1959, noting that if the question of treaties concluded between States and international organizations or between the latter is of ‘first importance’,60 it was nevertheless preferable to limit its work initially to the study of treaties between States. For one thing, this question is in itself a ‘difficult and complex one’,61 and moreover, the ‘main principles and rules can most effectively and certainly be established on the basis of the traditional case of treaties between States’.62 As in 1951, the Commission left the door open to modify the Articles in the future in order to take into account (or even add a chapter on) international organizations.63 27. This did not deter Waldock from inserting in his First Report an Article on the capacity of international organizations to conclude treaties on the basis that, even if an additional chapter would be needed to deal with these organizations, they should still be mentioned in the general Article on the capacity to conclude treaties.64 Later, in 1965, Waldock changed his opinion and suggested deleting the reference to international organizations in order clearly to reflect the Commission's decision to draft a convention concerned exclusively with State treaties.65 By endorsing this suggestion, the Commission effectively decided not to pursue past proposals to add to the Convention a chapter on this issue.66 As some pointed out, this was a wise and prudent approach as it eliminated (p. 76) the risk that rules designed for treaties between States became automatically applicable to other types of agreements without the benefit of an indepth study by the Commission.67 28. Once the decision was taken to exclude international organizations from the scope of the Convention, a few members of the Commission asked that the Convention be made applicable to other subjects of international law such as the Holy See. However, some States expressed their dissatisfaction that international organizations had been left aside.68 While States present at the Conference accepted this decision, they also adopted a resolution recommending that the General Assembly refer the study of treaties concluded by international organizations to the Commission.69 29. The issue of whether it was necessary to deal with federated entities was discussed within the context of Article 6 instead of Article 3. For the Commission, the question was not to determine whether a federated entity could be a subject of international law and party to a treaty but rather whether the Convention should include a provision that a State member of a federation had this capacity to the extent recognized by the constitution of the federation in question. In the end, Article 6 did not make any mention of federated entities.70 This, however, does not prejudice the possible relevance of Article 3 to an agreement concluded by a federated State.

30. While international agreements involving the entities discussed supra do not fall within the scope of the Convention, it is worth repeating that the purpose of Article 3 was to ensure that their legal validity was not questioned by the Convention. In fact, many of the rules of the Convention that have since then acquired customary status can be transposed to these agreements. As a result the Convention has indirectly contributed to the clarification of rules applicable to agreements excluded from its scope. *

YVES LE BOUTHILLIER

JEAN-FRANÇOIS BONIN **

Footnotes: 1 The provision found in the draft Articles on the law of treaties in the 1965 and 1966 annual reports of the ILC, and which was introduced at the opening of the Diplomatic Conference is, except for treaties known as ‘trilateral’ or ‘mixed’, quite similar to the final wording of Art. 3 of the Convention. See YILC, 1965, vol. II, p 160 and YILC, 1966, vol. II, p 190. Article 3 was nevertheless modified following a Mexican proposal to replace, at the end of para. (b), the words ‘independently of these articles’ (ie the Articles of the Convention) by the words ‘in accordance with international law’, Official Records of the UN Conference on the Law of Treaties, Report of the Committee of the Whole, Article 3, B. Amendments, p 114, para. 43. At a meeting of the Committee of the Whole, where the wording, ‘in accordance with international law independently of the Convention’ was adopted, the Chairman of the drafting Committee, Yasseen, explained that this modification emphasized that the Convention ‘permitted the application not only of the old rules which had been codified, but also of new rules drawn up to promote the progressive development of international law’. He added that ‘if a new custom grew up on the basis of the articles which stated new rules, that custom would apply’. See Official Records of the UN Conference on the Law of Treaties, Report of the Committee of the Whole, 1st session, 28th meeting, p 146, para. 6. 2 See Report of the ILC to the General Assembly, YILC, 1966, vol. II, p 190, para. 3. Special Rapporteur Fitzmaurice summarized in the following terms the objective sought by the proposed text: if the Article merely stated that the code related only to agreements in writing, the impression might be created that agreements not in writing were necessarily not valid…it was important to stress that the code would not affect the situation of unwritten agreements, dependent on general legal principles outside the scope of the code (YILC, 1959, vol. I, 480th meeting, p 5, para. 37). 3 Report of the ILC to the General Assembly, YILC, 1962, vol. II, p 164, para. 2 of the commentary on Art. 2. 4 Report of the ILC to the General Assembly, YILC, 1966, vol. II, p 190, para. 3. 5 The ILC decided in 1965 to restrict the scope of the draft Articles to treaties between States. See YILC, 1965, vol. I, 816th meeting, p 280, Articles proposed by the Drafting Committee. As a result, it excluded from the scope of the Convention international agreements between a State and an international organization or another subject of international law, between international organizations, or between two or more other subjects of international law which are not States. 6 Report of the ILC to the General Assembly, YILC, 1966, vol. II, p 190, para. 2. See also the synthesis of the Cuban representative at the Vienna Conference. As he explained, the purpose of paras (a) and (b) of Art. 3 is to state that the draft Articles did not affect the legal force of those types of international agreements which had been excluded from their scope; ‘those agreements were governed by the relevant legal principles, the application of which was also in no way affected by the draft articles;…the substantive rules set forth in the draft articles could be applied to those agreements’. See Official Records of the UN Conference on the Law of Treaties, Report of the Committee of the Whole, 1st session, 7th meeting, p 38, para. 36. He was reformulating the commentary of the ILC in its last report on the subject. 7 Report of the ILC to the General Assembly, YILC, 1966, vol. II, p 190, para. 2. 8 See the intervention of Ago, YILC, 1962, vol. I, 638th meeting, p 55, para. 50; see also Waldock, Fourth Report of the Law of Treaties, YILC, 1965, vol. II, p 11, para. 3; Report of the ILC to the General Assembly, supra n 7. 9 ‘The phrase “governed by international law” serves to distinguish between international agreements regulated by public international law and those which, although concluded between two States, are regulated by the national law of one of the Parties (or by some other national law system chosen by the Parties)’ (YILC, 1962, vol. II, p 163, para. 9, Commentary of the Commission on the expression ‘treaty’ in Art. 1(a) in its report to the General Assembly). 10 See the intervention of Ago, YILC, 1962, vol. I, 638th meeting, p 52, para. 19, who distinguishes between an international agreement and an agreement to purchase premises for a diplomatic mission. 11 See the comments by Gros, YILC, 1962, vol. I, 661st meeting, p 215, para. 42: The use of the expression ‘international agreement’ was correct in a definition which was to appear in a convention embodying rules of international law; it served to indicate that the term ‘treaty’ did not include, for example, agreements between a private individual or company and a state (see the Commentary of the Commission, supra n 9, p 162). See also on this topic the intervention of Bartoš, YILC, 1962, vol. I, 655th meeting, p 172, para.

63. 12 The essential difference between a unilateral declaration and an agreement not in a written form is that the former lacks the consensual element. Special Rapporteur Fitzmaurice had considered the inclusion of a paragraph stating that, like non-written agreements, the exclusion of these declarations from the scope of the Convention did not prejudice their validity. See YILC, 1959, vol. I, 480th meeting, p 6, para. 42. In the end, it was decided not to mention them in the text. References to them can be found in the commentary on Art. 3. See the commentary of Special Rapporteur Waldock, YILC, 1962, vol. I, 638th meeting, pp 55–6, paras 58–9. 13 See Reuter, Third Report, YILC, 1974, vol. II, p 138, para. 8. 14 See Reuter, First Report, YILC, 1972, vol. II, p 190, para. 61; the revised text of Art. 3 was presented by the Chairman of the Drafting Committee, Yasseen, to the Commission which approved it at its 28th meeting. Official Records of the UN Conference on the Law of Treaties, Report of the Committee of the Whole, 1st session, 28th meeting, p 146, para. 4, p 147, para. 13 in fine. 15 Ibid, p 147, para. 10. 16 Ibid. 17 Ibid, p 147, para. 7. 18 See Reuter, First Report, YILC 1972, vol. II, p 191, para. 62. 19 Ibid, p 190, para. 61. 20 Ibid, p 191, para. 62. 21 These agreements have also been called ‘oral treaties’, ‘verbal treaties’, or ‘tacit agreements’. The expression ‘international agreements not in written form’ was chosen in order not to have to use the word ‘treaty’ which, in Art. 2, para. (a) of the Convention, ‘means an international agreement…in written form’. 22 K. Widdows, ‘On the Form and Distinctive Nature of International Agreements’, BYBIL, 1981, p 114. Having reviewed the views of experts on the recognizance of tacit agreements, this author concludes as follows at p 119: most of the books would consider as binding tacit agreements or agreements by implication. They would, however, stress that there must be no doubt about the consent of each Party: there will need to be some positive indication of consent. The example most often given is that of a truce agreement through the use of white flags. Similarly, he notes at p 117 that the vast majority of experts accept the validity of oral agreements: writers, on the whole, favour the possibility of purely oral agreements in law while not necessarily approving of them nor denying that their existence would be difficult to prove nor that current usage favours written instruments. See also Bartoš, YILC, 1959, vol. I, 480th meeting, p 4, para. 13; Ago, YILC, 1962, vol. I, 668th meeting, p 265, para. 136; and Tunkin, ibid, p 266, para. 155, who is of the view that ‘there is no doubt that oral international agreements had legal force’. See the comment of the ILC on what was then Art. 2 in the Report of the ILC to the General Assembly, YILC, 1962, vol. II, p 35: ‘in short, without going any further into the matter, paragraph 2 acknowledges the existence of oral agreements…it puts on record that their omission from the draft articles is not to be understood as in any way altering the legal position in regard to them’. 23 I. Brownlie, Principles of Public International Law (6th edn, Oxford: Oxford University Press, 2003), p 582: ‘Obviously substantial parts of the Convention are not relevant to oral agreements: the fact remains that important parts of the law, for example, relating to invalidity and termination, will apply to oral agreements.’ See however Quoc Dinh Nguyen, A. Pellet, and P. Dallier, Droit international public (7th edn, Paris: LGDJ, 2002), p 120, no 63, who are of the view that ‘refusant d'examiner des accords verbaux entre États, alors que ceux-ci existent, la Conférence de Vienne confirme implicitement que les règles concernant lesdits accords ne sont probablement pas suffisamment sûres pour lui permettre de les codifier’. 24 See however P. Reuter, Introduction au droit des traités (Paris: PUF, 1985), p 34, paras 65–6 on the difficulties of concluding that an agreement not in a written form exists on the basis of the passive conduct by one of the alleged parties. 25 PCIJ, 1933, Series A/B, no 53. See a reference to this case by Fitzmaurice, YILC, 1959, vol. I, 480th meeting, p 3, para. 10; by Waldock in his First Report, YILC, 1962, vol. II, p 35. Waldock noted, however, during the meetings of the Commission that ‘[t]here was some controversy concerning the Ihlen Declaration in the Eastern Greenland case, which was regarded by some as being more in the nature of an undertaking’, YILC, 1962, vol. I, 668th meeting, p 266, para. 156. Similarly, see K. Widdows, supra n 22, who notes however at p 119: ‘While inherent ambiguities render the Eastern Greenland case of uncertain value, there is certainly no open denial by the Court of the proposition that an oral agreement may be fully operative in law’. See also Tunkin, YILC, 1959, vol. I, 480th meeting, p 4, para. 22, on the rarity of these agreements; see the discussion of Alfaro, ibid, p 6, para. 50 and Yakota, ibid, 481st meeting, p 8, para. 10, on the status of an agreement not in written form in 1904 between the United States and Panama following a dispute on the interpretation of the Convention for the Construction of a Ship Canal. 26 F. Capotorti, ‘Cours général de droit international public’, RCADI, 1994-IV, vol. 248, notes at p 153 that ‘l'importance de cette catégorie est notoirement très modeste’.

27 A. Aust, Modern Treaty Law and Practice (2nd edn, Cambridge: Cambridge University Press, 2007), p 9. In its electronic version of 23 October 2001, an article in Pradva mentions a phone conversation between the Russian president, Vladimir Putin, and the American President, George W. Bush, during which ‘a kind of oral treaty’ would have been concluded between the two States: ‘According to this treaty, Washington confirms that Moscow can participate in forming the Afghan post-war government. At the same time, according to this treaty, Russian troops should not enter Kabul’. See http://english.pravda.ru/main/2001/10/23/18842.html (last accessed 10 May 2010). 28 On the registration of treaties see the commentary on Art. 80 in this work. 29 See on this point the statement of the representative from Iran at the Diplomatic Conference, Official Records of the UN Conference on the Law of Treaties, Report of the Committee of the Whole, 1st session, 7th meeting, p 38, para. 27: That form of agreement seemed to have belonged mainly to the era of secret diplomacy and colonialism, and was totally at variance with the principles of open diplomacy proclaimed in the Covenant of the League of Nations and the United Nations Charter, notably in Article 102. 30 Report of the ILC to the General Assembly, YILC, 1959, vol. II, p 94. For instance, the Commission mentioned, at fn 27 of p 94, that ‘there cannot be any signature of an oral agreement—or else ipso facto, it becomes a written one’. See also Fitzmaurice, ibid, vol. I, 480th meeting, p 3, para. 10. 31 Tunkin, YILC, 1959, vol. I, 480th meeting, p 4, para. 22. 32 Report of the ILC to the General Assembly, YILC, 1962, vol. II, p 163. 33 Advisory Opinion on Reparation for Injuries Suffered in the Service of the United Nations, ICJ Reports 1949, p 174 at p 178. 34 Report of the ILC to the General Assembly, YILC, 1962, vol. II, p 162. 35 See Bartoš, YILC, 1962, vol. I, 640th meeting, p 70, para. 74 who mentions that the capacity of others subjects is normally limited; de Luna, ibid, p 70, para. 89, who is of the view that other subjects possess this capacity by way of exception. 36 See in this work the commentary on Art. 6 of the 1986 Convention on the Law of  Treaties. 37 eg the Holy See is party to the Convention on the Rights of the Child, the Convention on Torture, the Convention on Racial Discrimination, the 1958 Convention on the Law of the Sea, the 1949 Geneva Conventions and their two Additional Protocols. The agreements between the Holy See and a State where the Catholic Church is active are known as concordats (on the definition of concordat see J. Salmon (ed.), Dictionnaire de Droit international public (Brussels: Bruylant/AUF, 2001), p 226). The Fundamental Law of Vatican City State provides in Art. 2 that: The representation of the State in relations with foreign states and with other subjects of international law, for the purpose of diplomatic relations and the conclusion of treaties, is reserved to the Supreme Pontiff, who exercises it by means of the Secretariat of State. See, among others, L. Le Fur, Le Saint-Siège et le droit des gens (Paris: 1930); Y. de la Briere, ‘La condition juridique de la Cité du Vatican’, RCADI, 1930-III, vol. 33, pp 115–65; R.-P. J. Lucien-Brun, ‘Le Saint-Siège et les institutions internationales’, AFDI, 1964, pp 536–42. 38 Report of the ILC to the General Assembly, YILC, 1959, vol. II, p 96, para. 7; Waldock, YILC, 1962, vol. I, 639th meeting, p 58, para. 6 and 655th meeting, p 170, para. 31; Ago, ibid, 655th meeting, p 172, para. 65. See also I. Brownlie, supra n 23, p 64: ‘it is widely recognized as a legal person with treaty-making power’. 39 See F. Capotorti, supra n 26, p 58 who mentions this view without however citing authorities for it. See also I. Brownlie, supra n 23, p 64, who rejects this analysis: ‘Some jurists regard the Vatican City as a state, although its special functions make this doubtful’. 40 See F. Capotorti, supra n 26, p 58. See also the Report of the ILC to the General Assembly, YILC, 1959, vol. II, p 96, para. 7, where it is observed that even when the Holy See did not exercise territorial sovereignty after 1870 it was nevertheless recognized that it had treatymaking capacity. 41 See Bartoš, YILC, 1962, vol. I, 669th meeting, pp 267–8, para. 4. He also queries whether the Order of Malta has the capacity to conclude treaties, YILC, 1962, vol. I, 639th meeting, p 61, para. 46. Concerning this entity which he qualifies, like the Holy See, as a subject sui generis of international law, Capotorti (supra n 26, p 59) observes that even if it is a dependency of the Holy See, it nevertheless conducts its own external relations with States as manifested by the numerous treaties it has concluded with Italy. See however I. Brownlie, supra n 23, p 64: ‘the legal capacities of institutions like the Sovereign Order of Jerusalem and Malta must be limited simply because they lack the territorial and demographic characteristics of State’. See also H. Beat de Fischer, ‘L'Ordre souverain de Malte’, RCADI, 1979-II, vol. 163, pp 1–48; F. Macchia, La personnalité juridique internationale de l'Ordre de Malte, Mémoire Sc. Pol. ULB (Brussels: 1990–1), pp 92–5. 42 See Fitzmaurice, Third Report, YILC, 1958, vol. II, p 32; Waldock, YILC, 1962, vol. I, 639th meeting, p 58, para. 6; see also de Luna, ibid, 640th meeting, p 66, para. 22 who recognizes that rebels have a capacity, although limited, to conclude treaties. See also I. Brownlie, supra n 23, p 63. 43 A. Cassese, International Law (Oxford: Oxford University Press, 2001), p 67.

44 Ibid. 45 Ibid, p 77: The existence of the power is evidenced by the numerous agreements various liberation movements have entered into on such matters as: the stationing of armed forces belonging to the movements on the territory of States, cessation of hostilities. However, Quoc Dinh Nguyen, A. Pellet, and P. Dallier, supra n 23, p 190, fn 116, remind us that: ‘cette capacité est étroitement fonctionnelle: la participation de ces entités est limitée aux traités qui répondent à leur vocation, l'acheminement du peuple qu'ils représentent à la pleine souveraineté’. On the nature of the agreements signed by Israel and the PLO see, among others, P. Malanczuk, ‘Some Basic Aspects of the Agreements between Israel and the PLO from the Perspective of International Law’, EJIL, 1996, p 485, where he writes at p 489 that the PLO has become recognized as a national liberation movement with the right to selfdetermination, which, although it does not exercise effective territorial jurisdiction, is a partial subject of international law with the legal capacity to maintain diplomatic relations with states and international organisations recognizing it and to conclude treaties. As a partial subject of international law, the PLO is not equal to a state, but that does not affect the validity of a treaty it concludes with a state. See also S. Rosenne, ‘General Course on Public International Law’, RCADI, 2001-III, vol. 291, p 366, who notes that Israel has included in its treaty series a number of agreements concluded with the PLO. 46 Ibid, p 288: ‘National liberation movements have not been accepted as Parties to multilateral treaties, even when they have been invited to participate in the conference at which the treaty was concluded.’ 47 F. Capotorti, supra n 26, p 56. 48 Ibid. 49 J.-M. Arbour, Droit international public (4th edn, Cowansville: Éditions Yvon Blais, 2002), p 79. 50 Quoc Dinh Nguyen, A. Pellet, and P. Dallier, supra n 23, p 118, fn 62. I. Brownlie (supra n 23, pp 58–9) notes however, that: in the normal case, such capacities are probably exercised as agents of the union, even if the acts concerned are done in the name of the component state. However, where the union originated as a union of independent states, the internal relations retain an international element, and the union may act as a free agent. In his view, Switzerland is an example of this kind of situation. 51 See I. Brownlie, supra n 23, p 59 who mentions Canada as an example. See however J.-Y. Morin, La personnalité internationale du Québec (1984), vol. I, p 163, who argues that the Province of Quebec also has this capacity. On this question, Capotorti writes: la compétence que les provinces canadiennes exercent en matière de relations avec l'étranger est plus douteuse: il semble que la thèse de la personnalité internationale du Québec puisse être soutenue par des arguments qui sont invoqués comme capable de fournir la preuve d'une large autonomie du Québec (supra n 26, p 54). 52 See eg Arts 8 and 9 of the Swiss Constitution of 29 May 1874 on the capacity of Swiss cantons. 53 See eg Arts 127, 128, and 130 of the Belgian Constitution on the capacities of the Communities. Likewise, see Art. 32(2) of the Fundamental Law of Germany allowing Lander to conclude treaties in their field of competences, subject to the consent of the federal State. 54 I. Brownlie, supra n 23, p 60. 55 Ibid. 56 Ibid, p 65: ‘In principle, corporations of municipal law do not have international legal personality. Thus a concession or contract between a state and a foreign corporation is not governed by the law of treaties’; and at p 67: ‘the individual is in certain contexts regarded as a legal person, and yet it is obvious that he cannot make treaties’. See also the decision in the case of Texaco-Casialistic, reported in J.-Y. Morin, F. Rigaldies, and D. Turp, Droit international public: notes et documents (3rd edn, Montreal: Thémis, 1997), p 973, where the arbitrator notes at para. 32 that contracts between private persons and States ‘ne se confondent pas’. 57 C. Dominice, ‘La personnalité juridique internationale du CICR’ in Études et essais sur le droit international humanitaire et les principes de la Croix-Rouge (The Hague: Martinus Nijhoff, 1984), p 663 notes for instance, at p 668, that the content of the ‘headquarters agreements’ of the ICRC with States ‘ressemble de manière frappante aux accords de siège entre États et organisations interétatiques’ and concludes, on the next page, ‘qu’à tous égards, ils doivent être considérés comme des traités internationaux, et que telle est sans aucun doute la manière de voir des États qui les concluent'. See for a similar conclusion, P. Reuter, ‘La personnalité juridique internationale du Comité international de la Croix-Rouge’ in Mélanges Pictet (Geneva: ICRC), pp 783–90. 58 E. David, Principes de droit des conflits armés (3rd edn, Brussels: Bruylant, 2002), p 579. 59 See in the summary of activity of the Commission from 1950 to 1958 in the Report of the

ILC to the General Assembly, 1959, YILC, vol. II, p 89, para. 10. 60 Ibid, p 96, para. 6. 61 Ibid. 62 Ibid. 63 Ibid. 64 Waldock, First Report, YILC, 1962, vol. II, p 37. 65 Waldock, Fourth Report, YILC, 1965, vol. II, p 10, para. 4 and his comment, ibid, vol. I, 776th meeting, p 7, para. 51. Note however that other Commissioners, eg Ago, ibid, pp 7–8, para. 58, would have liked the Convention to apply to other subjects of international law, including the Holy See and insurgents. 66 The insertion in the Convention of other subjects of international law, such as international organizations, would have required, in Waldock's view, modifications to it. See Waldock, YILC, 1965, vol. I, 777th meeting, p 15, para. 68. 67 See Reuter, YILC, 1965, vol. I, 777th meeting, p 12, para. 23; see also Waldock, ibid, p 15, para. 68, who is of the view that: ‘The Commission might be considered somewhat irresponsible if it suggested that the articles applied to treaties concluded by international organisations, without having studied that question at all as a Commission’. 68 See the interventions of various States on this issue in ‘Analytical compilation of comments and observations presented in 1966 and 1967 on the final text of proposed articles on the law of treaties’, A/CONF.39/5 (vol. I), in particular Ceylon, Cyprus, Kuwait, Liberia, United Kingdom, Sierra Leone, and Sweden. 69 See eg the intervention by the representative of the UK, Official Records of the UN Conference on the Law of Treaties, Report of the Committee of the Whole, 2nd session, 7th meeting, p 3, para. 14. 70 For J. M. Arbour, supra n 49, p 79, the decision not to include a provision in the Convention on the capacity of federal entities is due to des raisons politiques liées principalement aux prétentions du Québec sur ce chapitre, les représentants du Canada—et, pour d'autres raisons, la majorité des représentants des États fédéraux, faut-il le dire—se sont opposés à ce que cette règle soit officiellement incorporée dans le texte final. For more on these questions, see the commentary on Art. 6 of the 1969 Convention, infra. * Professor, Faculty of Law, University of Ottawa, Canada. ** Jurist, Canadian Department of Justice.

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Volume I, Part I Introduction, Art.3 1986 Vienna Convention Yves le Bouthillier, Jean-François Bonin From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — State succession, international agreements

(p. 77) 1986 Vienna Convention Article 3 International agreements not within the scope of the present Convention The fact that the present Convention does not apply: (i) to international agreements to which one or more States, one or more international organizations and one or more subjects of international law other than States or organizations are parties; (ii) to international agreements to which one or more international organizations and one or more subjects of international law other than States or organizations are parties; (iii) to international agreements not in written form between one or more States and one or more international organizations, or between international organizations; or (iv) to international agreements between subjects of international law other than States or international organizations; shall not affect: (a) the legal force of such agreements; (b) the application to them of any of the rules set forth in the present Convention to which they would be subject under international law independently of the Convention; (c) the application of the Convention to the relations between States and international organizations or to the relations of organizations as between themselves, when those relations are governed by international agreements to which other subjects of international law are also parties. 1. Article 3 of the 1986 Convention is similar to Article 3 of the 1969 Convention. It preserves the status quo under international law for agreements not covered by the 1986 Convention, which are essentially agreements that international organizations conclude with entities other than States or international organizations as well as non-written agreements between an international organization and one or several States or international organizations.1 Paragraphs (a) and (b) ensure that the adoption of the Convention does not prejudice the validity of excluded agreements in the larger international legal order. Already covered by Article 3 of the 1969 Convention, the agreements between States and subjects of international law other than international organizations and non-written agreements between States are the only agreements outside the reach of Article 3 of the 1986 Convention. 2. The purpose of paragraph (iv)(c) of Article 3 of the 1986 Convention is identical to its counterpart in the 1969 Convention. It prevents the rules set out in the 1986 Convention from being rendered inapplicable to the relations between States and international organizations or between international organizations by the mere fact that other types of subjects of international law participate in the agreement that (p. 78) governs those relations.2 As seen earlier, those agreements are referred to as ‘trilateral’ agreements. 3. While the purpose of this paragraph in both Conventions is the same, paragraph (iv)(c) of Article 3 of the 1986 Convention does not replace paragraph 3(c) of the 1969 Convention where the parties to a trilateral agreement are two or more States, two or more international organizations and another subject of international law, even if all the States involved adhere to the 1986 Convention. The relations between these States will remain governed by the 1969 Convention, provided they are parties to it, as specified in paragraph 3(c) of the 1969 Convention as well as in Article 73 of the 1986 Convention.3 4. At the time of drafting Article 3, the most debated question was whether it would be preferable to substitute the term ‘entities (other than States or international organizations)’ with the expression ‘other subjects of international law’.4 At first, the Commission was of the view that inserting ‘entity’, an ‘entirely neutral term’,5 would enable it to avoid discussion on whether there are subjects of international law other than States and international organizations,6 and whether all international organizations are subjects of international law.7 However, the word ‘entity’ was eventually abandoned and the expression ‘subject of international law’ reinserted,8 as the Commission felt that the former was ‘too vague and could cover any subject of private law, including associations and societies’.9 The Commission was concerned that ‘such an extension of the scope of the article could give rise to all kinds of problems’.10 * JEAN-FRANÇOIS BONIN **

YVES LE BOUTHILLIER

Footnotes: 1 The ILC proposed as examples of those, agreements that are concluded between the Holy See or the International Committee of the Red Cross and international organizations such as the European Economic Community. Commission Report to the Assembly, YILC, 1974, vol. II, Part One, Commentary of Article 3, p 297, para. 1. 2 See Reuter, First Report, YILC, 1972, vol. II, p 190, para. 61.

3 In its initial draft of the 1986 Convention, Special Rapporteur Reuter had proposed to end Art. 1 with the following sentence: ‘Article 3 (c) of the Vienna Convention…does not apply to such treaties’, a reference to treaties concluded between States and international organizations or between two or more international organizations. See Reuter, Third Report, YILC, 1974, vol. II, p 137. Motivated by the principle of unity of treaty regimes for both States and international organizations, such wording would have placed, in Reuter's view, a trilateral treaty to which States and international organizations are parties, entirely under the rule of the 1986 Convention, even the relations between States. See the intervention of Reuter, YILC, 1974, vol. I, 1274th meeting, p 125, para. 12. Several Commission members expressed concerns with this proposal. See in particular the interventions of Ushakov, Yasseen, and Ago, YILC, 1974, vol. I, 1274th meeting, respectively at p 127, para. 31, p 128, para. 34, and p 129, para. 50. The sentence was later removed by Reuter. See his intervention, YILC, 1974, vol. I, 1275th meeting, p 132, para. 15. 4 ‘Other entities’ had been utilized the first time by the Commission in 1974. See YILC, 1974, vol. I, 1291st meeting, p 233, para. 31. 5 See supra n 1, p 298, para. 6. 6 Commission Report to the Assembly, YILC, 1981, vol. II, Part Two, Commentary on Art. 3, p 126, para. 6. 7 Supra n 4. 8 YILC, 1981, vol. I, 1646th meeting, p 16, paras 34–5. 9 Supra n 5. 10 Id. * Professor, Faculty of Law, University of Ottawa, Canada. ** Jurist, Canadian Department of Justice.

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Volume I, Part I Introduction, Art.4 1969 Vienna Convention Frédéric Dopagne From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — State succession, international agreements — Subjects of international law — Territory, dependent — National liberation movements — Belligerents — Insurgents and insurrection — Treaties, entry into force — Treaties, conclusion — Treaties, application — Customary international law — General principles of international law

(p. 79) 1969 Vienna Convention Article 4 Non-retroactivity of the present Convention Without prejudice to the application of any rules set forth in the present Convention to which treaties would be subject under international law independently of the Convention, the Convention applies only to treaties which are concluded by States after the entry into force of the present Convention with regard to such States. A. General characteristics 79 Subject matter and rationale 79 Status 80 B. The scope of Article 4 80 The date of the entry into force of the Vienna Convention with regard to a State 81 A treaty ‘concluded’ by States after the entry into force of the Convention with regard to these States 81 The application of the Convention to the treaties concluded by States after its entry into force with regard to these States 82 Article 4 is not a ‘si omnes clause’ 82 Article 4 is not merely an application of the principle of non-retroactivity of treaties 83 C. The limit to Article 4 84

Bibliography McDade, P. V., ‘The Effect of Article 4 of the Vienna Convention on the Law of Treaties 1969’, ICLQ, 1986, pp 499–511 Orihuela Calatayud, E., Los tratados internacionales y su aplicación en el tiempo. Consideraciones sobre el efecto inicial de las disposiciones convencionales (Madrid: Dykinson, 2004) Rosenne, S., ‘The Temporal Application of the Vienna Convention on the Law of Treaties’, Cornell Int'l LJ, 1970, pp 1–24

A. General characteristics Subject matter and rationale 1. The draft Articles which the ILC adopted in 1966 did not contain any provision similar to Article 4 of the later Vienna Convention of 1969. The issue of the temporal application of the forthcoming Convention had been raised by the Commission in relation to some specific provisions, in particular draft Article 49 pertaining to the invalidity of treaties the conclusion of which had been procured by the threat or use of force.1 Nevertheless, no general provision was devoted to this issue: it seems that, in the opinion of the members (p. 80) of the Commission, the principle of non-retroactivity of treaties embodied in draft Article 24 provided a sufficient solution in that respect.2 Likewise, the first session of the Vienna Conference did not address the question. It was not until the second session of the Conference that certain delegations proposed a new Article 77 which ultimately became Article 4 of the Convention.3 2. The sudden attention to the issue of the temporal application of the Convention probably rested on political considerations.4 Realizing that the Vienna Convention was going far beyond a mere codification of the existing rules of customary international law in several respects,5 some States wanted the Convention to clarify that it would apply only to treaties concluded after its entry into force. Obviously, the intention was to avoid States being bound by the innovative provisions of the Convention with regard to treaties concluded at a time when the Convention itself was perhaps not yet contemplated.6 There is no doubt that the existence of binding dispute settlement mechanisms relating to Part V of the Convention (Art. 66) was particularly decisive in that respect.7 3. Article 4 does not explicitly allow exceptions to the principle of non-retroactivity of the Convention. However, as this provision does not belong to the jus cogens norms, parties to a treaty concluded before the entry into force of the Convention could derogate from the nonretroactivity principle and agree to apply the Convention to that particular treaty.8 This hypothesis nonetheless seems quite theoretical, for in practice the contracting parties will rather rely on the corresponding rule of customary law.

Status 4. There is little point in examining whether Article 4 reflects a customary rule of international law. Indeed, logically, the question of the temporal application of the Vienna Convention does not even arise for States which are not party to the Convention.

B. The scope of Article 4

5. The Convention applies only to treaties which are concluded by States after its entry into force with regard to such States. For that principle to apply, the date of the entry into force of the Convention with regard to a particular State must first be determined. It is then necessary to assess whether the treaty has been ‘concluded’ by this State after that date of entry into force.

(p. 81) The date of the entry into force of the Vienna Convention with regard to a State 6. The rules governing the entry into force of the Vienna Convention with regard to a State are laid down in Article 84 of the Convention. The Convention entered into force on 27 January 1980 with regard to the first 35 States which had deposited an instrument of ratification or accession: for these States, the Convention applies only to treaties which they concluded after that date. Afterwards, the Convention entered into force with regard to a State on the thirtieth day following the date of deposit of the instrument of ratification or accession of that State: for each of these States, the Convention applies only to treaties which they concluded after this time limit expired.

A treaty ‘concluded’ by States after the entry into force of the Convention with regard to these States 7. Determining the date of ‘conclusion’ of a treaty proves to be a difficult task. The term ‘conclusion’ is in itself pluri-interpretable and no definition can be found in Article 2 of the Convention. The problem is parenthetically not confined to Article 4: it also concerns other provisions of the Convention, notably Article 30. Is a treaty ‘concluded’ as soon as it is adopted,9 or when it is signed,10 or when the State has expressed its consent to be bound,11 or once the treaty has entered into force?12 It seems that in any event the first answer cannot be accepted. Indeed, in Article 7, paragraph 2, the Convention itself distinguishes (a) ‘all acts relating to the conclusion of a treaty’ and the fact of (b and c) ‘adopting the text of a treaty’: ‘to conclude’ is hence broader than ‘to adopt’. This being said, no clear solution appears from the travaux préparatoires or from contemporary practice.13 In the case relating to the Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v Rwanda), the International Court of Justice did not have to decide on the issue as both the date of adoption of the treaties at stake (the Genocide Convention and the Convention on racial discrimination) and the date of accession of the litigating States to these treaties was prior to the entry into force of the Vienna Convention with regard to these States: this enabled the Court confidently to rule that the foresaid Conventions ‘were concluded before’ the latter date.14

References (p. 82) 8. Notwithstanding these uncertainties, it is hereby submitted that, at least for the purposes of Article 4, a treaty cannot be deemed to have been ‘concluded’ as long as the last act of the process designed to make it binding for a State has not yet been performed. Arguably, a treaty is thus ‘concluded’ when the State has expressed its consent to be bound. This view is supported by Article 48, paragraph 1 of the Convention in which ‘conclusion’ and ‘expression of the consent to be bound’ are placed on an equal footing. Against such a backdrop, the Vienna Convention applies in respect of States which have expressed their consent to be bound by certain treaties after the Convention has entered into force for these States, even if those treaties were adopted and signed before that time. Since as a rule, neither the adoption nor the signature of a treaty have the effect of binding the State, the latter remains free to refrain from expressing its consent to be bound by the treaty, if it does not wish to be subject to the innovative provisions of the Vienna Convention with respect to that treaty: the rationale of Article 4 seems to be observed.15

The application of the Convention to the treaties concluded by States after its entry into force with regard to these States 9. Whatever the difficulties mentioned supra may be, it clearly follows from Article 4 that the Vienna Convention applies only to treaties concluded by States after its entry into force with regard to these States. This principle does not mean that for the Convention to apply to a multilateral treaty, it must first have entered into force with regard to every State party to that treaty. Moreover, the operation of Article 4 does not amount to a mere application of the principle of non-retroactivity of treaties.

Article 4 is not a ‘si omnes clause’ 10. Undisputedly, the Vienna Convention applies to a bilateral treaty between States A and B only if that treaty is concluded after the entry into force of the Convention with regard to A and B. The situation of multilateral treaties is more controversial. Literally, the last words of Article 4 (‘such States’) might be construed as referring to every State party to the multilateral treaty. Under this interpretation, the Convention would apply to a multilateral treaty only if that treaty is concluded after the entry into force of the Convention with regard to every State party to it (A, B, and C): if one of these States (C) concludes the treaty before the entry into force of the Convention with regard to it, the Convention would not apply, even between the States with regard to which it entered into force before the conclusion of the treaty (A and B). Furthermore, the Convention would cease to apply between the States (X, Y, and Z) that concluded the treaty after the entry into force of the Convention with regard to them in the event that another State (W) with regard to which the Convention is not in force subsequently

accedes to the treaty. In sum, Article 4 would be tantamount to a ‘si omnes clause’, namely a clause limiting the application of an instrument to the cases in which every State involved is a party to that instrument. 11. The foregoing is not, however, buttressed by the travaux préparatoires. Quite to the contrary, during the Vienna Conference the delegate of Sweden (a State which played (p. 83) a key role in the elaboration of the provision that eventually turned into Article 4) made it clear that, to the understanding of his delegation, the Convention shall apply between the States which have concluded a multilateral treaty after the entry into force of the Convention with regard to them, irrespective of the fact that the Convention is not in force with regard to other parties to the multilateral treaty.16 This interpretation did not spark any opposition; hence, accordingly, Article 4 can hardly be considered a ‘si omnes clause’. The Convention applies between the States (A and B) with regard to which it has entered into force before the conclusion of the multilateral treaty, even if at that moment it is not (yet) in force with regard to other contracting parties (C).17 Such a ‘bilateralization’ of the relationships within the multilateral treaty is rather mundane. Besides, it must be stressed that the effet utile of the Vienna Convention would have been considerably hampered if, for the Convention to apply to a multilateral treaty, it had been required that the Convention had first entered into force with regard to every State party to that treaty.18

Article 4 is not merely an application of the principle of non-retroactivity of treaties 12. It seems that during the Vienna Conference, the proposed Article 77 was unanimously regarded as a mere application of the principle of non-retroactivity of treaties as enshrined in the future Article 28;19 the very title of Article 4 tends to bear out this conclusion. Nevertheless, Article 4 is not limited to providing for the non-retroactivity of the Vienna Convention: it also purports to deny the Convention any immediate effect but to give it a postponed effect.20 13. If the intention was merely to rule out the retroactive application of the Convention, it would have been sufficient to stipulate that the Convention shall not apply to the questions pertaining to the law of treaties which have arisen before its entry into force with regard to a particular State.21 Per se, the principle of non-retroactivity by no means prevents the Convention from applying to the questions pertaining to the law of treaties which arise after its entry into force with regard to a particular State, on the ground that the treaty at stake was concluded by that State before such a date. For instance, the non-retroactivity of the Vienna Convention impedes the Convention from governing the effect of an objection to a reservation if the objection was formulated before the entry into force of the Convention with regard to the objecting State. However, Article 4 goes further resulting in impeding the Convention from governing the effect of an objection that is formulated after the entry into force of the Convention with regard to the objecting State, as soon as the treaty is concluded by that State before such (p. 84) a date (exclusion of immediate effect). According to Article 4, the Convention shall govern the effect of the objection only if the latter relates to a treaty that was concluded by the objecting State after the entry into force of the Convention with regard to that State (postponed effect).22 14. It follows from the foregoing that the title of Article 4 does not accurately reflect the scope of the provision. True, the Vienna Convention has no retroactive effect. However, Article 4 also entails that, more radically, the Convention has no immediate effect.

C. The limit to Article 4 15. The principle laid down in Article 4 is ‘without prejudice to the application of any rules set forth in the [Vienna] Convention to which treaties would be subject under international law independently of the Convention’.23 Relying on that limit in the case relating to the GabčíkovoNagymaros Project, the International Court of Justice applied the rules set forth in Articles 60 to 62 of the Vienna Convention to a treaty which was concluded by two States before the entry into force of the Convention with regard to these States, as in the Court's opinion those rules existed under customary international law independently of the Convention.24

References 16. Article 4 refers to the rules of ‘international law’. The source of these rules does not really matter provided that they exist independently of the Vienna Convention.25 These can be customary rules but also general principles of international law:26 if only rules of customary international law were envisaged, the Convention would have made this clear along the lines of what it does in other provisions.27

References (p. 85) 17. Whatever their source may be, these ‘independent’ rules can also have emerged before or after the conclusion of the Vienna Convention.28 It is well known that the latter has in some respects codified pre-existing customary international law while in some other respects contributing to the (subsequent) moulding of customary rules.29 What is important here is that the rules of international law ‘independent’ of the Vienna Convention be in force at the time when the question pertaining to the law of treaties arises or at the time of the conclusion of the treaty at stake. Let us take the example of a bilateral treaty concluded in 1900 which was before the entry into force of the Vienna Convention with regard to the contracting parties. In the event that a question relating to the exception of non-performance

arises in 1980, the Convention as such does not apply but Article 60 reflects a rule of customary law.30 For this rule to govern the question mentioned supra, does it however suffice that it is ‘in force’ in 1980 (which is undeniably the case here) or is it required that it was already ‘in force’ in 1900 (which is in this case more questionable)? It is very likely that the practice will not trouble itself with these academic details. Nonetheless, it is posited here that, since the immediate effect seems to be the general principle for every norm of international law, regardless of its source,31 it is sufficient that the ‘independent’ rules emerged when the question pertaining to the law of treaties arose (in the aforementioned example, 1980), even if the treaty was concluded prior to this emergence.

References 18. Within the confines of the present commentary, it is neither possible nor necessary to single out the provisions of the Vienna Convention which set forth an ‘independent’ rule of international law.32 Such a task needs to be carried out for each specific dispute separately.33 Suffice it to point out here that to date (if not since their adoption), the bulk of the provisions of the Vienna Convention is generally considered as reflecting ‘independent’ rules of international law.34 As a result, the scope of the limit set by the first words of Article 4 seems to be (too?) far-reaching so it could even be contended that, paradoxically, this limit tends to overshadow the principle to which it relates. *

FRÉDÉRIC DOPAGNE

Footnotes: 1 See the commentary on Art. 52. 2 See the commentary on Art. 28; G. E. do Nascimento e Silva, ‘Le facteur temps et les traités’, RCADI, 1977-I, vol. 154, p 286. 3 See the propositions of Venezuela (A/CONF.39/C.1/L.399), Brazil, Chile, Kenya, Sweden, and Tunisia (A/CONF.39/C.1/L.400), the amendments of Spain (A/CONF.39/C.1/L.401) and Iran (A/CONF.39/C.1/L.402), as well as the proposition of Brazil, Chile, Iran, Kenya, Sweden, Tunisia, and Venezuela (A/CONF.39/C.1/L.403). 4 S. Rosenne, ‘The Temporal Application of the Vienna Convention on the Law of Treaties’, Cornell Int'l LJ, 1970, p 5. 5 See para. 7 of the preamble to the Convention. 6 See the interventions of the delegates of Venezuela, Official Records, CRA, 2nd session, 100th meeting, p 339, para. 65, and of Greece, ibid, 102nd meeting, p 351, para. 37, and the intervention of Sir H. Waldock, ibid, 103rd meeting, p 362, para. 81. 7 See eg the intervention of the delegate of Sweden, ibid, 101st meeting, p 344, para. 42; I. Sinclair, The Vienna Convention on the Law of Treaties (2nd edn, Manchester: Manchester University Press, 1984), p 230. 8 In this sense, see the intervention of the delegate of Ceylon, Official Records, CRA, 2nd session, 101st meeting, p 342, para. 26. 9 Ibid, 101st meeting, p 342, para. 26, and 104th meeting, p 363, para. 6; S. Rosenne, supra n 4, p 6. 10 In this sense, see the intervention of the delegate of Venezuela, Official Records, CRA, 2nd session, 100th meeting, p 339, para. 65; intervention of the delegate of Switzerland, who however mentions the date of ratification and (apparently) the date of the entry into force as well, ibid, 103rd meeting, p 354, para. 10; for another reference to the concept of the consent to be bound see M. Sørensen, ‘Le problème dit du droit intertemporel dans l'ordre international’, Ann IDI, 1973, p 31, para. 33. 11 In this sense, see E. W. Vierdag, ‘The Law Governing Treaty Relations Between Parties to the Vienna Convention on the Law of Treaties and States Not Party to the Convention’, AJIL, 1982, p 784. See however, by the same author, ‘The Time of the “Conclusion” of A Multilateral Treaty: Article 30 of the Vienna Convention on the Law of Treaties and Related Provisions’, BYBIL, 1988, p 85, referring to the date of adoption. See also the ambiguity in J. Salmon (ed.), Dictionnaire de droit international public (Brussels: Bruylant/AUF, 2001), p 225, where the conclusion of a treaty is first described as the ‘procédure suivie en vue de l'engagement des parties à une convention’ (emphasis added) but later defined in a more limited fashion (‘ensemble des opérations nécessaires pour que le contenu d'un traité soit définitivement arrêté’). 12 See the commentary on Art. 30. 13 See P. V. McDade, ‘The Effect of Article 4 of the Vienna Convention on the Law of  Treaties 1969’, ICLQ, 1986, pp 508–9. 14 Preliminary Objections, Judgment of 3 February 2006, ICJ Reports 2006, p 52, para. 125. On the doubtful necessity of resorting to Art. 4 in order to dismiss the argument of the applicant based upon Art. 66(a) of the Vienna Convention, see F. Dopagne, ‘Les exceptions préliminaires dans l'affaire des Activités armées sur le territoire du Congo (nouvelle requête: 2002) (République démocratique du Congo c. Rwanda)’, AFDI, 2007, pp 344–6. 15 See supra para. 1. 16 Official Records, CRA, 2nd session, 30th plenary session, p 177, para. 23. 17 See A. Aust, Modern Treaty Law and Practice (2nd edn, Cambridge: Cambridge University Press, 2007), pp 9–10; I. Sinclair, supra n 7, pp 8–9.

18 P. V. McDade, supra n 13, p 505; E. W. Vierdag, supra n 11, p 785. 19 Interventions of the delegates of Italy, Official Records, CRA, 2nd session, 101st meeting, p 344, para. 36, Sweden, ibid, 101st meeting, p 344, para. 42, Uruguay, ibid, 102nd meeting, p 346, para. 1, Iraq, ibid, 102nd meeting, p 348, paras 19 and 21, Greece, ibid, 102nd meeting, pp 350–1, para. 35, Tunisia, ibid, 103rd meeting, p 359, para. 52, Argentina, ibid, 103rd meeting, p 359, para. 54, Bolivia, ibid, 103rd meeting, p 359, para. 55, and Ceylon, ibid, 104th meeting, p 363, para. 6. 20 P. Reuter, foreword to the book by P. Tavernier, Recherches sur l'application dans le temps des actes et des règles en droit international public (Paris: LGDJ, 1970), p II. See also the developments by P. Tavernier, in the latter book, pp 14 ff, and the commentary on Art. 28 in the present volume. 21 See the intervention of the delegate of Switzerland, Official Records, CRA, 2nd session, 103rd meeting, p 354, para. 10. 22 See M. Sørensen: the effect of Art. 4 ‘dépasse la notion stricte de non-rétroactivité’, to the extent that ‘certains phénomènes juridiques qui se produisent après l'entrée en vigueur de la convention ne sont pas régis par celle-ci, pour la seule raison qu'ils s'attachent à un traité conclu avant cette entrée en vigueur’ (supra n 10, p 7, para. 9). 23 During the Vienna Conference, numerous delegations considered it necessary explicitly to provide such a limit: see the reactions to the proposition of Venezuela (A/CONF.39/C.1/L.399) which did not make any reference to the other relevant rules of international law (interventions of the delegates of Czechoslovakia, Official Records, CRA, 2nd session, 102nd meeting, p 348, paras 17–18, Iraq, ibid, 102nd meeting, p 348, paras 20–1, El Salvador, ibid, 102nd meeting, p 349, para. 24, Spain, ibid, 102nd meeting, p 351, para. 42, and of the delegate of Venezuela himself, ibid, 103rd meeting, p 357, paras 40–1). 24 25 September 1997, ICJ Reports 1997, pp 36–8, paras 42–6. 25 On the continuing separate existence of norms under treaty and customary law, see ICJ, Military and Paramilitary Activities in and against Nicaragua, Jurisdiction and Admissibility, Judgment of 26 November 1984, ICJ Reports 1984, p 424, para. 73, Merits, Judgment of 27 June 1986, ICJ Reports 1986, pp 93–4, para. 175, pp 94–6, paras 177–9. 26 Interventions of the delegates of Uruguay, Official Records, CRA, 2nd session, 102nd meeting, p 346, para. 3, Iraq, ibid, 102nd meeting, p 348, para. 22, Greece, ibid, 102nd meeting, p 351, para. 36, Switzerland, ibid, 103rd meeting, p 354, para. 10, Indonesia, ibid, 103rd meeting, pp 356–7, para. 32, and Sweden, ibid, 103rd meeting, p 359, para. 60. The initial proposition of Brazil, Chile, Kenya, Sweden, and Tunisia (A/CONF.39/C.1/L.400) referred only to the rules of customary international law codified in the Convention which sparked amendments by Spain (A/CONF.39/C.1/L.401) and Iran (A/CONF.39/C.1/L.402): see the interventions of the delegates of Spain, Official Records, CRA, 2nd session, 102nd meeting, p 351, paras 43–4, and Iran, ibid, 102nd meeting, p 352, para. 52. The final proposition of Brazil, Chile, Iran, Kenya, Sweden, Tunisia, and Venezuela (A/CONF.39/C.1/L.403) contained the text that was eventually adopted; the first words were drafted along the lines of Art. 3(b) (intervention of the delegate of Greece, Official Records, CRA, 2nd session, 102nd meeting, p 351, para. 36). 27 See eg para. 8 of the preamble and Art. 38 which specifically refer to customary international law while eg Arts 3, 31, para. 3(c), and 43 refer to international law in general. 28 Intervention of the delegate of Switzerland, Official Records, CRA, 2nd session, 103rd meeting, p 354, para. 10; intervention of Sir H. Waldock, ibid, 103rd meeting, pp 361–2, para. 80. The ICJ judgment in the Case relating to the Gabčíkovo-Nagymaros Project speaks only of the provisions of the Vienna Convention being ‘declaratory of customary law’ (25 September 1997, ICJ Reports 1997, p 62, para. 99) which seems quite restrictive. 29 See the distinction in the ICJ North Sea Continental Shelf, Judgment of 20 February 1969, ICJ Reports 1969, p 41, para. 70. 30 See ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971, ICJ Reports 1971, p 47, para. 96. 31 See generally the second part of the book by P. Tavernier, supra n 20, pp 179 ff. 32 This would amount to a ‘Sisyphean task’ (S. Rosenne, supra n 4, p 16). 33 A. Aust, supra n 17, pp 12–13. 34 See A. Aust, supra n 17, pp 10–11, and I. Sinclair, supra n 7, pp 10–24. * Lecturer, University of Louvain (UCL), Belgium.

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Volume I, Part I Introduction, Art.4 1986 Vienna Convention Frédéric Dopagne From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Treaties, entry into force — Treaties, conclusion — Treaties, application — Customary international law — General principles of international law

(p. 86) 1986 Vienna Convention Article 4 Non-retroactivity of the present Convention Without prejudice to the application of any rules set forth in the present Convention to which treaties between one or more States and one or more international organizations or between international organizations would be subject under international law independently of the Convention, the Convention applies only to such treaties concluded after the entry into force of the present Convention with regard to those States and those organizations.

Bibliography See the references cited in the bibliography pertaining to Article 4 of the 1969 Vienna Convention. 1. Article 4 of the Convention of 1986 is in substance identical to Article 4 of the 1969 Convention: only the necessary adaptations of the original text were made. As it called for ‘no comment’,1 this provision was adopted without a vote by the Vienna Conference.2 Needless to say, there is nonetheless a major difference between twin Articles 4: to date, the 1986 Convention has not entered into force which undeniably renders the problem of its nonretroactivity purely theoretical. 2. Since the rationale is similar to that underlying Article 4 of the 1969 Convention, the principle is basically unchanged. On the one hand, the Convention of 1986 applies to a treaty to which at least one international organization is a party only if that treaty was concluded after the entry into force of the Convention with regard to the State(s) or organization(s) concerned. On the other hand, the treaties concluded before the latter date are subject to the relevant rules of (customary) international law that exist independently of the Convention.3

References 3. Against such a backdrop, the issues raised by Article 4 are to a great extent comparable to those created by the corresponding provision in the 1969 Convention; hence it suffices to refer to the commentary on that provision. 4. One point is, however, worth stressing. While the draft Article 4 proposed by the Special Rapporteur contained the term ‘concluded’,4 this term no longer appears in the text adopted on first reading by the Drafting Committee,5 or in the ILC Reports to the General Assembly on the work of its 26th and 27th sessions.6 It nevertheless reappeared in the text (p. 87) adopted on second reading by the Drafting Committee (although it seems that this went unnoticed),7 and was eventually retained in the final version.8 Only the United Kingdom pinpointed these inconsistencies in its comments,9 even though the difference between the two wordings is considerable. Stipulating (as in 1969) that the Convention applies only to treaties concluded after its entry into force amounts to giving the Convention a postponed effect.10 On the contrary, providing that the Convention applies ‘to the treaties after its entry into force’ results in granting the Convention an immediate effect. Under the second hypothesis, the Convention would govern every question pertaining to the law of treaties which arises after its entry into force, even if the treaty at stake was concluded before that date. It is nevertheless doubtful that this was the intention of the ILC or that of States participating in the Vienna Conference of 1986. Actually, the intention to depart from the substance of Article 4 of the 1969 Convention was never expressed. This is adequately reflected in the final drafting of Article 4 of the 1986 Convention; therefore, like the 1969 Convention, the 1986 Convention undisputedly has a postponed effect. *

FRÉDÉRIC DOPAGNE

Footnotes: 1 Intervention of Mr Reuter, Special Rapporteur, ACDI, 1974, vol. I, 1275th session, p 134, para. 35. 2 Official Records, CRA, 5th plenary session, p 12. 3 See eg Italian Corte di cassazione, Food and Agriculture Organization v Colagrossi, 19 May 1992, ILR, vol. 101, p 385, where the court applied the rule set forth in Art. 31, para. 3 of the 1986 Vienna Convention to the Food and Agriculture Organization of the UN headquarters agreement (concluded in 1950): the court decided that Art. 31, para. 3 reflects a rule of customary law. 4 P. Reuter, ‘Third report on the question of treaties concluded between States and international organizations or between two or more international organizations’, ACDI, 1974, vol. II, Part One, p 145. 5 It seems that this was not noticed by the members of the Commission: ACDI, 1974, vol. I, 1291th session, p 234, paras 41–9. 6 Respectively, ACDI, 1974, vol. II, Part One, p 298 and ACDI, 1975, vol. II, p 172. 7 ACDI, 1981, vol. I, 1681st session, p 199, para. 18. 8 See notably the ILC Reports to the General Assembly on the work of its 33th and 34th

sessions, ACDI, 1981, vol. II, Part Two, p 126 and ACDI, 1982, vol. II, Part Two, pp 22–3, respectively. 9 Annex II to the ILC Report to the General Assembly on the work of its 33th session, ACDI, 1981, vol. II, Part Two, p 194, para. 20. 10 See the commentary on Art. 4 of the 1969 Convention, para. 12. * Lecturer, University of Louvain (UCL), Belgium.

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Volume I, Part I Introduction, Art.5 1969 Vienna Convention David Heywood Anderson From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Treaties, interpretation — Treaties, application — Treaties, invalidity, termination, suspension, withdrawal — Treaties, entry into force — UNCLOS (UN Convention on the Law of the Sea) — UN Charter — Treaties, conclusion — Lex specialis

(p. 88) 1969 Vienna Convention Article 5 Treaties constituting international organizations and treaties adopted within an international organization The present Convention applies to any treaty which is the constituent instrument of an international organization and to any treaty adopted within an international organization without prejudice to any relevant rules of the organization. A. General characteristics 88 Object and purpose 88 History of the provision 89 B. Questions of interpretation 92 C. The application of the rule in Article 5 95 D. Assessment 97

Bibliography Aust, A. I., Modern Treaty Law and Practice (2nd edn, Cambridge: Cambridge University Press, 2007) Jennings, R. Y and Watts, A. D, Oppenheim's International Law (9th edn, Harlow: Longman, 1992), pp 1219 ff Reuter, P., Introduction to the Law of Treaties (2nd edn, London: Kegan Paul International, 1995) Rosenne, S., The Law of Treaties: A Guide to the Legislative History of the Vienna Convention (Leiden: Sijthoff, 1970) —— Developments in the Law of Treaties 1945–1986 (Cambridge: Cambridge University Press, 1989)

A. General characteristics Object and purpose 1. Article 5 relates to two distinct classes of treaties: those which constitute an international organization and those which are adopted within such an organization. The two classes of treaties are very different in character. To take one example, the general law on international organizations plays a more prominent role in regard to interpretation and application of treaties which are the constituent instruments of international organizations than it does in the case of treaties adopted within such organizations. 2. Article 5 addresses whether, and if so to what extent, the general rules of the law of treaties apply to treaties of these two classes. In somewhat greater detail, the first issue is whether or not the rules contained in the other Articles of the Vienna Convention apply to those two types of treaties. If so, the second issue is whether the general rules apply in such a way as to override any inconsistent arrangements existing within a particular (p. 89) international organization, or whether instead the specific rules of an international organization displace to some extent those general rules. 3. Looking first at the context, Article 5 forms the final provision in the introductory Articles that make up Part I of the Convention. Article 5 is closely linked to two other Articles in this introductory part. First, Article 1 confines the scope of application of the Convention to ‘treaties between States’. The ILC decided to recommend this course (a recommendation accepted at an early stage in the Vienna Conference) largely in order to simplify the work.1 By confining the scope of the Convention to treaties between States, the drafting was made straightforward and many issues concerning treaties involving other subjects of international law could be left aside. At the same time, this rather narrow scope indicated in Article 1 was eased through the inclusion of Article 5. When the decision on the scope of the Vienna Convention was taken at the Vienna Conference in 1969, it was recommended that further work should be done on the topic of the treaties of international organizations but it was not known, of course, that the ultimate result would be the conclusion of the 1986 Vienna Convention.2 Secondly, Article 3 contains clarifying provisions relating to treaties between States and ‘other subjects of international law’ (a term that includes international organizations) or between other subjects of international law. In particular, paragraph (c) safeguards the application of the Convention to the relations of States as between themselves under international agreements to which other subjects of international law are also parties. 4. As an introductory Article, Article 5 has a general scope. It applies in principle to all other provisions contained in the Convention and thus averts the need to insert qualifications for treaties that are constitutions or are adopted within international organizations in other Articles of the Convention.3 Even so, Article 20(3) contains a special rule for reservations to a treaty which is a constituent instrument of an international organization.

History of the provision 5. The question of how to deal with the treaties which are the constituent instruments of

international organizations or which are adopted within such an organization ran throughout the work of the ILC on the topic of the law of treaties. Different approaches to the question were adopted at different stages of the work on the topic; and the precise solution represented by Article 5 emerged rather late in the discussions at the Vienna Conference. 6. Work on the law of treaties undertaken before the United Nations era was confined to treaties between States and made no mention of the treaties of international organizations.4 During the initial discussions in the 1950s on the basis of reports by Professor J. L. Brierly, a majority of the ILC favoured including the treaties of international organizations. However, the Commission left aside the question of the capacity of international organizations to make treaties, concentrating instead upon the rules applicable to treaties (p. 90) between States, with the intention of examining at a later stage whether these rules could be applied as they stood to international organizations or whether some modifications were needed.5 In 1962, the Commission considered afresh the law of treaties on the basis of the First Report by the new Special Rapporteur, Sir Humphrey Waldock, who advocated the conclusion of an international convention on the topic.6 The Commission's Report contained the following: 21. The Commission again considered the question of including provisions concerning the treaties of international organisations in the draft Articles on the conclusion of treaties. The Special Rapporteur had prepared, for submission to the Commission at a later stage in the session, a final chapter on treaty-making by international organisations. He suggested that this chapter should specify the extent to which the Articles concerning States apply to international organisations and formulate the particular rules peculiar to organisations. The Commission, however, reaffirmed its decisions of 1951 and 1959 to defer examination of the treaties entered into by international organisations until it had made further progress with its draft on treaties concluded by States. At the same time the Commission recognized that international organisations may possess a certain capacity to enter into international agreements and that these agreements fall within the scope of the law of treaties. Accordingly, while confining the specific provisions of the present draft to the treaties of States, the Commission has made it plain in the commentaries attached to Articles 1 and 3 of the present draft Articles that it considers the international agreements to which organisations are Parties to fall within the scope of the law of treaties.7 7. In 1963, when considering the termination or the suspension of the operation of treaties and withdrawal from multilateral treaties (topics dealt with in Part II, Section III of its draft), the Commission noted that some of its proposed provisions might encroach upon the internal regulations of international organizations, for example those concerning the suspension of or withdrawal from membership. Rather than propose qualifications to several Articles, the Commission's solution was to include a general provision, draft Article 48, reading as follows: Where a treaty is the constituent instrument of an international organisation, or has been drawn up within an international organisation, the application of the provisions of Part II, section III, shall be subject to the established rules of the organisation. The commentary explained that the application of the law of treaties to the constituent instruments of international organizations and treaties adopted within such organizations inevitably had to take account also of the law governing each organization. In the case of the Articles concerning the termination or suspension of the operation of treaties and withdrawal from multilateral treaties, the Commission feared that some of these Articles might encroach upon the internal law of international organizations, especially questions of membership.8 8. In comments received from governments on the preliminary draft Articles,9 the suggestion was made to extend the scope of draft Article 48 not only to cover Part II, Section III, but also the other draft Articles. As a note of caution, another suggestion was (p. 91) to avoid giving the impression that international organizations were completely free to depart from the general rules, deliberately framing new derogations.10 9. In revising its proposals, the Commission decided to recast draft Article 48 as a ‘general reservation’ (a strong term, used in the Commission's Commentary) covering the draft Articles as a whole.11 In its view, this course simplified the drafting of other provisions which would otherwise have required some qualification and it also avoided the risk of inadvertently overlooking any such provision. The Commission maintained its distinction between constituent instruments and treaties adopted by an organ of an organization, on the one hand, and treaties adopted by a diplomatic conference convened under the auspices of an organization, on the other. The qualification was to apply only to the former and not to the latter. 10. The Commission's final draft Articles of 1966 included the following Article 4: The application of the present Articles to treaties which are constituent instruments of an international organisation or are adopted within an international organisation shall be subject to any relevant rules of the organisation. The French text read: L'application des présents Articles aux traités qui sont les actes constitutifs d'une organisation internationale ou qui sont adoptés au sein d'une organisation internationale est subordonnée à toute règle pertinente de l'organisation. This formulation, especially the French text, was more explicit than draft Article 48. In its commentary, the Commission recalled the specific reservations proposed in its preliminary draft Articles, notably draft Article 48, and concluded that the question should be regulated by 12

a general reservation in the introduction, covering the draft Articles as a whole.12 11. At the Vienna Conference in 1968, proposals to delete the Article were advanced on the grounds that the effect of its retention would be to exclude many multilateral treaties from the scope of the Convention and to create in effect a lex specialis for international organizations.13 These proposals were opposed by several delegations as well as by observers from international organizations.14 After a full discussion, the proposals were rejected by a large majority.15 A proposal to weaken the Article's effect (‘shall take into account’ the relevant rules) was also rejected but by a much smaller majority,16 and some other proposals to reduce its scope were tabled. In particular, an amendment proposed by Peru sought to avoid the risk of creating a second set of rules for treaties concluded within international organizations.17 The Peruvian formulation was to provide that the future Convention would apply to such treaties but without prejudice to the rules of the international organization concerned. Some critics viewed the Commission's draft Article as (p. 92) superfluous; others considered that it gave international organizations too much scope for derogating from the general rules. In an important statement, the Expert Consultant and former Special Rapporteur Sir Humphrey Waldock explained that the Commission had not intended to make a general reservation in favour of international organizations and that the Commission had proceeded on the assumption that the provisions would be generally applicable to all treaties.18 12. The Drafting Committee considered several drafting suggestions and produced a revised text, reading as follows: The present Convention applies to any treaty which is the constituent instrument of an international organisation or to any treaty adopted within an international organisation, without prejudice to any relevant rules of the organisation. The French version read: La présente Convention s'applique à tout traité qui est l'acte constitutif d'une organisation internationale et à tout traité adopté au sein d'une organisation internationale, sous réserve de toute règle pertinente de l'organisation. 13. This text marked a significant reformulation of the final draft Article prepared by the Commission.19 In its essentials, the new draft adopted the approach of the Peruvian amendment in the sense that it stressed the application of the Convention while at the same time this application was stated to be ‘without prejudice’ (or ‘sous réserve’) to the rules of an organization. In introducing the revised draft, the Chairman of the Drafting Committee explained that the term ‘rules’ applied to written rules and unwritten customary rules, but not to procedures which had not reached the stage of mandatory legal rules.20 The Committee of the Whole adopted the revised version of the Article without objection, apart from some abstentions. The Plenary adopted the text without change, apart from the deletion of the comma before ‘without prejudice’. As a result, the Commission's proposed ‘general reservation’ was reformulated as a general qualification.

B. Questions of interpretation 14. Several terms appearing in Article 5 call for some explanation, notably the expressions ‘constituent instrument’, ‘international organisation’, ‘adopted within an international organisation’, ‘without prejudice’, and ‘relevant rules of the organisation’. 15. The term ‘constituent instrument’ is descriptive. An international organization may have been constituted by a treaty that bears the title ‘Charter’, ‘Constitution’, ‘Convention’, or ‘Agreement’; and the original constituent instrument may have been amended, modified, or supplemented by a later instrument. The title is not a material factor as long as the instrument is a treaty and its terms constitute an international organization. The term ‘constituent instrument’ is narrower than ‘constitution’ in that the former is confined to treaties whereas the latter may include decisions, resolutions, and (p. 93) agreed practices. Occasionally, a major instrument may contain both substantive provisions and a constitution. In addition to the UN Charter itself, a leading example is the United Nations Convention on the Law of the Sea which, as well as setting out the substantive terms of the modern law of the sea, constituted two autonomous international organizations, namely the International Seabed Authority and the International Tribunal for the Law of the Sea, and also created the Commission on the Limits of the Continental Shelf. In such a case, the qualification for the relevant rules of the organization must be confined to those provisions of the treaty which constitute the organization concerned. The qualification should not be extended any wider than necessary. 16. The term ‘international organisation’ is defined in Article 2(1)(i) to mean ‘an intergovernmental organisation’. This definition excludes non-governmental organizations, but is otherwise comprehensive in its scope. The term includes global organizations (such as the United Nations and its Specialized Agencies as well as bodies such as the World Trade Organization and the International Seabed Authority), and regional organizations such as the Council of Europe or the Organization of American States. It is not clear to what extent the term may be applicable to bilateral treaties creating joint commissions, such as ones for the joint development of oil or gas fields or ones for the conservation and management of natural resources. Something may depend upon the precise terms of the bilateral treaties concerned. 17. The European Community (EC) is a special case among international organizations.21 It meets the definition supra of the term but it has some features that set it aside from others, especially those in the UN family. These distinguishing features include the transfer of certain or all competences in a variety of different fields from the member States to the EC and its participation in bilateral and multilateral treaties to the exclusion of its member States. The

EC's emergence on the international stage has been recent and rapid. It may be recalled that in 1968 and 1969, the Council of Europe was represented at the Vienna Conference as an observer, but the European Economic Community was not. Since then, the EC has emerged as a major participant in global international organizations such as the World Trade Organization and global law-making Conventions such as the United Nations Convention on the Law of the Sea (pursuant to its Annex IX), as well as a major treaty partner in many bilateral treaties to the exclusion of the (currently) 27 member States.

References 18. Bilateral fisheries agreements between the EC and a number of coastal States provide an example: through decisions taken in Brussels, fishing opportunities are allocated to member States who in turn allocate them to vessels flying their flags. Recently, between 2002 and 2007, the Council of the European Union has concluded more than 70 bilateral agreements relating to the conduct of EU crisis management missions in third States as part of the European Security and Defence Policy.22 The EC has in recent years often participated in global treaties and Conventions as a ‘regional economic integration organisation’. The European Court of Justice has applied several provisions in the Vienna Convention when deciding cases about different treaties to which the EC was a party.23(p. 94) At the same time, the Court's constant jurisprudence interprets the constitutive treaties as having created a new, autonomous legal order. In that perspective, many aspects of relations between the member States are governed by Community law rather than by other treaties to which they are parties.24 19. The concept of a treaty that is ‘adopted within an international organisation’ is a narrow one. It extends to any treaty, whatever its title, adopted by an organ of an organization but not to one adopted by a diplomatic conference convened by an international organization. However, in practice many international organizations tend to draft treaty texts in their deliberative organs (even if not all the potential contracting parties are member States) and decide on pragmatic or logistical grounds whether to adopt the text of the treaty within the organization or instead to convene a diplomatic conference. Such diplomatic conferences may in effect be added to a session of an organ of the organization but with slightly different participation. In other words, the distinction between treaties adopted ‘within’ an international organization and those adopted at a diplomatic conference may not be of real significance or may become blurred in practice. 20. ‘Without prejudice’ is the key term in Article 5.25 Clearly, it must apply both to the constituent instrument of an international organization and to the treaty adopted within such an organization. As a matter of drafting, it would have been possible to have inserted the words ‘in each case’ before ‘without prejudice’. Such a course was perhaps regarded as slightly pedantic and the words are to be implied.

References 21. The expression ‘relevant rules of the organisation’ which was left undefined in the Vienna Convention of 1969 encompasses the rules contained in the constituent instruments of the organization, including any amendments and supplementary rules, as well as the rules of procedure of the organization's organs and their previous decisions. The rules of the organization may, for instance, include a prohibition on the making of reservations to Conventions adopted within the organization, as in the case of International Labour Conventions. At the Vienna Conference, there was a desire on the part of several delegations also to include settled practices or agreed interpretations of the constituent instruments.26 An example of the latter is provided by the consistent practice of the UN Security Council to interpret the voting rules in Article 27(3) of the UN Charter to mean that a permanent member's abstention does not amount to a non-concurring vote or veto.27 The desired flexibility was introduced by the statement of the Drafting Committee's Chairman who referred to ‘unwritten customary rules’.28 In the Vienna Convention of 1986, the expression ‘rules of the organisation’ was defined by Article 2(1)(j) to mean ‘in particular, the constituent instruments, decisions and resolutions adopted in accordance with them, and established practice of the organisation’. While there may be some nuances, the definition would probably be equally applicable with regard to the Vienna Convention of 1969.

References

(p. 95) C. The application of the rule in Article 5 22. It is not possible to attempt a comprehensive survey of the application of Article 5, given the large number of different international organizations in the modern world and the vast amount of treaty practice they have generated since the entry into force of the 1969 Vienna Convention. However, it is possible to provide a few examples of instances in which Article 5 has provided or still provides some flexibility in the work of different international organizations. 23. An early indication was provided by the amendment tabled by the delegation of the United States at the first session of the Vienna Conference to delete Article 5 and to insert exceptions for international organizations in what became Articles 7 (Full powers), 9 (Adoption of the text), 10 (Authentication), 14 (Accession), 19 and 20 (Reservations), 40 (Modification of multilateral treaties), and 76 (Depositaries).29 The case for retaining the ILC's approach was argued by several spokesmen of Specialized Agencies. Thus, for the ILO it was noted that its

rules and practices in the following matters were incompatible with what became Articles 9(2) (Adoption of the text by an international conference), 10 (Authentication), 15 (Accession), 19 to 23 (Reservations), 30 (Successive treaties) and 40 (Amendment), and 65 to 68 (Procedures with respect to invalidity, etc.).30 The UN Food and Agriculture Organization's spokesman cited the procedures for negotiations, authentication of the text, entry into force, and depositary functions as points of difficulty.31 The representative of the Paris and Berne Unions on intellectual property pointed out, in connection with the proposals on successive treaties, that the treaties of the two Unions were of a particular type in that, because the Union formed a unified whole, a State which was a Party only to the latest of those treaties was implicitly bound to a State which was a Party only to an earlier treaty in the same series.32 The observer of the International Bank for Reconstruction and Development noted that some safeguards were needed for constitutions of international organizations as well as for treaties adopted within them in respect of about 30 Articles, including those mentioned by other spokesmen.33 These statements were influential in securing the retention of what became Article 5. 24. Regarding the amendment of treaties, the treaty practice of the International Maritime Organization (IMO) is generally based on the Vienna Convention, even though some of its member States are not parties to it. Article 40 of the Vienna Convention deals with the amendment of multilateral treaties and Article 30 concerns the application of successive treaties relating to the same subject matter. Both Articles attempt to regulate the situation whereby some States are party to two related treaties (usually a treaty and an amending treaty) while other States are party to only one of the two treaties. In 1972, (p. 96) when revising the Collision Regulations which form the ‘rule of the road’ for shipping, the IMO wished to avoid the situation whereby some States' ships would continue steering according to the old rules while others would be following the new ones.34 The solution was to provide for the adoption of new rules by the Maritime Safety Committee and the Assembly of the IMO by two-third majorities, for the entry into force of the rules on a date to be specified by the Assembly unless more than one-third of the contracting parties objected by a specified date, and for the new rules to replace and supersede the old for all non-objecting contracting parties. This system of tacit consent has been adopted by the IMO for the amendment of technical annexes to many of its conventions.35 The recent practice of the IMO in this regard shows that Articles 30 and 40 of the Vienna Convention are applied in a flexible manner which is consistent with Article 5. 25. The foregoing survey of concerns expressed by the representatives of international organizations in 1968 and of the more recent IMO practice, shows that a wide range of Vienna Convention provisions are qualified by Article 5. The impact varies from one organization to another depending upon the particular rules and practices of each organization. 26. As regards the modification or adjustment of the constitutions of international organizations, it may be noted that the International Seabed Authority has operated from the outset, that is to say, from its inaugural meeting held on 16 November 1994, on the basis of Part XI of the UN Convention on the Law of the Sea and the Implementation Agreement of July 1994. According to the terms of the Implementation Agreement, Part XI of the Convention and the Implementation Agreement ‘shall be interpreted and applied together as a single instrument. In the event of any inconsistency between this Agreement and Part XI, the provisions of the Agreement shall prevail’. No problems have arisen from the fact that the States parties to the Convention were, and remain, more numerous than those to the Implementation Agreement. Once again, Article 5 of the Vienna Convention provides some flexibility.36

References 27. A question concerning Article 5 arose in the case before the International Court of Justice between Pakistan and India concerning an appeal from the Council of the International Civil Aviation Organization (ICAO). Judge de Castro, who in his former capacity had been a participant in the Vienna Conference, stated the following with reference to Article 5 in his Separate Opinion when addressing a contention by one of the parties that the other party had acted in breach of the Chicago Convention, constituting the ICAO: In the course of the discussions at the Vienna Conference, emphasis was laid on the need for the utmost respect for the peculiarities of international organisations. The States did not wish to weaken the growing achievements and the effectiveness of international organisations. In any treaty creating an organisation a distinction is to be drawn between: (1) the constituent instrument of the organisation, which is subject to the lex generalis on the coming to birth of treaties, and (2) the constitution which sets up the 1ex specialis or rules to govern (p. 97) the life and functioning of the organisation. It is this special aspect which is responsible for the classification of this type of treaty by writers among ‘treaty-laws’ or ‘Vereinbarungen’. …Whatever the nature of its legal personality may be, each organisation has a constitution which provides it with a general rule to which all its members are subject. Their rights and obligations towards each other flow from this constitution. It is the fact that the organisation is a legal person which prevents the legal relationships between its members being considered as governed by a series of independent bilateral treaties. The life of the organisation is not governed disjunctively by an

accumulation of bilateral treaties. Members of the organisation are linked together by the constitution, and their relationships are governed by the constitution. Such relationships are those resulting from the status of member of the organisation, and not the status of a Party to bilateral treaties. This is of the very essence of organisations; it is required by the common interest, and is a necessity for their functioning and effectiveness. The State which is in breach of those of its obligations or duties which derive from this constitution, towards another member State of the organisation, is not in breach of a single bilateral treaty between them, it is in breach of the constitution of the organisation. The effects of such a breach are governed by that constitution. It is only in a supplementary way that the general rules of international law, those enshrined in the Vienna Convention may be applied.37 The learned judge concluded that in order to ascertain the consequences of the breaches of which India had accused Pakistan, one must above all take into account the constitutional significance of the Chicago Convention and the Transit Agreement. He emphasized that treaties creating organizations are subject to special rules and not to the rule laid down in Article 60 of the Vienna Convention.

D. Assessment 28. The legislative history of Articles displays an evolution in the thinking of the members of the ILC. At first, the Commission included qualifications in particular Articles dealing with the conclusion of treaties. Subsequently, it adopted a general reservation, creating a lex specialis for the benefit of international organizations, even though there were topics to which it would not be applicable in practice. The reformulation of the proposal made during the Vienna Conference produced a more balanced provision according to which the general rules in the Convention are applicable in principle to the constituent instruments of international organizations and to treaties concluded within international organizations. Nonetheless, if an organization has adopted some relevant internal rules, the latter are not prejudiced by the Convention's rules and continue to apply. 29. Shabtai Rosenne has pointed out that ‘(f)unctional derogations of this kind from the general law of treaties for these particular classes of treaty are fully justified’.38 The learned author, who was an ILC member at the relevant time and attended the Vienna Conference, considered such derogations to be a necessary consequence of the Commission's decision not to propose any special rules for the possible distinction between the traité-loi and the traitécontrat. The derogation in Article 5 is also consistent with the general approach adopted in other Articles of the Vienna Convention whereby (p. 98) the rules are residual in character in the sense that States remain free to agree upon their own rules in a particular treaty if they so wish. 30. In Article 5, the Vienna Conference adopted a flexible provision that at the same time applies and qualifies the application of the general rules in the Vienna Convention. It does so in circumstances where there is a relevant rule in an international organization that relates either to its constituent instrument or to a treaty adopted within the organization. Shabtai Rosenne has described the Article as creating ‘a broad and variable exception to the application of the Vienna Conventions’.39 He notes that the ‘without prejudice’ formula avoids rigid rules about when and to what extent the relevant rules of an organization prevail. Rather, this is to be determined in each case by the constituent instruments, decisions, and resolutions of each organization. 31. It appears that this Article has succeeded in its aims and caused few if any practical problems for international organizations and their member States. Moreover, its inclusion simplified the drafting of the 1969 Vienna Convention. *

DAVID HEYWOOD ANDERSON

Footnotes: 1 The reasons were set out in para. 20 of the Report of the ILC, 17th session, YILC, 1965, vol. II, p 158. 2 The Conference adopted a resolution requesting the General Assembly to invite the ILC to undertake further work. This was done by GA Res. 2501 (XXIV), 1969. 3 This is the approach being adopted at present by the ILC in its draft Guidelines on Reservations which refer routinely to ‘States or international organisations’. 4 See eg the Harvard Draft Articles, AJIL, Suppl. 1935, vol. 29, p 653. Similarly, the work of the League of Nations' Committee of Experts for the Progressive Codification of International Law on reservations to multilateral treaties concerned treaties between States. 5 ILC Report, 3rd session, 1951, vol. I, p 136. 6 ILC Report, 14th session, 1962, vol. II, pp 159 ff. 7 YILC, vol. II, p 161, para. 21. 8 ILC Report, YILC, 1963, vol. II, p 213. 9 Reproduced in YILC, 1966, vol. II, pp 279 ff. 10 Written comments of the United States: ibid, p 355. 11 ILC Report, YILC, 1966, vol. II, p 191, commentary on draft Art. 4. 12 Ibid.

13 Opponents included the United States: see R. D. Kearney and R. E. Dalton, ‘The Treaty on Treaties’, AJIL, 1970, vol. 64, p 495 at p 505. 14 See the remarks of Wilfred Jenks, observer of the ILO: Official Records, 1st session, 36–7. 15 The voting was 10–84–2: Official Records, 1st session, 10th meeting of the Committee of the Whole (3 April 1968), p 57. 16 The voting was 26–42–19. Proposal by the Ukraine A/CONF.39/C.1/L.12. 17 A/CONF.39/C.1/L.58. 18 Official Records, 1st session, 10th meeting of the Committee of the Whole, pp 56–7. 19 The reformulation affected both the English and French versions proposed by the ILC. As Kearney and Dalton, supra n 13, observed, ‘In its present form, its character as lex specialis is less pronounced’ (at p 506). 20 Official Records, 1st session, 28th meeting (18 April 1968), p 147. 21 The position of the European Union was reviewed in detail by Professor P. Daillier in his commentary on Art. 5 in the first edition of this work. 22 A. Sari, ‘The Conclusion of International Agreements by the European Union in the context of the ESDP’, ICLQ, 2008, vol. 57, p 53. 23 For a survey of these decisions until 1998, see P. J. Kuiper, ‘The Court and the Tribunal of the EC and the Vienna Convention on the Law of Treaties 1969’ in Legal Issues of European Integration, 1998, p 1. 24 This question is reviewed by Professor Daillier, supra n 21. 25 A ‘without prejudice’ clause in another international agreement was the subject of judicial findings in the Fisheries Jurisdiction case (United Kingdom v Iceland), ICJ Reports 1974, p 3, at pp 17–20. 26 See eg the statement by the UK Delegation in Official Records, 7th plenary meeting, 28 April 1969, p 4. 27 This ‘general practice of the Organisation’ was upheld by the International Court of Justice in the Namibia (South West Africa) case, ICJ Reports 1971, p 22; see also C. A. Stavropoulos, ‘The Practice of Voluntary Abstentions by Permanent Members of the Security Council under Article 27, paragraph 3, of the Charter of the United Nations’, AJIL, 1967, vol. 61, p 737. 28 Official Records, 1st session, 28th meeting of the Committee of the Whole (18 April 1968), p 147. 29 A/CONF.39/C.1/L.21. The proposal was introduced by Professor M. McDougall: 8th Meeting of the Committee of the Whole, Official Records, vol. I, p 43. 30 Mr W. Jenks, 8th Meeting of the Committee of the Whole, Official Records, vol. I, pp 36–7. The ILO did not seek changes in the ILC's proposals but instead requested ‘a clear recognition that an international organisation might have a lex specialis that could be modified by regular procedures’. 31 Ibid, pp 42–3. 32 Ibid, p 48. 33 Ibid, pp 48–9. The Council of Europe's secretariat put the number of affected Articles at 27. 34 And adopting the Regulations in the form of a free-standing treaty, separate from the Safety of Life at Sea Convention. 35 Full details can be found at: http://www.imo.org, under ‘Conventions: tacit acceptance procedure’. 36 S. N. Nandan, ‘Administering the Resources of the Deep Seabed’ in D. Freestone, R. Barnes, and D. Ong, The Law of the Sea—Progress and Prospects (Oxford: Oxford University Press, 2006), p 75: M. C. Wood, ‘International Seabed Authority: The First Four Years’, Max Planck Yearbook of United Nations Law, 1999, vol. 3, p 173; M. C. Wood, ‘The International Seabed Authority: Fifth to Twelfth Sessions (1999–2006)’, Max Planck Yearbook of United Nations Law, 2007, vol. 11, p 47. 37 Appeal relating to the Jurisdiction of the International Civil Aviation Organization Council, ICJ Reports 1972, p 46, at p 129 (Registry's translation from the original French text). 38 S. Rosenne, Developments in the Law of Treaties 1945–1986 (Cambridge: Cambridge University Press, 1989), p 251. 39 Ibid, p 257. * Former Judge International Tribunal for the Law of the Sea, Hamburg, Germany.

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Volume I, Part I Introduction, Art.5 1986 Vienna Convention David Heywood Anderson From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Treaties, interpretation — Vienna Convention on the Law of Treaties — Treaties, application — Treaties, invalidity, termination, suspension, withdrawal — Treaties, entry into force

(p. 99) 1986 Vienna Convention Article 5 Treaties constituting international organizations and treaties adopted within an international organization The present Convention applies to any treaty between one or more States and one or more international organizations which is the constituent instrument of an international organization and to any treaty adopted within an international organization, without prejudice to any relevant rules of the organization. A. General characteristics 99 Object and purpose 99 History of the provision 100 B. Questions of interpretation 102 C. Application 102 D. Assessment 103

Bibliography Aust, A. I., Modern Treaty Law and Practice (2nd edn, Cambridge: Cambridge University Press, 2007) Gaja, G., ‘A “New” Vienna Convention on Treaties between States and International Organisations or between International Organisations: A Critical Commentary’, BYBIL, 1987, vol. 58, p 253 Jennings, R. Y and Watts, A. D., Oppenheim's International Law (9th edn, Harlow: Longman, 1992), pp 1219 ff Morgenstern, F., ‘The Convention on the Law of Treaties between States and International Organisations or between International Organisations’ in Y. Dinstein (ed.), International Law in a Time of Perplexity (The Hague: Martinus Nijhoff, 1989) Reuter, P., ‘La Conférence de Vienne sur les traités des organisations internationales et la sécurité des engagements conventionnels’ in Le Développement de l'ordre juridique international (Paris: Economica, 1984) —— Introduction to the Law of Treaties (2nd edn, London: Kegan Paul International, 1995) Rosenne, S., Developments in the Law of Treaties 1945–1986 (Cambridge: Cambridge University Press, 1989)

A. General characteristics Object and purpose 1. The characteristics of Article 5 are similar to those of Article 5 of the 1969 Vienna Convention: a full survey of those characteristics is included in the commentary on Article 5 of the 1969 Convention to which the reader is referred. 2. Very briefly, therefore, the purpose of Article 5 is to provide answers to the question whether the general rules set out in the Convention apply at all to treaties constituting or (p. 100) adopted within an international organization. If the general rules do in principle apply, Article 5 also addresses the question whether they apply in such a way as to override any inconsistent rules which the organization has adopted or whether the general rules of the Convention give way to the specific rules of the organization. 3. Article 5, as the final introductory Article in Part I of the Convention, has a general scope: it applies to all other Articles in the Convention. It is closely related to Articles 1, 2, and 3: especially noteworthy in this regard is the definition of ‘rules of the organisation’ in paragraph 1(j) of Article 2 which finds no parallel in the 1969 Convention.

History of the provision 4. In his First Report to the ILC on the topic of the law of treaties to which international organizations are parties,1 the Special Rapporteur, Professor Reuter, reviewed the question of the relationship between the law of each international organization and the general rules on treaties in the light of the outcome of the 1969 Vienna Conference. Recalling the terms of Article 5 of the 1969 Convention, he observed that: It is clear that for treaties to which one or more international organisations are parties at least the same reservation must be made, since such treaties concern the organisation more directly than treaties between States concluded within one of its organs. (emphasis in original) He considered that the exact meaning of the term ‘any relevant rules of the organisation’, which had appeared in Article 5 of the 1969 Vienna Convention, would need to be elucidated during the further work of the Commission.2 However, in his first set of draft Articles on the topic, submitted two years later, he considered that there was no need to include a provision similar to Article 5 of the 1969 Vienna Convention.3 This view was accepted by the

Commission in its first set of draft Articles. No detailed explanation was given: it may be surmised that the Commission considered that, since any new Convention adopted on the basis of its proposals would state the law applicable to the very topic of treaties and international organizations, there was no need to provide expressly that the Convention did apply to such treaties. 5. Be that as it may, during the second reading of the draft Articles, the Commission reviewed the question afresh and concluded that even though it was dealing with rather exceptional circumstances, it would formulate for the sake of completeness a proposal in its final draft Articles which followed the existing Article 5 without substantive change.4 In doing so, the Commission maintained the ‘parallelism’ between its proposals and the existing Convention of 1969. The Commission's draft Article read as follows: The present Articles apply to any treaty which is the constituent instrument of an international organisation and to any treaty adopted within an international organisation, without prejudice to any relevant rules of the organisation.5 (p. 101) The comma before ‘without prejudice’ had not appeared in the Vienna Convention of 1969. The full French version read as follows:

Article 5.—Traités constitutifs d'organisations internationales et traités adoptés au sein d'une organisation internationale Les présents Articles s'appliquent à tout traité qui est l'acte constitutif d'une organisation internationale et à tout traité adopté au sein d'une organisation internationale, sous réserve de toute règle pertinente de l'organisation.6 Thus, as in the case of Article 5 of the 1969 Convention, the English and French texts display different approaches: ‘without prejudice’, which is akin to a rule of interpretation, and ‘sous réserve’, which is the equivalent of ‘subject to’ and more emphatic. 6. In its commentary on draft Article 5, the Commission noted that although the same term ‘treaty’ appeared in both Article 5 of the 1969 Vienna Convention and its parallel draft Article, this term was defined in different ways in the two texts. Accordingly, the scope of the draft Article was not the same as that of Article 5 of the 1969 Convention. In the draft Articles, the term ‘treaty’ related to those international agreements which had been concluded between one or more States and one or more international organizations or between two or more organizations. Thus, where draft Article 5 referred to ‘any instrument which is the constituent instrument of an international organisation’, it contemplated the situation where an international organization was a party to a treaty which formed the constituent instrument of another organization.7 Similarly, where draft Article 5 alluded to treaties adopted within an international organization, it referred to the situation where a treaty was adopted within an organ of an international organization of which another such organization was a member. More generally, the Commission cited the examples of commodity agreements to which ‘certain organisations having special characteristics’ were parties alongside States:8 the European Communities were clearly in mind although not mentioned by name—probably on account of political sensitivities at the time. The Commission also alluded to the situations whereby the UN had a special status in some organizations and the European Communities were an associate member of the General Agreement on Tariffs and Trade.9

References 7. During the Vienna Conference in 1986, an initial proposal by Cape Verde to delete the Article was not accepted, largely on account of fears on the part of some delegations that the result would be to exclude constituent instruments of international organizations and treaties adopted within such organizations from the scope of the new Convention. Concerns were also expressed about the possibility of ‘supra-organizations’ the members of which would be composed entirely of international organizations. In order to meet these concerns, the wording of draft Article 5 was modified by the insertion of the words ‘between one or more States and one or more international organisations’ after the first mention of the word ‘treaty’.10 The effect was to exclude treaties between two or more international organizations from the scope of Article 5.

(p. 102) B. Questions of interpretation 8. Three terms used in Article 5 are defined in Article 2 of the Convention: these are ‘treaty’, ‘international organisation’, and ‘rules of the organisation’. 9. The general definition of the term ‘treaty’ which is contained in Article 2(1)(a), covers both treaties between States and international organizations and treaties between two or more international organizations. However, this definition is restricted in its application to Article 5 which includes the qualifying phrase ‘between one or more States and one or more international organisations’. As a result, the provision contained in Article 5 does not apply to treaties between two or more international organizations such as the numerous relationship or cooperation agreements between the UN and organizations within the UN family. In other words, the application of Article 5 is confined to treaties which have both States and international organizations as parties. 10. The term ‘international organisation’ is defined in Article 2 to mean an intergovernmental organization: types of intergovernmental organizations vary considerably and range from the

UN, its Specialized Agencies, and other global organizations at one extreme, over regional and sub-regional organizations, to bilateral commissions if the latter have been imbued with international personality. 11. The expression ‘rules of the organisation’ appeared also in Article 5 of the 1969 Vienna Convention: in that instance, the term was not defined but it was the subject of an interpretive explanation by the Chairman of the Drafting Committee along similar lines as the definition. The definition is cast in flexible terms, expressly including established practice as part of the ‘rules’. The organization the rules of which are relevant is the one constituted by the treaty or the one within which the treaty is adopted: the rules of another organization, such as the European Community, which may have become a party to the treaty along with States are not relevant rules in the context of Article 5. 12. The term ‘constituent instrument’ is descriptive of a type of treaty which constitutes an international organization irrespective of the title of the instrument. 13. The expression ‘treaty adopted within an international organisation’ covers treaties adopted by an organ of an organization but not one adopted by an ad hoc diplomatic conference convened by the organization. In certain circumstances, the distinction may become blurred: for instance, there is little practical difference between a treaty adopted as the annex to a UN General Assembly Resolution and then opened for signature at a signing ceremony in the General Assembly Hall in New York, and a treaty adopted and opened for signature by a diplomatic conference convened by a General Assembly Resolution and held in Vienna or Geneva.

C. Application 14. The Convention of 1986 is not yet in force. Accordingly, as a matter of strict law, Article 5 has not been directly applied. When it does enter into force, the commentary on Article 5 of the 1969 Vienna Convention points to several instances in which Article 5 is likely to provide additional flexibility for the work of international organizations. First and foremost, there are the rules of many international organizations concerning the conclusion (p. 103) of treaties under their auspices. Matters such as the adoption and authentication of the text, participation and accession in treaties, reservations, successive treaties dealing with the same subject matter, and the amendment of treaties would also be covered by Article 5.

D. Assessment 15. In general, in considering the topic of the law of treaties to which international organizations are parties, the Commission was anxious not to do anything that would weaken the 1969 Vienna Convention or that could become an obstacle to the continuing development of the law on international organizations.11 These factors led the Commission to follow the wording of the 1969 Vienna Convention as closely as possible and avoid departures from it, including omissions. The case for including draft Article 5 was not put strongly: the Article ‘was perhaps not without value’.12 The initial views of the Special Rapporteur and the Commission—to the effect that a special Article was not needed—may not have been totally abandoned. 16. At the time of the Vienna Conference in 1986, there remained residual hesitations on the part of some, mainly East European, delegations regarding the status of international organizations in general and the European Communities in particular. These lingering hesitations, a result of the cold war, related to the treaty-making capacity of international organizations and in particular to the acceptance of the EC as a treaty partner. These factors influenced the debate on draft Article 5. Since the ending of the cold war, the role of the EC has become much less politically controversial. The EC has become a party in its own right to many international conventions, including the United Nations Convention on the Law of the Sea, and has become a member of many important international organizations, including the World Trade Organization. 17. Article 5 is clearly not essential in order to make the point that the rules in the 1986 Convention apply to international organizations since that is the purpose of the entire Convention. The sole effect, therefore, of Article 5 is to safeguard or give priority to the relevant rules of individual organizations over the general rules in the law of treaties. These latter rules include, most relevantly, those on the conclusion and entry into force of treaties. In this perspective, Article 5 is simply a ‘without prejudice’ Article,13 safeguarding the rules of international organizations in relation to their constituent instruments and treaties adopted within one of their organs in circumstances where one international organization is a member of another. *

DAVID HEYWOOD ANDERSON

References

Footnotes: 1 ILC Report, 24th session, YILC, 1972, vol. II, Part One, p 197. 2 This was done, taking into account the Commission's work on the representation of States in their relations with international organizations in 1971, by including a definition of the term in Art. 2(1)(j) of the 1986 Vienna Convention. 3 ILC Report, 26th session, YILC, 1974, vol. II, Part One, p 135, at p 145. 4 ILC Report, 34th session, YILC, 1982, vol. II, Part Two, p 23.

5 Ibid. 6 ILC Report, 34th session, YILC, 1982, vol. II, Part Two, p 23. 7 Ibid. 8 The international agreements were the 1971 International Wheat Agreement, the 1975 International Cocoa Agreement, the 1976 International Coffee Agreement, the 1977 International Sugar Agreement, the 1979 International Rubber Agreement, the 1979 International Olive Oil Agreement, and the 1981 Sixth International Tin Agreement. The agreements constituted international commodity organizations. 9 The UN's relationship to the International Labour Organization and to the treaty-making practice of the Council for Namibia, created by the UN, was kept in mind. 10 In a similar vein, Cape Verde proposed the following: The present Convention applies to any treaty which is the constituent instrument of an international organisation of which States and intergovernmental organisations are members and to any treaty adopted within an international organisation, without prejudice to any relevant rules of the organisation. (A/CONF.129/C.1/L.21) 11 As the learned editors of Oppenheim's International Law put it: In effect, the 1986 Convention applies to the treaties with which it deals the same rules as those laid down by the 1969 Convention for treaties between States, with such adaptations as are necessary because of the characteristics of international organisations. (p 1220) 12 ILC Report, 34th session, YILC, vol. II, Part Two, p 23, para. 2. 13 A ‘without prejudice’ clause in another international agreement was the subject of judicial findings in the Fisheries Jurisdiction case (United Kingdom v Iceland): ICJ Reports 1974, p 3, at pp 17–20. * Former Judge International Tribunal for the Law of the Sea, Hamburg, Germany.

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Volume I, Part II Conclusion and Entry into Force of Treaties, s.1 Conclusion of Treaties, Art.6 1969 Vienna Convention Daniel Turp, François Roch From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Treaties, conclusion — Customary international law — Sovereignty — Treaties, scope (temporal and territorial) — Recognition of states

(p. 107) 1969 Vienna Convention Article 6 Capacity of states to conclude treaties Every State possesses capacity to conclude treaties. A. General characteristics 107 Object and purpose 108 Customary status 111 B. The scope 112 The capacity to conclude treaties and their validity 112 The capacity to conclude treaties and its limitations by international and internal law 114 The capacity to conclude treaties and the right to become a party to multilateral treaties 115 C. Conclusion 116

Bibliography Barberis, J. A., ‘Nouvelles questions concernant la personnalité juridique internationale’, RCADI, 1983-I, vol. 179, pp 145–304 Ganshof Van Der Meersch, W. G. and Ergec, R., ‘Les relations extérieures des États à système constitutionnel régional ou fédéral’, RDIDC, 1986, pp 297–333 Lissitzyn, O. J., ‘Territorial Entities other than Independent States in the Law of Treaties’, RCADI, 1968-III, vol. 125, pp 1–88 Patry, A., La capacité internationale des États: l'exercice du jus tractatuum (Quebec: Presses de l'Université du Québec, 1983) Rousseau, Ch., ‘La possession de la qualité de sujet de droit international’, RGDIP, 1965, pp 775–844

A. General characteristics 1. Historically, the capacity to conclude treaties has been one of the four classic characteristics of State sovereignty: jus tractatuum, jus legationis, jus standi, and jus belli.1 Although a State's capacity to conclude treaties derives directly from its sovereignty, jus tractatuum or contrahendi is largely derived from the different legal capacity of each subject of international law.2 The capacity to conclude treaties includes the ability to create, (p. 108) modify, or end a legal relationship at the international level, especially by the conclusion of agreements with other subjects of international law. These subjects can either be primary subjects such as sovereign States or derived subjects of international law, such as international organizations.3

References 2. Even if the first ILC draft Articles on the Law of Treaties set guidelines and precisions on the capacity of each subject of international law to conclude treaties, the draft Convention discussed by the United Nations Conference on the Law of Treaties only dealt with the capacity for sovereign States and members of federal unions to conclude treaties. Any reference to the jus tractatuum of international organizations was excluded from discussion. In the end, the text of Article 6 of the Vienna Convention on the Law of Treaties only referred to the capacity of sovereign States to conclude treaties. Thus, the capacity of members of federal unions to conclude such agreements was not included in the text of the Convention. Although some delegations thought that the inclusion in the Convention of a reference to the capacity of States to conclude treaties was superfluous, the new Article 6 gave rise to an important consensus at the Conference.

Object and purpose 3. The initial draft Article on the capacity to conclude treaties is an interesting starting point to assess the object and purpose of a provision dealing with such capacity. It read as follows:

Article 3 1. Capacity to conclude treaties under international law is possessed by States and other subjects of international law. 2. In a federal State, the capacity of the member States of a federal union to conclude treaties depends on the federal constitution. 3. In the case of international organizations, capacity to conclude treaties depends on the constitution of the organization concerned.

References

4. In its comments on this provision, the Commission mentioned that ‘some members were doubtful about the need for an article on capacity in international law to conclude treaties.’ They pointed out that capacity to enter in diplomatic relations had not been dealt with in the Vienna Convention [on Diplomatic Relations] and suggested that, if it had to be dealt with in the law of treaties, the Commission might find itself codifying the whole law concerning the ‘subjects’ of international law. ‘[W]hile holding that it would not be appropriate to enter into all the detailed problems of capacity which may arise’, the Commission nevertheless ‘decided to include the present article setting out three broad provisions concerning capacity to conclude treaties’.4 (p. 109) 5. After having carefully examined the observations of the governments on draft Article 3, some of which referred to the incomplete, superficial, and dangerous character of its content,5 the Special Rapporteur, Sir Humphrey Waldock, invited the Commission to delete this Article: After careful consideration of the comments of Governments and of the records of the Commission's previous discussion of this article, the Special Rapporteur is of the opinion that the entire article should be deleted. He shares the view of those who think that the question of capacity is more prominent in the law of treaties than in that of diplomatic intercourse. But he doubts both the value of the truncated treatment of the question which is found in article 3 as at present drafted and the possibility of formulating more extended provisions that would have a reasonable prospect in present circumstances of meeting with general acceptance.6 The Commission nevertheless decided to maintain the two first paragraphs, which addressed the capacity to conclude treaties both by States and by members of federal unions. The Commission agreed to delete the third paragraph on the capacity for international organizations to conclude treaties following its decision to limit the scope of the Convention to treaties concluded between States.7 This new version of draft Article 3 became Article 5 of the draft Articles on the Law of Treaties submitted to the United Nations Conference on the Law of Treaties. Draft Article 5 read as follows:

Article 5. Capacity of States to conclude treaties 1. Every State possesses capacity to conclude treaties. 2. States members of a federal union may possess a capacity to conclude treaties if such capacity is admitted by the federal constitution and within the limits there laid down. 6. During the two sessions of the Conference, the provision on the capacity of States to conclude treaties gave rise to intense debates.8 Some delegations suggested that written changes were necessary to ensure the coherence of the provision. Others proposed to delete it entirely. Some States were satisfied with the content of draft Article 5. They would not support a convention on the law of treaties that would not contain a provision relating to the jus tractatuum of States. Finally, other delegations preferred to keep the (p. 110) first paragraph and to delete the second as possibly too dangerous and too intrusive in the domestic affairs of the States.9 7. A careful examination of the comments made during the Conference allow for some conclusions to be drawn on what truly influenced the final vote on draft Article 5. A proposal aiming at the deletion of paragraph 2 of Article 5 was put to a vote, but the Conference rejected this proposal by a margin of 46 against 39, with 8 abstentions. The Conference adopted the first paragraph of draft Article 5 by 85 votes against 17, with 22 abstentions.10 Therefore, the Conference maintained the two paragraphs of draft Article 5 during its first session. During the second session a new offensive was launched by those federal States hostile to the inclusion of paragraph 2 of draft Article 5 in the text of the future Convention.11 This offensive was successful. The deletion of the second paragraph was achieved by 66 votes against 28, with 13 abstentions. Its content was considered problematic in many aspects. On the other hand, the maintenance of the first paragraph, which concerned the capacity of sovereign States to conclude treaties, did not cause such debates. This first paragraph was adopted by 88 votes against 5, with 10 abstentions.12 Draft Article 5, with its unique paragraph, would later be renumbered as Article 6. 8. The fact that Article 6 was limited to the capacity of sovereign States to conclude treaties did not, however, negate the capacity for member States of federal unions to conclude treaties. Although the Vienna Convention on the Law of Treaties does not define the term ‘State’, comments of the ILC suggest that this term here had the same meaning as in the United Nations Charter, the Statute of the International Court of Justice, the Vienna Convention on Diplomatic Relations, and the Vienna Convention on Consular Relations.13 It was therefore limited to sovereign States only. Oddly, two non-sovereign States were parties to the aforementioned treaties: Belarus and Ukraine. According to the ILC, they seemed to have the capacity to conclude treaties.14 9. During the Conference, the delegations acknowledged that other subjects of international law had the capacity to conclude treaties. However, there was no consensus on the will to refer to such capacity within the text of the Convention. Concerning the rules applying to treaties between States and international organizations, the ILC drafted a separate convention which became the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations.15(p. 111) As for the other subjects of

international law (member States of federal unions, union of States, national liberation movements, etc.), the exercise and their jus tractatuum is governed, to refer to the terminology of the Vienna Convention itself, ‘by international law independently of the Convention’.16

Customary status 10. Concerning the capacity for sovereign States to conclude treaties, Article 6 of the Vienna Convention on the Law of Treaties is undeniably of a customary nature. Professor Ian Sinclair, one of the most proficient commentators on the Convention, is very clear on this matter: A good example is afforded by article 6 of the Convention providing that ‘every State possesses capacity to conclude treaties’. This is unquestionably expressive of a customary rule.17 11. And, as explained by Professor Sinclair, the division of the vote on this disposition should not modify this view.18 12. The Convention does not govern the capacity to conclude treaties for those subjects of international law that are not sovereign States. The source of the rules governing the treaties concluded by such subjects is dependent upon the parties to treaties. 13. Hence, treaties between States and international organizations or between international organizations are governed by the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations. Treaties concluded between States and international organizations or between international organizations that are not parties to the Vienna Convention of 1986 are governed by international customary law. Customary law should also govern matters which are not covered by this Convention.19 (p. 112) 14. Concerning members of federal unions, Professors Daillier and Pellet comment on the decision taken by of the United Nations Conference on the Law of Treaties in the following manner: ‘[I]t was not said that members of federal unions were not allowed to conclude treaties; in reality, the Conference only emphasised the internal character of the problem’.20 Members of federal unions which have the capacity to conclude international treaties under domestic law will thus be recognized as having the capacity to conclude treaties governed by international law. Since neither the Vienna Convention of 1969 nor the Vienna Convention of 1986 can apply to such treaties, they are governed by rules of international customary law. These rules are analogous to those of customary law applying to treaties between States and between States and international organizations. These rules were codified by the Vienna Convention of 1969 and the Vienna Convention of 1986. An examination of the practice of members of federal unions which detain a jus tractatuum should lead to such a conclusion.

B. The scope 15. Concerning the scope of Article 6 of the Vienna Convention on the Law of Treaties and the capacity to conclude treaties, three related issues should be addressed: the validity of treaties, the limitation on the capacity to conclude treaties, and the right to be a party to multilateral treaties.

The capacity to conclude treaties and their validity 16. The issue of the validity of treaties was distinctively addressed in Article 42 of the Vienna Convention on the Law of Treaties.21 The second Special Rapporteur on the Law of Treaties, Sir Gerald Fitzmaurice, proposed that there be an explicit link between the validity of treaties and the capacity to conclude treaties. Fitzmaurice considered that this notion of validity had three aspects: an essential (or substantive) aspect (which concerned the capacity for the parties to conclude treaties, the reality of the consent given by them, and the nature of the treaty), a formal aspect (a treaty should be valid from a formal viewpoint when it meets the necessary conditions for negotiation, conclusion, and entering into force), and a temporal aspect (which concerns the extension and the suspension of treaties).22 The Special Rapporteur was of the opinion that the capacity to conclude treaties related to the essential (or substantive) aspect of the notion of validity. The legal capacity to conclude such treaties was justified when the conditions of the substantive authority of the treaties was respected. In fact, Fitzmaurice drafted a lengthy article23 on this issue of the capacity to conclude treaties, accompanied with detailed comments.24 (p. 113) 17. The link between the notion of validity of treaties and the notion of the capacity to conclude treaties appeared later in another draft Article prepared by Special Rapporteur Fitzmaurice in 1959.25 However, the notion of validity of treaties was not envisaged in its relation with the capacity to conclude treaties by the last Special Rapporteur, Sir Humphrey Waldock.26 18. Some authors have nevertheless briefly commented on the relation between the validity of the treaties and the capacity to conclude treaties. According to Professors Daillier and Pellet: There has been little recourse to the capacity requirement in matters of validity of inter-State treaties [translation].[27] Two reasons are brought forward by the authors to explain this situation: On the one hand, international law does not provide for clear criteria regarding the quality of the State subject; on the other hand, the capacity of States to conclude treaties is plenary [translation].28 19. The views of Professors Dailler and Pellet on this issue deserve some comment. According to these authors, the first reason is that the criteria that must be met to be considered a

sovereign State according to international law are not obvious. Yet, these criteria are well established: a permanent population, a defined territory, a government, and the capacity to enter into relations with other States (sovereignty).29 Why then invoke the lack of clear conditions to explain that little has been made to put into relation the capacity to conclude treaties and the issue of their validity? The evolution of the international community and the birth of new States, based on the right of self-determination, and notably the right to decolonization, have undoubtedly made States very cautious in the application of these conditions. Yet, States born by secession, dissolution, or union which have demonstrated effectiveness as sovereign States have generally been recognized and the treaties concluded with these new States are not affected with problems of invalidity. Peoples which seek to become sovereign States and achieve effectiveness are generally not recognized by other States and are not parties to treaties that could be declared invalid on the basis that such States lack the capacity to conclude treaties. It is the exercise of jus tractatuum by a State that would therefore be susceptible of raising problems linked to the capacity to conclude treaties.30 20. The second reason is more convincing, seeing that the plenary capacity to conclude treaties presupposes that a State can conclude treaties on all matters. Having plenary jurisdiction, a State will rarely limit itself, in its own constitution, to conclude treaties in specific fields. However, this plenary exercise of its jus tractatuum can effectively be limited by rules of international and domestic law.

(p. 114) The capacity to conclude treaties and its limitations by international and internal law 21. Although the capacity for the State to conclude treaties is plenary, the State remains, in the exercise of its jurisdiction, submitted to international law.31 Therefore, the respect of international law and of its peremptory norms (jus cogens)32 is one of the clear limits to the exercise of the capacity to conclude a treaty. The capacity to conclude treaties not only implies that States can sidestep their international obligations. Moreover, an independent and sovereign State that commits itself not to conclude a specific treaty or treaties of a certain category could breach its obligations if this State in fact concludes such treaties,33 ‘but it does not follow that the treaty thus entered into lacks essential validity or falls to be treated as null and void’.34

References 22. As far as limitations related to domestic law are concerned: limitations imposed on the treaty-making power of a State by its own constitution or other domestic law provisions do not, in the international sense, create incapacity; nor are they, in that sense, limitations on the State's capacity.35 Therefore: action in excess of any such limitations will raise an issue, not of international treatymaking capacity, but of the effect of non-compliance with constitutional or other domestic requirements.36 23. The cases where there is lack of authority of the representatives to negotiate a treaty do not relate to the capacity to conclude treaties, but are addressed by rules concerning the invalidity of the treaties. On this matter, Articles 27, 46, and 47 of the Vienna Convention on the Law of Treaties offer concrete solutions to problems arising from the violation of provisions of internal law regarding competence to conclude treaties.37 24. The Vienna Convention on the Law of Treaties does not govern treaties concluded by members of federal unions. However, it is interesting to discuss the capacity for such members to conclude treaties within the context of international and domestic law. If draft Article 5(2) of the Commission on International Law relating to the capacity of members of a federal union to conclude treaties derives from customary law,38 international law therefore acknowledges such capacity to conclude treaties. This capacity is subject to (p. 115) the same limitations as those that are imposed on sovereign States and to the respect of peremptory norms of international law. The capacity of members of federal unions to conclude treaties is also limited by the Constitution itself, and notably by the division of powers enshrined in the Constitution. This division determines the matters on which the member of the federal union can exercise its jus tractatuum. 25. Constitutions of federal unions are very diverse on these matters. Some federal constitutions do not recognize the capacity of members, but several constitutions, notably those of Belgium, Germany, Switzerland, and Bosnia-Herzegovina,39 do so. In the case of Canada, Quebec claims such a capacity and argues that the Constitution of Canada should be interpreted in such a manner, whereas the federal government argues to the contrary.40

The capacity to conclude treaties and the right to become a party to multilateral treaties 26. As stated by the former president of the International Court of Justice, Lord McNair: the making of treaties is one of the oldest and most characteristic exercises of independence or sovereignty on the part of the State. In the case of the normal and fully independent State, the only limit placed upon the effectiveness of the exercise of this capacity is the necessity of compliance with the rules prescribed by international 41

law for the validity of treaties…41 27. On the other hand, even if the right to be a party to treaties, and especially to multilateral and general treaties, necessary implies the capacity to conclude treaties, these two notions must not be misunderstood. During the United Nations Conference on the law of treaties, this distinction was illustrated by the rejection of the draft Article 5bis according to which Every State has the right to participate in a multilateral treaty which codifies or progressively develops norms of general international law or the object or purpose of which are of interest to the international community of States as a whole.42 This rejection of draft Article 5bis suggested that the capacity to conclude a treaty is a subjective right of the State, since the right to be a party to a treaty is necessarily limited (p. 116) by the sovereignty of other States and by the mutual recognition of the common interest between the States to conclude a treaty. 28. Although such a right to participate in general multilateral treaties could be based on general principles (equality of sovereignty, non-discrimination, universalism, democratic principle, etc.), draft Article 5bis was not adopted by the Conference. Instead, a non-binding declaration on the universal participation, not to multilateral treaties but to the Vienna Convention on the Law of Treaties only, was adopted. This declaration reads as follows: The Conference of the Nations on the Law of Treaties: Convinced that the multilateral treaties which deal with the codification and progressive development of international law or the object or purposes of which are of the interest of the international community in its whole should be open to universal participation, Aware of the fact that articles 81 and 83 of the Vienna Convention on the Law of Treaties authorize the General Assembly to issue special invitations to States not members of the United Nations or of any of the specialized agencies or of the International Atomic Energy Agency, or parties of the Statute of the International Court of Justice, to become parties to the Convention,… 2. Expresses the hope that the States members of the United Nations will endeavour to achieve the object of this Declaration…; Could one argue today that Article 6 of the Vienna Convention on the Law of Treaties includes the recognition of the right to be a party to a treaty? As long as the object of a treaty concerns the international community of States as a whole, the universal participation of States seems to be favoured. In relation to conventional instruments concerning human rights and fundamental freedoms in particular, the practice of the United Nations provides many examples favouring universal participation

C. Conclusion 29. The question of the capacity to conclude treaties has raised important debates throughout the long process of codification and progressive development of the law of treaties. Since the adoption of the Vienna Convention on the Law of Treaties of 1969, several new States have acquired the capacity to conclude treaties. Today, 40 years after its adoption, 194 sovereign States can base their jus tractatuum on the customary rule codified in Article 6 of the Vienna Convention. 30. Many other subjects of international law can also invoke a jus tractatuum. As we have seen, some members of federal unions are granted such a capacity by provisions of federal constitutions. The European Union and most other international organizations detain a capacity to conclude treaties.43 In this regard, the Vienna Convention on the Law of Treaties remains an unfinished work and its content should be updated, or a new Vienna Convention be adopted, to set down the rules that apply to treaties concluded by unions of States as well as members of federal unions. *

DANIEL TURP

**

FRANÇOIS ROCH

References

Footnotes: 1 Since the adoption of the Briand-Kellogg Pact and in as much as the United Nations Charter's Art. 2, para. 4 prohibits the threat or use of armed force, except in cases where Ch. VII or Art. 51 on self-defence come into play, the concept of jus belli has become much less relevant. 2 Concerning the notion of a ‘subject’ of international law and the capacity to act within the international legal order, see the Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, p 174. According to Professor B. Cheng, the fact of being capable of having legal rights and duties in a system based on legal capacity does not provide for identical rights and duties. The rights and duties of a subject of law are not predetermined. They are actually defined by law. Cf M. Bedjaoui, International law: achievements and prospects, vol. I (Paris: Martinus Nijhoff/Unesco, 1991), pp 24–5. See also J. A. Barberis, ‘Nouvelles questions concernant la personnalité juridique internationale’, RCADI, 1983-I, vol. 179, pp 145–304; A. Patry, La capacité internationale des États: l'exercice du jus

tractatuum (Quebec : Sillery, Presses de l'Université du Québec, 1983), pp 11–21; and Ch. Rousseau, ‘La pos de qualité de sujet de droit international’, RGDIP, 1965, pp 775–844. 3 A. Patry, ibid, p 23. 4 YILC, 1962, vol. II, p 164. An argument based on the Vienna Convention on Diplomatic Relations was also made by the Italian representative M. Maresca during the first session of the United Nations Conference on the Law of Treaties. The Italian representative stated that the Vienna Conferences of 1961 and 1963 offered a very important precedent and stated that the introduction of a reference to jus legationis in the Conventions of 1961 and 1963 had been considered superfluous. According to his view, para. 5 was therefore not essential and could be removed without affecting the Convention. See A/CONF.39/11, Official Records, Summary Records, 1st session, p 65. 5 See the comments by the representatives of Austria, Finland, Israel, Japan, Sweden, the United Kingdom, and the United States in the Fourth Report on the Law of Treaties, A/CN.4/117 and Add.1 and 2, YILC, 1965, vol. II, pp 16–17. The representative of Japan proposed to delete para. 2 which did not add much to para. 1. He stated that para. 2 might be misleading since it did not deal with the importance for the other contracting party to recognize this capacity. The same was applicable to para. 3 which should also be deleted. The representative of the Swedish government viewed para. 1 as a general provision that actually did not bring anything new. He argued that by trying to develop this point, many difficulties could arise. It would thus be better for this legal development to be left to the practice of States and international organizations as well as legal precedents. 6 Ibid, p 18. 7 The scope of the Convention was redefined to refer exclusively to treaties concluded between States in both Art. 1 (‘The present Convention applies to treaties between States’) and Art. 2, para. 1(a) (‘ “treaty” means an international agreement concluded between States… and governed by international law…’: see YILC, 1966, pp 177–8. 8 See Official Records, Summary Records, 1st session, pp 59–68 and 148–50 and Official Records, Summary Records, 2nd session, pp 6–16. 9 See the comments of the delegations of Austria, New Zealand, Australia, Mexico, the Republic of Vietnam, Ceylon, India, the United Kingdom, Greece, Italy, the United States, Argentina, Nigeria, and Ethiopia: Official Records, Summary Records, 1st session, pp 60–8. 10 Ibid, pp 162–3. 11 The most hostile delegations were those of Australia, Canada, India, the United States, Mexico, and Brazil. See the comments of their representatives in Official Records, Summary Records, 2nd session, pp 6–13. 12 On the vote on draft Art. 5, see Official Records, Summary Records, 2nd session, p 15. 13 Ibid. 14 YILC, 1962, p 37. The Commission furthermore adds that: The phrase ‘other subjects of international law’ is designed to provide for treaties concluded by: (a) international organizations, (b) the Holy See, which enters into treaties on the same basis as States, and (c) other international entities, such as insurgents, which may in some circumstances enter into treaties. (ibid, p 163) Concerning the Holy See's capacity to conclude treaties, see S. Bastid, Les traités dans la vie internationale: conclusion et effets (Paris: Economica, 1985), p 85. 15 A/CONF.129–15. The Vienna Convention of 1986 contains an Art. 6 which is similar in content to Art. 6 of the Vienna Convention on the Law of Treaties. See infra the commentary on Art. 6 of the 1986 Convention. 16 Vienna Convention on the Law of Treaties, Art. 3. This Article reads as follows: The fact that the present Convention does not apply to international agreements concluded between States and other subjects of international law or between such other subjects of international law, or to international agreements not in written form, shall not affect: (a) the legal force of such agreements; (b) the application to them of any of the rules set forth in the present Convention to which they would be subject under international law independently of the Convention; (c) the application of the Convention to the relations of States as between themselves under international agreements to which other subjects of international law are also parties. For a detailed examination of jus tractatuum immediately before the adoption of the Convention, see A. McNair, The Law of Treaties (Oxford: Clarendon Press, 1961), pp 35–57. McNair also examines the international capacity of the following entities: Fully Sovereign States, including all the Sovereign States forming the Commonwealth of Nations, the Holy See, the Federal States, Confederations of States, States in Personal Union, State in Real Union, Dependant States, Protected States, Vassal States, Permanently Neutralized States, International Organizations of States, Native Chiefs and Peoples. On Art. 3, see also the commentary on this Article supra. 17 See I. Sinclair, The Vienna Convention on the Law of Treaties (2nd edn, Manchester: Manchester University Press, 1984), p 21, emphasis added. 18 Ibid:

Yet Article 6 was finally adopted by the Vienna Conference by a divided vote of eightyeight to five, with ten abstentions, the reason being that a controversial second paragraph dealing with the capacity of States members of a federal union to conclude treaties subject to certain conditions had previously been deleted. 19 See the commentary on Art. 6 of the 1986 Convention infra. 20 See Nguyen Quoc Dinh, A. Pellet, and P. Daillier, Droit international public (7th edn, Paris: LGDJ, 2002), p 190, para. 116. 21 See supra. 22 On the three aspects of the notion of validity of treaties, see Sir G. G. Fitzmaurice, Third Report on the Law of Treaties, A/CN4/115, reproduced in YILC, 1958, vol. II, pp 21–47. 23 See draft Art. 8 and its seven paras, ibid, pp 24–5. 24 Ibid, pp 32–3. 25 See YILC, 1959, vol. II, pp 99–100. 26 See H. Waldock, Fourth Report on the Law of Treaties, YILC, 1965, vol. II, p 18. Not only did Sir Humprey Waldock not favour such a link, he also proposed the deletion of the Article on the the capacity to conclude treaties, ibid. 27 See Nguyen Quoc Dinh, A. Pellet, and P. Daillier, supra n 20, p 191, para. 116. 28 Ibid. 29 See the 1933 Montevideo Convention on the Rights and Duties of States, 26 December 1933, LNTS, vol. 165, p 19. 30 Concerning the participation of the Republika Srpska in the Paris-Dayton Agreement of 1995, see the comments of Nguyen Quoc Dinh, A. Pellet, and P. Daillier, supra n 20, p 191, para. 116. On the authorities competent to bind a State, see Bastid, supra n 14, p 86. 31 See the comments of the Permanent Court of International Justice in SS Wimbledon, PCIJ, 1923, Series A, no. 1, p 25: ‘The Court declines to see in the conclusion of any Treaty by which a State undertakes to perform or refrain from performing a particular act an abandonment of its sovereignty’. See also P. Reuter, Introduction au droit des traités (Paris: Armand Colin, 1972), p 45. 32 On peremptory norms, see Art. 53 of the Vienna Convention on the Law of Treaties and the commentary on this Article, infra. 33 Therefore, do member States of the European Union accept that their capacity to conclude treaties is limited by the capacity given to the European Union to conclude treaties in its own right? On that matter, see J. Rideau, Droit institutionnel de l'Union et des Communautés européennes (Paris: LGDJ, 1994), pp 152–4 and A. Barav and C. Philip, Dictionnaire juridique des Communautés européennes (Paris: PUF, 1993), pp 12–19. 34 See Sir G. G. Fitzmaurice, Third Report on the Law of Treaties, YILC, 1958, vol. II, p 25. 35 Ibid. 36 Ibid. 37 For more details, see infra, the commentaries on these Articles. 38 See A. McNair, supra n 16, pp 32–8. The author underlines that the practice of federal unions is as diverse as the various forms of federalism. The United States, Canada, and Australia for instance agree that it is the federal State that detains an exclusive capacity to conclude treaties. On the other hand, Switzerland, Germany, and the USSR all agreed that the constitutional norms allowed federated entities to conclude treaties. 39 On these constitutions and on other federal constitutions, see O. J. Lissitzyn, ‘Territorial Entities other than Independent States in the Law of Treaties’, RCADI, 1968-III, vol. 125, p 1; Y. Lejeune, Le statut international des collectivités fédérées (Paris: LGDJ, 1984); W. G. Ganshof van der Meersch and R. Ergec, ‘Les relations extérieures des États à système constitutionnel régional ou fédéral’, RDIDC, 1986, p 297. See also Ph. Gautier, ‘Le régime des traités dans l’État fédéral—La conclusion des traités', RBDI, 1994, p 31 and S. Yee, The New Constitution of Bosnia and Herzegovina, EJIL, 1996, p 176. 40 On the situation in Quebec and Canada, see J.-Y. Morin, F. Rigaldies, and D. Turp, Droit international Public: notes et documents (3rd edn, Montreal: Thémis, 1997), pp 1–16 and 127– 46; D. Turp, ‘L'arrêt Bazylo c Collins et la nature juridique des ententes internationales du Québec’, Revue québécoise de droit internaitonal, 1988, p 345; J.-M. Arbour and G. Parent, Droit international public (5th edn, Montreal: Éditions Yvon Blais, 2006), pp 174–7. See also the Act Respecting the Ministery of International Relations, R.S.Q., c. M-25.1.1, Art 19. 41 See A. McNair, supra n 16, pp 35–6. See also A. Aust, Modern Treaty Law and Practice (Cambridge: Cambridge University Press, 2007), p 58. 42 Draft Art. 5bis was sponsored by 13 delegations and provoked a heated debate which almost led to the collapse of the Conference. See Official Records, Summary Records, 2nd session, A/CONF.39/11/Add.1, p 240. On this debate, see also M. E. Villiger, Customary International Law and Treaties (Dordrecht: Martinus Nijhoff, 1985), pp 94–5. 43 For the EU, such capacity is now enshrined in Arts 8 and 37 of the Treaty of the European Union and Arts 216–219 of the Treaty of the Functioning of the European Union. * Professor, Faculty of Law, Université de Montréal, Canada. ** Professor, Faculty of Law and Political Science, Université du Québec à Montréal, Canada.

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Volume I, Part II Conclusion and Entry into Force of Treaties, s.1 Conclusion of Treaties, Art.6 1986 Vienna Convention Nicolas Levrat From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Treaties, conclusion — Customary international law

(p. 117) 1986 Vienna Convention Article 6 Capacity of international organizations to conclude treaties The capacity of an international organization to conclude treaties is governed by the rules of that organization. A. General characteristics 117 Object and purpose 117 The debate on the source of the capacity of international organizations to conclude treaties and the chosen solution 118 Customary status 119 B. Scope of the Article 120 The notion of treaty 120 Importance of the reference to the rules of the organization 121 C. Conclusion 123

A. General characteristics Object and purpose 1. The object of Article 6 of the 1986 Vienna Convention is to define in general terms the capacity of international organizations to conclude treaties, while taking into consideration the specificities of each organization. The main issue at stake concerns the case when the treaty instituting an international organization contains no explicit rule regarding the matter. Another substantial issue concerns the case when the developments of the activities of an international organization, while remaining within the limits set forth by its constitutive charter, lead it to conclude a treaty in a field for which no explicit competence exists. 2. If Articles 6 of both Vienna Conventions have the same object1 and manage to set out a rule on the capacity to conclude treaties in concise terms, ‘the formal parallel between Article 6… and the corresponding provision of the [1969] Vienna Convention was less important than the inherent contrast between them’.2 As the Special Rapporteur noted: for whereas States were equal from the point of view of international law and all, without exception, had the same capacity to conclude treaties, the same was not true of international organizations, (p. 118) which were creations resulting from a discretionary act by States and, consequently, were highly individual entities characterized by a fundamental inequality…3 In other words, ‘international organizations differ not only from States but also from one another’.4 Thus, contrary to the capacity to conclude treaties which is the same for all States, variations may exist in the capacity to conclude treaties between different international organizations. This explains why the formal parallel with the 1969 Convention could only be limited.5 3. In practice, the ILC had to meet the challenge of proposing a general rule concerning the capacity of international organizations to conclude treaties in order to accomplish its task of codifying international law, while making sure that such general rule would at the same time reflect the diversity of situations stemming from each international organization's constitutive treaty. Further, the Commission's efforts were guided by the will to avoid classifying international organizations as regard their capacity to conclude treaties further than the definition laid down by Article 2(1)(i) of the Convention.6 Thus, under the appearance of concise and simple wording, this Article embodies subtle compromises.

The debate on the source of the capacity of international organizations to conclude treaties and the chosen solution 4. There were two schools of thought on this issue, within the ILC as well as during the diplomatic Conference. The first one considered that such capacity belonged inherently to any international organization; the second argued that the capacity of international organizations proceeded from a delegation by member States, either through the constitutive treaty or through later acts.7 In order to avoid fruitless theoretical debates and to reach a compromise, the Special Rapporteur proposed a wording for this Article which ‘is compatible both with the concept of general international law as the basis of international organization's capacity and with the opposite concept’.8 5. In practice, however, the compromise is grounded in the idea that general international law defines the capacity of international organizations to conclude treaties, (p. 119) notwithstanding the fact that such definition proceeds from a reference to the specific rules of each international organization. As the Special Rapporteur expressed it: while it was true that it was the relevant rules of each organization that conferred treaty-making capacity upon it, it was equally true that, if the law peculiar to each organization had that effect, it was by virtue of a general rule of international law 9

authorizing it.9 Actually, according to the Special Rapporteur, with the chosen wording for Article 6, ‘it is obvious that a general rule of this kind merely expressed the idea that the capacity of each organization is determined individually by the terms of its own statutes’.10 Another way of understanding this relationship between general international law and the rules of a given international organization was expressed by a member of the ILC in the following words: ‘[t]he issue was not the actual principle of the capacity of international organizations to conclude treaties, but the extent of that capacity’.11 6. The apparently tautological but simple wording of Article 6 thus embodies a genuine and substantial theoretical debate, while meeting the logical requirement of cross-references to the rules of each international organization by general international law.

Customary status 7. If the practice of treaties concluded by international organizations is not as old as the one relating to treaties concluded by States, the capacity of international organizations to take part in the production of conventional rules of international law is a generally recognized principle of international law that the Special Rapporteur has codified. 8. The recognition of such principle is clearly stated in the International Court of Justice (ICJ) Advisory Opinion of 2 April 1949, in which the Court questioned the capacity of the United Nations to present an international claim. Taking stock of recent developments of relevant practice,12 the Court concluded that: the Organization was intended to exercise and enjoy, and is in fact exercising and enjoying, functions and rights which can only be explained on the basis of the possession of a large measure of international personality and the capacity to operate upon an international plane.13 (p. 120) 9. The Special Rapporteur underlined in his First Report that a very wide and important body of writings recognized for international organizations the capacity to conclude treaties.14 In parallel, the conclusion of such agreements had been developing rapidly; in 1969, the annual report of the UN General Assembly's Sixth Committee already noted that international organizations were parties to about 20 per cent of existing multilateral treaties.15 As regards the development of practice, it is also worth noting the important role played by the European Court of Justice, which developed during the 1970s a progressive and farreaching case law on the implicit capacity of the European Community to conclude international agreements.16

References 10. One of the major difficulties of the subject matter precisely derives from the situation that the rules actually lay down a series of rules specific to each international organization, as underlined supra. It is thus difficult to distinguish between the evolution of the practice of a specific international organization and the emergence of rules of global significance.17 As the Special Rapporteur was also fully aware, it had to be further taken into account that the issue was still highly evolutional; Paul Reuter was thus careful to avoid the risk of blocking future developments through a rule which, due to excessive precision, would have limited potential evolution.18 11. One may thus conclude from the observations supra that the customary nature of the rule is undisputed. The scope of such customary rule, however, is not uniform, since the wording itself refers to elements specific to each international organization, elements which include at least the constitutive treaty, but in most cases also refer to the subsequent practice of organs of the organization.

B. Scope of the Article The notion of treaty 12. On several occasions the Special Rapporteur underlined that different categories of agreements concluded by international organizations had shown distinct developments (p. 121) of the latter's practice in that area. He thus pointed out a distinction between ‘agreements relating to the administrative functioning of the organization’ and ‘agreements on its operational activities’.19 The major difficulty, however, stemmed out of the issue of participation of international organizations in multilateral treaties,20 with special complication for the case where an organization would participate in a treaty by which some of its members would decline to be bound.21 This last issue may shed light on the two categories that the Special Rapporteur proposed to distinguish: the first category would regroup mere administrative documents, with little or no political significance for the member States of the organization, while the second category, linked to the realization of the goal of the organization, may have a genuine political dimension, and thus be more problematic for member States. 13. The Special Rapporteur therefore wondered about a possible difference as regards the capacity of international organizations in respect of these two categories. As far as the author of the present comment is concerned, a serious interrogation exists regarding the political insignificance of ‘agreements relating to the administrative functioning of the organization’, since numerous ‘administrative regulations’ within international organizations have in the past

been politicized by diplomats. This issue, however, remained purely theoretical, these attempts at categorizing treaties and the related questioning having been quickly abandoned, allowing the debates within the ILC to focus on the other issues raised by the wording of this Article. Therefore, the treaties referred to in Article 6 of the 1986 Convention strictly correspond to these covered by the definition given by Article 2(1)(a) of this Convention.22

References

Importance of the reference to the rules of the organization 14. The debate within the ILC on this issue also proved to be lively. The principle issue of such cross-reference will not be reiterated,23 simply the meaning of the phrase ‘rules of that organization’. 15. It must, however, be noted that the wording proposed by the Commission in its final draft was referring to ‘relevant rules of that organization’. Within the ILC, only (p. 122) Mr Ramangasoavina briefly raised doubts about such wording, asking especially what should be understood to be ‘relevant’ rules.24 In its written observations, the United Kingdom proposed the suppression of the word ‘relevant’;25 such proposal was supported by numerous delegations at the 1986 Diplomatic Conference. The simplified wording was thus accepted without further debate by the Drafting Committee and then by the plenary. There was no substantial issue behind this change of wording, but one must be aware that debate on the significance and scope of this reference was held within the ILC regarding ‘the relevant rules of that organization’, and not the simplified version of the provision which only appeared in 1986. 16. According to the Special Rapporteur, such wording ‘obviously includes the constituent instrument of the organization and the various unilateral regulations which the organization draws up if it has obtained authority to do so’.26 P. Reuter nevertheless feared that such wording would prove overly restrictive, depriving international organizations of their capacity to develop and maintain international relations through new developments of their practice.27 While the reference to ‘relevant rules’ would undoubtedly cover ‘established practices’,28 the Special Rapporteur expressly wished to extend further the meaning of such wording; thus, following a thorough study on the role of practice in the definition of the extent of the capacity of international organizations to conclude international treaties. Paul Reuter wrote in his Third Report: it must be acknowledged without hesitation that the expression ‘the relevant rules of each organization’ covers practices which are not yet established but are liable to become so. This expression basically reserves the constitutional regime of each organization: it is this regime, and not the draft Articles, which will determine the scope of the ‘practice’.29 17. Such broad and open-ended understanding of the reference to each organization's regime was generally accepted within the ILC, although some members did express the wish that the meaning of such wording be more explicitly defined.30 The decision to uphold the wording ‘the relevant rules of that organization’ however was interpreted as constituting a cross-reference to the definition laid down by Article 2(1)(j) according to which ‘“rules of the organization” means, in particular, the constituent instrument, decisions and resolutions adopted in accordance with them, and (p. 123) established practice of the organization’, which is then of more limited scope than the Special Rapporteur intended.31 18. Some delegations at the Diplomatic Conference nevertheless considered the proposed formula too far-reaching. Thus Mexico tabled an amendment to the ILC draft with the view to replacing the reference to ‘relevant rules of that organization’ by the obviously more restrictive wording: ‘[i]nternational Organizations shall have the capacity to conclude treaties with States or with other international organizations only as determined by their constituent instruments and other rules’.32 Debates led the plenary to oppose this proposal, both being considered too restrictive and confusing.33 19. One may thus consider that the reference made to ‘the rule of that organization’ refers at least to the elements mentioned in Article 2(1)(j) of the 1986 Convention including, when relevant—especially if the practice of a given organization is flexible and developing as regards the capacity of that organization to enter into international agreements—‘emerging practices’ according to the rules of that organization.

C. Conclusion 20. The draft proposed by the ILC was adopted at the 1986 Conference with the single simplification consisting in the suppression of the word ‘relevant’ before ‘rules of that organization’. The compromise it embodies thus appears to be approved both by States and the legal scholars' community.34 21. Developments of the practice of international organizations regarding the conclusion of treaties since the adoption of the 1986 Convention have not raised new issues in respect of the capacity of international organizations to conclude treaties; neither in other international organizations (see eg the practice at GATT/WTO or the Council of Europe, both cases in which the European Community negotiated and became party to international agreements of substantial significance) nor in multilateral forums or in the negotiation of specific bilateral agreements. One may even observe that the evolution of the capacity of international organizations based on the reference to the rules of that organization did not keep on expanding, but rather seems to have reached a point of equilibrium between international

organizations and their member States. Thus, for example, within the usually very progressive European Union, the European Court of Justice has shown restraint in the recognition of implicit competences to the European Community since the adoption of the 1986 Convention.35 On a parallel path, the International Court (p. 124) of Justice limited the scope of the concept of implicit powers of international organizations, if this did not concern their capacity to conclude treaties.36 Thus, the wording of Article 6 and the compromises it rests upon remain up to date and relevant as regards the needs and recent practice of international organizations. *

NICOLAS LEVRAT

References

Footnotes: 1 Considering that the 1986 Vienna Convention concerns both treaties between international organizations and treaties between international organizations and States, the host country to the 1986 Diplomatic Conference proposed including in a separate paragraph of Art. 6 the wording of the equivalent provision of the 1969 Convention on the capacity of States to conclude treaties. (See Official Records, Summary Records, vol. II, pp 66–7.) For a view of the debate about this proposal, see Official Records, CRA, 6th session (24 February 1986), vol. I, pp 64–71. Austria finally withdrew its proposal, its representative noting that ‘a number of delegations consider the Austrian amendment useless and will rather follow the ILC proposal’ (ibid, p 71). 2 Debates of the ILC, 1277th session, 13 June 1974, intervention by Mr Quentin Baxter, YILC, 1974, vol. I, p 150. 3 Presentation of draft Art. 6 by the Special Rapporteur, 1275th session, 11 June 1974, YILC, 1974, vol. I, p 134. 4 Report of the ILC on the work of its 34th session, YILC, 1982, vol. II, Part Two, p 13. 5 See on that specific issue, G. Gaja, ‘A “New” Vienna Convention on Treaties between States and International Organizations or between International Organizations: A Critical Comment’, BYBIL, 1987, p 261. 6 First Report on the question of treaties concluded between States and international organizations or between two or more international organizations by Mr Paul Reuter, Special Rapporteur (A/CN.4/258), YILC, 1972, vol. II, p 179, para. 26, and p 196. Also see the Report of the ILC to the General Assembly on the work of its 33rd session, YILC, 1981, vol. II, Part Two, p 127. It was, however, in his Second Report that the Special Rapporteur expressed the most significant reservations on the issue (YILC, 1973, vol. II, pp 81–3), even considering appropriate, to solve the difficulties raised by this question, to renounce any Article dealing with the capacity of international organizations to conclude treaties (ibid, p 82, para. 40). 7 This debate, which will live through the discussion of this Article (and also several others) within the ILC, is very neatly summarized in the Report of the ILC on the work of its 34th session, YILC, 1982, vol. II, Part Two, p 13, paras 42–3. It is also worth underlining that when the ILC debated this issue in 1962, the preference expressed by the Special Rapporteur at the time was clearly in favour of rejecting the concept of a right inherent to the existence of any international organization and favouring a competence expressly stemming from the constitutive treaty of the organization (see for an analysis of this position the First Report of Paul Reuter, YILC, 1972, vol. II, pp 178–82, paras 25–35). 8 Report of the ILC on the work of its 33rd session, YILC, 1981, vol. II, Part Two, p 127. 9 YILC, 1974, vol. I, p 135, para. 39. The Special Rapporteur admited that the wording could have been more explicit: Nevertheless, it will perhaps be regretted that the proposed Article 6, while stating a precise rule, remains silent on the role of general international law in the very establishment of the capacity of international organizations to conclude treaties (Third Report, YILC, 1974, vol. II, Part One, p 15, para. 20). To circumvent such a shortcoming, he even proposed an alternate wording to Art. 6, which read as follows: The extent of the capacity of international organizations to conclude treaties, a capacity acknowledged in principle by international law, is determined by the relevant rules of each organization. (ibid) The ILC did not accept this formula. 10 YILC, 1973, vol. II, p 83, para. 50. 11 Mr Bilge, YILC, 1974, vol. I, p 149, para. 45. 12 See the First Report on the question of treaties concluded between States and international organizations or between two or more international organizations, YILC, 1972, vol. II, pp 173–5. The Special Rapporteur even went as far as writing: ‘But of course it is since 1945 that an increasing number of such agreements have been concluded—it might almost be called an “agreement explosion” ’ (p 173, para. 6). 13 ‘Reparation for injuries suffered in the service of the United Nations, Advisory Opinion’, ICJ Reports 1949, p 179, emphasis added. 14 See the First Report, YILC, 1972, vol. II, pp 175–6, esp. para. 16, mentioning among the

leading authors to recognize such capacity, Fiore (1911), Basdevant (1926), Anzilotti (translation of 1929), Rousseau (1944), and Jessup (1948). 15 Ibid, p 173. 16 The most famous and path-setting case being the 31 March 1971 decision in Commission v Council of the European Economic Community (ERTA) [1971] ECR 263. The influence of the specific EC practice and case law is not explicitly acknowledged by the Special Rapporteur or any member of the ILC (see, however, the Third Report of P. Reuter, YILC, 1974, vol. II, Part One, notes 58 (p 146), 65 (p 148), 70 and 71 (p 149), and 84 (p 151)). Despite the absence of clear evidence, such potential implicit influence was denounced by some governments in their comments of the draft Articles; see eg the observations by the Czechoslovak Socialist Republic in Report of the ILC on the work of its 33rd session, YILC, 1981, vol. II, Part Two, p 184. 17 See on this issue the debates that took place within the ILC in 1962, YILC, 1962, vol. I, pp 193–4 and 241–3, as well as the First Report on the Law of Treaties by Sir Humphrey Waldock, YILC, 1962, vol. II, pp 36 and 37. 18 See eg the First Report, YILC, 1972, p 193, para. 70 and p 199, para. 89, in which the Special Rapporteur expressed this thought in the following words: If it were considered that for the treaties of international organizations it is necessary to extend the present period and maintain the great freedom of action of the international organizations, even at the risk of some uncertainty and confusion, the work of the Commission would have to be arranged accordingly. While retaining the final objective of the proposal for draft Articles, with all the characteristics of legislative work, the Commission would have to accept that such a draft would be merely a guide for subsequent developments. 19 See mainly, loc. cit., pp 174–5, paras 8–12. 20 See for a good presentation of the element of the discussion at that time, A. Koers, ‘Participation of the EEC in the new Law of the Sea Convention’, AJIL, 1979, pp 426–43. 21 First Report, YILC, 1972, vol. II, pp 193–4, paras 69–75. See on that same issue the interesting observations by P.-H. Imbert, ‘Le consentement des Etats en droit international. Réflexions à partir d'un cas pratique concernant la participation de la CEE aux traités du Conseil de l'Europe’, RGDIP, 1985, pp 353–82. 22 Confirming the absence of such categorization, see the decision of 9 August 1994 by the ECJ in Case C-327/91 France v Commission [1994] ECR I-3666. In its application, France was asking for the nullification of an ‘agreement’ concluded by the European Commision in infringement of the EC constitutive provisions. In its defence, the Commission argued that the general rule concerning the conclusion of treaties by the EC embodied in Art. 228 EC Treaty should not be considered relevant as regard the agreement under consideration, the document being a mere ‘administrative agreement’ (para. 21), a type of agreement for which the capacity of the EC would not be based on the rule of Art. 228, the latter only being relevant for proper international treaties, that could entail the liability of the EC or its member States. The European Court categorically rejected such argument in its ruling, considering that such agreement falls squarely within the definition of an international agreement concluded between an international organization and a State, within the meaning of Article 2(1)(a)(i) of the Vienna Convention of 21 March 1986 on the Law of Treaties between States and International Organizations or between International Organizations. (para. 25). 23 For the debate on that issue and the justification of the choice made by the drafters, see supra paras 4 ff. 24 1277th session, 13 June 1974, YILC, 1974, vol. I, p 146, para. 15. Mr Ramangasoavina's concern appears to have been prompted mainly by the risk of possible diverging interpretations between the linguistic versions. 25 YILC, 1982, vol. II, Part Two, p 134. 26 YILC, 1972, vol. II, p 198, para. 89. 27 One must remember that in its Advisory Opinion of 1949, the ICJ had stated that ‘the rights and duties of an entity such as the Organization must depend upon its purposes and functions as specified or implied in its constituent documents and developed in practice’ (loc. cit., p 180). 28 During the UN Conference on the Law of Treaties (1st session), Sir Humphrey Waldock declared on that subject matter: With regard to the established practices of international organizations, the International Law Commission had considered that the words ‘any relevant rules’ covered that aspect of the matter. That phrase was intended to include both rules laid down in the constituent instrument and rules established in the practice of the organization as binding. (Official Records, CRA, 1st session, 10th meeting, p 57, para. 40) The wording adopted for Art. 2(1)(j) of the 1986 Convention probably follows the same intent. 29 YILC, 1974, vol. II, Part One, p 152, para. 28. Also see in that same Report, p 151, para. 26. 30 See eg Mr Ustor, 1277th session, 13 June 1974, YILC, 1974, vol. I, p 147, para. 28. 31 For critical comment on this cross-reference to ‘established practice’ and the limitations it

imposes, see G. Gaja, supra n 5, p 262. 32 A/CONF.129/C.1/L.7 in Report of the Committee of the Whole, A/CONF.129/13, Official Records, Official Records of the Conference, p 67. 33 Official Records, CRA, 1st session, 7th meeting, p 66. 34 See, however, the strong opposition to this wording express by F. Seyersted in his article ‘The Treaty-Making Capacity of Intergovernmental Organizations: Article 6 of the International Law Commission's Draft Article on the Law of Treaties between States and International Organizations or between International Organizations’, ÖZöRV, 1983, pp 281–7. 35 Following the path-setting ERTA case of 1971 (supra n 16), the ECJ had been developing and reinforcing the implicit powers case law regarding external relations of the EC, in cases such as Kramer & al. (Joined Cases 3, 4, and 6/76 [1976] ECR 741). However Opinions 1/94 of 15 November 1994 (ECR I-5267), 2/92 of 24 March 1995 (ECR I-521), and 2/94 of 28 March 1996 (ECR I-1763) notably restricted the reach of the criteria used in pre-existing case law as regard implicit capacity of the EC to conclude international treaties. 36 See the ICJ Advisory Opinion, Legality of the Use by a State of Nuclear Weapons in Armed Conflict, ICJ Reports 1996, p 66, esp. paras 11 and 12 (p 72) and paras 18–28 (pp 74–82). Paragraph 25 of this Opinion states: The Court need hardly point out that international organizations are subjects of international law which do not, unlike States, possess a general competence. International organizations are governed by the ‘principle of speciality’, that is to say, they are invested by States which create them with powers, the limits of which are function of the common interest whose promotion those States entrust to them.…The powers conferred on international organizations are normally the subject of an express statement in their constituent instruments. Nevertheless, the necessities of international life may point to the need for organizations, in order to achieve their objectives, to possess subsidiary powers which govern their activities. It is generally accepted that international organizations can exercise such powers, known as ‘implied’ powers.…In the opinion of the Court, to ascribe to the WHO the competence to address the legality of the use of nuclear weapons—even in view of their health and environmental effects—would be tantamount to disregarding the principle of speciality; for such competence could not be deemed a necessary implication of the Constitution of the Organization in the light of the purposes assigned to it by its member States. * Professor of International and European Law, University of Geneva; Director of the European Institute of the University of Geneva; Associate member of the International Law Centre of the Université libre de Bruxelles (ULB), Brussels.

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Volume I, Part II Conclusion and Entry into Force of Treaties, s.1 Conclusion of Treaties, Art.7 1969 Vienna Convention Peter Kovacs From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — International organizations — Sources, foundations and principles of international law — Diplomacy and consular relations — Treaties, conclusion — Sovereignty — Customary international law — Opinio juris — Travaux préparatoires — Heads of state and other senior officials — Diplomatic missions — Diplomatic relations

(p. 125) 1969 Vienna Convention 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. A. General characteristics 126 Object and purpose 126 Customary status 127 B. Problems related to the preparation and verification of ‘full powers’ 129 Title and contents of the mandate 129 Should a reference to negotiation be included in the text of the ‘powers’? 131 The preparatory works of the ILC 131 The Conference of 1969 132 The control of ‘powers’ 133 C. The capacity to act without ‘full powers’: ex officio representatives of States 135 Heads of States and governments, ministers of foreign affairs, and the eventual restrictions of their competences 135 The work of the ILC 136 The Vienna Conference 136 Heads of diplomatic missions 138 The work of the ILC 138 The Vienna Conference 139 The ‘implied powers’ and the importance of circumstances 140 The work of the ILC 140 The Vienna Conference 141 D. Who should bear the risk of negotiating with an agent not in possession of ‘full powers’? 143

Bibliography Blix, H., Treaty-making power (London, New York: Stevens & Sons, Praeger, 1960) —— and Emerson, J. H., The Treaty Maker's Handbook (New York: Oceana, 1973) (p. 126) Jones, M., Full Powers and Ratification (Cambridge: Cambridge University Press, 1946) Polakiewicz, J., Treaty-making in the Council of Europe (Strasbourg: Council of Europe, 1999)

A. General characteristics Object and purpose 1. Article 7 aims to cover two sides of the phenomenon called ‘treaty-making power’: after having declared the rules concerning persons empowered by the sovereign to act in its name

during the negotiation and conclusion of a treaty, it goes on to deal with individuals mandated ex officio by international law to act without being obliged to show any kind of attestation. It is worth noting that issues regarding the existence of ‘powers’, mandates, delegacy, and attestation also appear either explicitly or implicitly in other Articles of the Convention; namely under paragraphs 1(c) of Article 2, 1(c) of Article 12, 1(d) of Article 14, but also in Articles 46 and 47.1 2. The sovereign State, once the exclusive, today ‘only’ the most important subject of the international community, is a social phenomenon, one that can only act through actual people when exercising its competences. In historic, medieval, feudal, as well as in absolute monarchies, the sovereigns negotiated and signed their treaties in personam. Literature tends to point to the Holy Alliance, negotiated and formulated by Tsar Alexander, or the peace of Villafranca, between François Joseph and Napoleon III as the last examples of the personal exercise of the monarchical competence. 3. As the number of treaties increased, they became more complex and their elaboration grew lengthier. Thus the participation of close collaborators became unavoidable. The initially small circle of negotiators grew larger and it came to include close confidants of monarchs, facilitating their tasks. The members of a royal delegation were entitled to go on with talks— without written mandates—also when the monarchs left the room and did not want to participate in personam. 4. The situation was different in cases when the sovereign was ready to entrust the whole negotiations to an intimate: on the one hand, the other party had a legitimate interest in checking whether the negotiator was transmitting the sovereign's true will; on the other hand, the monarch had reserved the right to control his subject's activity. 5. This double need became much more nuanced with the settlement of permanent diplomatic missions and the use of the itinerary diplomacy (the equivalent of ambassadorial work today). Since the corresponding parties had to be sure that envoys sent by the sovereign were indeed genuine, special techniques concerning the verification of authenticity and extent of mandates were adopted. The birth and rise of republican regimes, the growing strength of parliamentary democracy, as well as the spread of professional diplomacy contributed to further elaboration of this institution. 6. The purpose (or the raison d'être) of the institution of ‘full powers’ is to ensure the ability of the parties to monitor the existence and scope of mandates entrusted to persons acting in the name of the other treaty-making power. As the ILC put it: other States have a legitimate interest in the matter to the extent of being entitled to reassure themselves that a representative with whom they are dealing has authority from his State to carry out the transaction in question.2 (p. 127) It is of utmost importance to have the mandates checked in time as trespassing a mandate can give rise to nullity of the treaty. 7. In dealing with this issue, Article 7 focuses on two aspects of the question: first, it enumerates the basic rules concerning ‘full powers’ then it covers the capacity to act of those agents whose representativity is presumed according to their functions.

Customary status 8. The customary character of the institution of ‘powers’ and ‘full powers’ has been emphasized in the works of the ILC,3 the Diplomatic Conference,4 and of scholars.5 9. In his famous book De jure belli ac pacis, Grotius analysed the issue of ‘powers’ in the context of general and immemorial custom.6 10. According to Hans Blix, one can presume that the involvement of representatives in the conclusion of treaties is in fact as old as international law itself.7 Still, until the seventeenth century, no comprehensive theory had emerged concerning the role of these representatives during the negotiation and the conclusion of international treaties.8 11. It is worth noting that the ILC has also relied upon a famous jurisprudential precedent: the case of the Legal Status of Eastern Greenland.9 Even though this case does not focus directly on the concept of treaty-making power, it does point to unilateral acts of public international law. The ILC saw this as the jurisprudential anchorage of the theory of full powers: It is inherent in the office and function of Heads of State, Heads of Government and Foreign Ministers that they possess authority both to negotiate a treaty and to sign, ratify, accede to or accept a treaty on behalf of their State. In the case of Foreign Ministers, the inherent authority of the Minister to bind his Government in negotiations with a foreign State was expressly recognized by the Permanent Court of International Justice in the Eastern Greenland case in connexion with an oral undertaking by the Foreign Minister of Norway, commonly referred to as the ‘Ihlen Declaration’.10

References 12. In fact, it may be said that there is a general agreement of views concerning the contents of this rule and of opinio juris sive necessitatis. However, it must be noted that (p. 128) while Paul Reuter classified Article 7 in toto in the framework of the pure codification,11 Sir Humphrey Waldock was of the opinion that some elements of the provision, and especially those concerned with the practice of international organizations, could only be accepted as 12

progressive development of international law.12 13. The existence of such customary practice meant that the ILC had no major difficulty in formulating the draft Article. Thus the structure of Article 7 reflects a traditional concept that conforms to the imputability of an act to the State. First of all, there is an obligation to show that full powers are stated and, secondly, exceptions to the general rules are listed. Sir Gerald Fitzmaurice, Special Rapporteur, summarized this principle in the following terms: No State is obliged, or, strictly speaking, entitled, to accept as internationally authentic the acts of another State in relation to a treaty, unless they are the acts of the executive authority; but because a State is bound to accept them if they are of this character, they necessarily bind the State whence they emanate, which, having performed them through its executive authority, may not then deny their international authenticity.13 14. In his report of 1956 Sir Gerald Fitzmaurice dealt with the question of full powers under the title ‘authority to sign’ in Article 22 of the draft. The first two paragraphs of this provision stated the general rule that although the authority to sign is based on the possession of full powers, it can also be presumed from the quality and the assumed functions of the representative of the State. The third paragraph dealt with forms of full powers and the fourth referred to the possibility of regulating this issue by specific references enshrined in the treaty itself.14 15. Sir Gerald Fitzmaurice's report of 1962—in Article 4—was dealing with the problem in a rather lean style. For that reason a new sub-paragraph was added, containing a rule which later provoked numerous debates. Its text was as follows: (p. 129) However, in the case of treaties in simplified form, it shall not be necessary for a representative to produce an instrument of full powers, unless called for by the other negotiating State.15 16. The requirement of having full powers was accepted as a general rule, without any major debate and the clauses reflecting this requirement were not altered significantly later during the Vienna Conference. The same can globally be said of the distinctive treatment reserved for Heads of State, governments, and ministers of foreign affairs.

B. Problems related to the preparation and verification of ‘full powers’ Title and contents of the mandate 17. The negotiators' duty to possess ‘powers’ or ‘full powers’ can be logically deduced from the declining number of monarchs participating in personam in the conclusion of treaties as well as from the birth and growth of parliamentary democracy. 18. Historically, the difference between powers and full powers was reflected in the extent of the mandate, which came to include the right to sign the treaty in question. This also completed the right to participate in the negotiations, the right to draft, and the right to paraph, once the text was ready. As Vattel put it, ‘full powers are nothing but cum libera procurations’.16 In fact, the difference between powers and full powers had progressively disappeared, and the limits of the mandate were less and less linked to the title of the instrument containing the mandate. 19. Despite the fact that the final text of the 1969 Vienna Convention only uses the term ‘full powers’, contemporary practice also takes note of the notion of ‘powers’. In the first phase of its drafting activities, the ILC also worked on a version that referred to both notions. However, since both notions ultimately referred to the same concept, this was recognized as superfluous.17 20. Contemporary authors are of the opinion that the difference between the two forms of the mandate does not reflect the scope of authority, but rather the position of the mandated person in the diplomatic hierarchy. The doctrine also notes that, in reality, ‘full powers’ are in fact rarely ‘full’, in the sense that they tend to reserve the right to sign the negotiated text and the right to ratify to upper organs. For example, the manual on the practice of the French Ministry for Foreign Affairs refers to the nature of the treaty and the position of the person who has delivered the procuration. In France, full powers are signed by the Head of State if solemn form is necessary for the conclusion of a treaty, ie it is subject to ratification. Powers are only signed by the Minister of Foreign Affairs when a simplified form is envisaged for the conclusion of an agreement.18 21. Authors such as Fauchille, Rousseau, or Special Rapporteur Fitzmaurice thought that the title ‘plenipotentiary’ implied the possession of full powers, including also a right (p. 130) to sign the treaty.19 As Scelle had pointed out, this might indeed have been the case historically. Later, however, for the sake of greater security, some restrictions, such as a reference to a need for further ratification, were also mentioned in the powers that a plenipotentiary had to present.20 Therefore, it can be said that in fact the right to sign a treaty cannot be deduced from the adjective ‘plenipotentiary’ linked to the title of an ambassador.21 22. The form of ‘powers’ and ‘full powers’ did not evolve significantly over the centuries. Various textbooks and collected materials of diplomatic practice elaborate on the most commonly used forms regarding diplomacy in France22 and some other countries.23 In general it seems that full powers are delivered by a rather lengthy, formal administrative procedure, the particularities of which can vary according to States.24 It seems to be obvious from the text

and from diplomatic practice that full powers should always be (p. 131) delivered when the conclusion of a treaty is subject to formal ratification.25 The national rules concerning the right to sign tend to follow the constitutional partition of powers. Although there is a diversity of solutions,26 the most common practice is for the full powers to be signed by the Head of State and countersigned by the Minister of Foreign Affairs. 23. The legal instruments containing full powers only empower their possessor to act in the name of the State vis-à-vis one specified treaty. Diplomatic practice, however, does not ‘ignore’ powers, but regards them as valid until their revocation. This allows them to serve as ‘bianco cheques’, from the point of view of international law at least.27 Conventionally these documents are of a solemn character. Nevertheless in matters of urgency, and pending later presentation of powers proving them ‘being duly authorized thereto’, diplomatic practice of the twentieth century seems to accept powers sent by telegraph or similar means of communication. In such cases their text is often rather simple, informal, including only such information as is necessary to identify the holder and his competences.28

Should a reference to negotiation be included in the text of the ‘powers’? 24. At first glance this question may not seem especially important. Nevertheless, considerable attention has been paid to this issue, even if the drafters finally renounced the inclusion of this requirement in the provision.

The preparatory works of the ILC 25. In 1956, the ILC saw this problem not from the point of view of the text of full powers, but from the point of view of the competences required for the signature of a treaty. The Commission nevertheless referred to the negotiation phase twice, indicating that ‘[a]uthority to sign may be give [sic] to the representative who conducted the negotiation of the treaty… but authority to negotiate is not equivalent to authority to sign…’.29 26. In 1962, the Commission opted for a larger approach, reflected in the title of the Article: ‘Authority to negotiate, sign, ratify, accede to or accept a treaty’. Consequently it enumerated those representatives who ought to be equipped with full powers and those who can act without it. The text provided that a mandate for signature grants (p. 132) competence for the representative ‘to sign (whether in full or ad referendum), ratify, accede to or accept’ a treaty.30

The Conference of 1969 27. The reference to the competence disappeared in 1966, without a proper explanation in the reports of the Commission. This dimension of the competence, deriving from the expression ‘full powers’, did, however, reappear during the Vienna Conference, following a proposal submitted by the Hungarian delegation and supported by Poland.31 The proposal was supported by a number of States in the plenary commission.32 Only Switzerland, Australia, and Argentina were against it.33 Critics, led by Professor Bindschedler, member of the Swiss delegation, expressed the opinion that it is very difficult to identify the starting point of a negotiation, and in any event, this phase of the treaty-making process is already taken into account by the reference to other phases of the conclusion of treaties.34 Sir Humphrey Waldock provided a similar argumentation.35 28. The Hungarian-Polish amendment enjoyed evident support and was sent to the Drafting Committee but was then repealed on the ground of a new argumentation, the validity of which is difficult to understand 40 years on. As the president of the Drafting Committee informed the plenary commission, the concern was to avoid creating obstacles to ‘freedom of the diplomacy’.36 This argument seems not so much doubtful as rather ‘hors sujet’. In any event it did not provoke a reaction in the plenary commission. 29. One must appreciate, however, that diplomatic practice—in a multilateral framework especially—tends to show elasticity in the matter. It is admitted that the opening of exploratory talks or even in merito negotiations are possible without ‘powers’ understood in their original meaning, ie a formal document. Yet there is a plain contradiction apparent in the Vienna Convention regarding this subject. Article 2, for one, refers to negotiations as one of the activities covered by full powers. In fact: 1. For the purposes of the present Convention: (c)  ‘full powers’ means a document emanating from the competent authority of a State designating a person or persons to represent the State for negotiating, adopting or authenticating the text of a treaty, for expressing the consent of the State to be bound by a treaty, or for accomplishing any other act with respect to a treaty. The Drafting Committee could have avoided this redundancy and the risk of contradiction. This could have been done easily by the insertion of a simple reference to Article 2 in Article 7, instead of treating this issue, belonging first and foremost to the law of diplomacy, in such a debatable manner.

(p. 133) The control of ‘powers’ 30. The interest of States in verifying whether people representing State partners in negotiating a treaty are ‘duly authorized thereto’ has been discussed supra. The question remains as to how powers, duly prepared by authorities of a State, could be controlled by

other States. 31. In practice, the following methods have been elaborated in order to verify the documents: • The presentation of powers to partner(s): this is the most common and traditional form of verification. It must be added, though, that in practice negotiators hardly ever enter a real, indepth verification. 37 • Exchange of powers: until the 1950s, exchange of powers was treated as a matter of great importance. We have seen supra G. Scelle's remark that this practice had become uncommon, and current diplomatic practice also confirms this assumption. As Rousseau put it, ‘the simple communication substituting the formal deposit’ 38 is typical of contemporary practice. • Exhibition of powers: the Fitzmaurice report confirmed the existence of this practice and it has been emphasized that ‘[f]ull-powers must be communicated or exhibited, and must be verified by such means as are convenient’. 39 • Disclosure of powers to the secretary of the conference or the organization if the given treaty is drafted in a multilateral framework. • The establishment of an ad hoc organ in the framework of a conference (‘credentials committee’) entrusted with a competence to verify the powers of delegations prior to commencing discussions. 32. It is clear that within the framework of negotiations aimed at the conclusion of multilateral treaties, increasingly informal procedures have progressively replaced the formal exchange of full powers. It should be noted that even in cases of negotiations on bilateral treaties, ‘powers’ were never in fact ‘exchanged’ when they were delivered for a series of negotiations (bianco full powers) rather than a single case. In other cases a simple, visual verification on the spot was generally sufficient instead of a ‘material’ exchange. 33. As the ILC commented, a clear tendency can be observed, according to which: In earlier times the production of full powers was almost invariably requested; and it is still common in the conclusion of more formal types of treaty. But a considerable proportion of modern treaties are concluded in simplified form, when more often than not the production of full powers is not required.40 Jennings and Watts also conclude that as far as informal treaties are concerned, negotiators are very often exempted from the obligation to produce such documents, even if ‘some kind of written authority…is still usual’.41 (p. 134) 34. Blix draws attention to the fact that diplomatic strategy can also be a reason for the reluctance of States to exchange powers at an early stage of negotiations, as the history of the conclusion of the famous Molotov-Ribbentrop Pact shows.42 35. Certain circumstances can also explain why some deviations from formalities may be accepted. During the negotiation of treaties under the auspices of international organizations, the identity of people duly mandated by a member State can be made known in an informal way. It would be communicated by the head of the diplomatic mission accredited to the organization. It could take the form of a diplomatic note, ie a note verbale, but can also be written as a simple administrative letter.43 When negotiations continue for several months or when plenary meetings are organized on a regular basis, a notification of changes in the composition of a delegation is sufficient.

References 36. This confirms Georges Scelle's views when he wrote that: a considerable elasticity results from the practice concerning communication and verification of ‘full powers’. They are hardly ever actually exchanged and usually only the identity of the possessor is checked. A simple notification by telegraph or even by phone will be considered sufficient, without any posterior control.44 The Rapporteur of the ILC adopted a similar position: For negotiation, full-powers are not necessary. Any form of authority such as a letter, or an intimation to the local government through the diplomatic channel, giving the delegate's name will suffice.45 37. For the signature however, stricto sensu the practice is still attached to the satisfaction of much stronger formal requirements vis-à-vis the verification of powers. Nevertheless, in cases of drafting and signing administrative agreements the situation is not entirely identical, as these instruments do not have a legal nature. In this case the verification of powers is generally carried out in a subtle way. 38. The same may be said about mechanisms concerning the monitoring of obligations assumed in some international conventions. In the framework of bilateral treaties concerning the protection of national minorities contracted by countries of Central and Eastern Europe, secretaries of States (understood in European terms), or other ministers to whom such a portfolio belongs, ‘stocktaking protocols’ are drafted without any formal excessiveness. The names and titles of negotiators are nevertheless exchanged in advance via the concerned diplomatic missions. 39. One can find similar informal procedures concerning the verification of powers prepared for participation in negotiations launched by an international organization. The Council of

Europe or the Organisation for Economic Co-Operation and Development (p. 135) (OECD) seems to favour an approach based on mutual trust. They only require the formal possession of full powers once the only step that remains concerning the treaty concluded under their auspices is the signature. If the administration of a member State is late in preparing the full powers for ministers responsible for economic or financial affairs, the secretariat of the OECD (as well as the member countries) tends to show considerable patience. It is also likely provisionally to accept the participation in negotiations of a representative whose identity is attested by the head of the diplomatic mission of the country in question. The same can be said for different organs of the European Union concerning certain ministers (eg a deputy minister) specialized in European affairs and even for secretaries of States etc. This flexibility can be explained by the fact that nowadays the contemporary telecommunication facilities grant sufficient opportunities for States to act promptly should one of their representatives try to engage their country without enjoying a proper mandate. 40. When a climate of trust prevails, international organization may begin negotiating a treaty without having to verify the full powers of the participants a priori. The most striking example of this is in fact the Vienna Conference of 1969, where the report of the credentials committee was submitted only at the end of the Conference. The conclusion was drawn that all the ‘powers’ were in good and due form. One may, however, imagine the difficulties that could have arisen if the credentials committee had reached a different conclusion.

C. The capacity to act without ‘full powers’: ex officio representatives of States Heads of States and governments, ministers of foreign affairs, and the eventual restrictions of their competences 41. The recognition of the capacity for Heads of State to represent their country ex officio can be seen as a heritage of the former royal prerogatives from the Middle Ages and Antiquity. In fact, sovereigns were always considered legally entitled to commit their kingdom to legal obligations. As Grotius expressed it, ‘in monarchies, the power of making treaties belongs to the king alone’.46 In republican Rome, the pater patratus, chief and mouthpiece of the college of fetiales, was empowered with the same functions.47 The existence of these royal prerogatives was never disputed. Even in cases where the sovereign suffered from mental deficiencies, his capacity to engage his State internationally was not denied. It was the duty of his family and intimates to avoid difficult situations. 42. The emergence of modern forms of governance gave an impetus to the recognition of the capacity to negotiate and conclude alliances and other treaties for the prime ministers and ministers of foreign affairs. As the International Court of Justice stated in the Yerodia case: (p. 136) His or her acts may bind the State represented, and there is a presumption that a Minister for Foreign Affaires, simply by virtue of that office, has full powers to act on behalf of the State (see, for example, Article 7, paragraph 2 8a) of the 1969 Vienna Convention on the Law of Treaties.48 A number of former kingdoms later evolved towards parliamentary monarchies having a king as Head of State but the latter was deprived of any real competences. This once again put forward the question to what extent should foreign partners pay attention to the pertinent constitutional rules of another State restricting the competence of the Head of State in favour of the government or the parliament in certain fields.

References

The work of the ILC 43. In the ILC this problem was discussed in 1965, when several governments (namely those of Austria, Luxemburg, Italy, and Venezuela) submitted proposals to take more into consideration the constitutional structure of States in the context of treaty making. The Special Rapporteur, Sir Humphrey Waldock, however categorically rejected these suggestions as being neither necessary nor desirable.49

The Vienna Conference 44. The debate was reopened at the Vienna Conference, following the tabling of two amendments. The first was submitted by Germany50 and the second was a joint proposal from Iran and Mali.51 In the explanation of the rationale of the German proposal, Mr Fleischhauer pointed out that in this way, a partner can easily verify who is the competent representative when the given person is neither a Head of State nor in possession of full powers in due form.52 The Iranian delegate emphasized the necessity of taking the rules of national law into consideration when defining who can represent the State during the treaty-making process.53 (p. 137) 45. The reaction that these proposals met in the plenary commission was rather cool: countries were afraid that the acceptance of this formula could lead to recognition of the primacy of national law over international law. Thus, the two proposals were finally rejected.54 46. The Conference rejected the proposal that aimed to take national law into consideration for the identification of persons mandated to engage the State in the procedure of drafting norms belonging to the realm of treaty law. This refusal is certainly justified if one limits oneself to an examination of the relationship between international law and national law, in general. At this point, the Conference was obviously right when it refused to turn in a direction

which might have eventually led to recognition of a certain primacy of national law over international law. Nevertheless, it seems impossible to ignore the considerable differences which exist between the constitutional rules of different States as far as ‘external’ competences are concerned. Certainly, where there is no obligation to show ‘full powers’, the law of treaties grants an equal footing for all Heads of States. This, however, does not imply that national constitutions would not have any relevance in this matter. Article 46 of the Convention (especially in its first paragraph) could play a very important role here. It describes the situation where a treaty is concluded in manifest violation of basic constitutional rules of a State as one of the reasons for nullity.55 47. In general, the Head of State is a person who is elected directly or by a decision of the national parliament. Socialist countries used to prefer—for different reasons—the institution of the ‘presidium’, ie a collective organ exercising the prerogatives of the Head of State. Nevertheless, diplomatic practice—and not only that of socialist countries but also of other States—showed that the automatic empowering apparent in the second paragraph of Article 7 was limited to the one-person form of presidium (sometimes called president of the presidium) symbolizing the organ itself. The other members of the presidium would have to be equipped with duly prepared full powers when sent to accomplish any act falling under Article 7. This requirement is still applicable in the few countries maintaining the institution of the presidium. 48. Paragraph 2 of Article 7 also recognizes the right of ministers of foreign affairs to engage their States in the bonds of treaties. Nevertheless, in general, national law presupposes an a priori governmental decision before proceeding to such an act. This decision taken by the government is generally unknown to the partner, in order to preserve a greater margin of manoeuvring during the negotiations. In case of doubt, the minister of foreign affairs can always ask for an explicit mandate from the prime minister, since by acting without guidelines from his government he might risk his political career. This also entails a secondary effect: logically the possibility of signing a treaty ad referendum cannot concern those persons who are mandated for signature according to paragraph 2 of Article 7. Empowered thus to engage their countries, there is no reason to suppose that their act should be confirmed later, in order to become final. Despite this rule, there are some exceptions: eg in June 1997, the Minister of Foreign Affairs of Bosnia-Herzegovina signed the instrument of 19 November 1994 on the protection of national minorities of the Central European Initiative (formerly also called Pentagonale) ad referendum. This was a form of cooperation between Italy and the new democracies of Central Europe. It (p. 138) has followed ever since that despite the recognition of ex lege representation capacity in treaty-making according to paragraph 2 of Article 7 to some high representative of States, they may still opt to give a signature pending an a posteriori confirmation by their government. In general terms, the practice shows that in a number of situations, treaties refer to the verification of powers as ‘found to be in good and due form’, even in those cases where the signatures were granted by prime ministers or ministers of foreign affairs.56

References

Heads of diplomatic missions 49. There are no major differences between the approaches of the ILC and the Vienna Conference vis-à-vis the recognition of the right of ambassadors representing their States in bilateral relations to enter into negotiations on treaties without presenting full powers prepared specifically for that purpose. The text initially proposed by the ILC remained unaltered. There was, however, some debate on the issue of how to transpose this rule to serve ambassadors accredited to international organizations or to a diplomatic conference. The outcome of this debate deserves a somewhat detailed examination.

The work of the ILC 50. Initially the ILC was only concerned with empowering ambassadors for the negotiation and conclusion of treaties in the context of bilateral diplomatic relations.57 After 1962, the approach also progressively embraced the issue of treaty-making in international organizations and international conferences.58 As the ILC put it: (p. 139) the execution of these acts is sometimes entrusted to the Head of a diplomatic mission or the permanent representative of the State at the Head-quarters of an international organization, and then the production of full powers will be necessary.59 In 1965, the Israeli delegation suggested that the mandate referred to in paragraph 2 of draft Article 4 should also be understood as including a right to sign the treaty. However, this proposal was not backed by other States and was also rejected by the Rapporteur as far as ‘this appears to go beyond what is usually conceived to be the rule…’.60 The various drafts of the ILC were formulated in rather similar terms to those which were included in the final text of the Convention.61

The Vienna Conference 51. The current form of paragraph 2 of Article 7 is due to the Drafting Committee's acceptance of quasi identical amendments submitted after debates at the 13th session of the Conference62 by Hungary and Poland, on the one hand,63 and the United States, on the other.64 However, Sir Humphrey Waldock's reaction concerning the proposal was very reserved when it came to the addition of the following to the draft Article: ‘representation to an organization or to an organ of an organization’.65 Waldock was of the opinion that this proposal may be accepted only as part of the progressive development of international law.66

His position, however, was not shared by everyone. Paul Reuter, for instance, classified the whole of Article 7 as belonging to the realm of the ‘pure’ codification and lacking any elements of ‘progressive development’ of international law.67 52. The practice adopted by international organizations tends to be rather elastic in this field and is often very progressive. For instance, one should mention the initiative taken by the Council of Europe which has invited member States to grant ‘general full powers’ that are valid for a series of acts until their withdrawal, ie bianco full powers. Even if such general mandates are not at all exceptional in diplomatic history, the reaction of the member States was very cool. In June 2000, only six mandates of such nature were granted by the member States to their representatives accredited to the organization, namely on behalf of Albania, Georgia, Italy, Portugal, and Sweden. Two States, Luxemburg and the Netherlands, flatly refused this proposal and the great majority did not reply at all.68

(p. 140) The ‘implied powers’ and the importance of circumstances 53. One may pose the question whether there are any categories other than Heads of States, ministers of foreign affairs, and ambassadors who can be mandated to act in one way or other in the context of treaty-making, without being obliged to produce ‘full powers’. The answer given by the Vienna Convention is rather abstract. In fact, according to point (b) of the first paragraph of Article 7: 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…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. The determination of the status of State practice in this field as well as the ‘circumstances’ to be taken into account when dealing with the issue of powers during the preparatory works (travaux préparatoires), belong to the most highly discussed issues of the Vienna Convention.

The work of the ILC 54. At the beginning, the report submitted by the Special Rapporteur Sir Gerald Fitzmaurice in 1956 dealt with ‘circumstances’ not in the context of the exception to the obligation to exhibit powers, but as a general rule. It referred to ‘a full-power issued to the representative concerned,…specially for the particular occasion’.69 55. In 1962 the Special Rapporteur submitted a proposal to restrict this type of empowerment to a specific category of treaties: ‘[h]owever, in the case of treaties in simplified form, it shall not be necessary for a representative to produce an instrument of full powers, unless called for by the other negotiating State’.70 This proposal was built upon the assumption that ‘in the case of treaties in simplified form, the production of an instrument of full powers is not usually insisted upon in practice’.71 56. Some States, primarily Israel and Luxemburg, criticized this proposal in the observations that they formulated in 1965 regarding the draft Article.72 In his answer, the Special Rapporteur admitted that: paragraph 4…should be reformulated in terms of whether the representative may safely be considered as possessing authority.…No doubt, full powers may sometimes be dispensed with even in the conclusion of formal treaties.…The problem is whether any different rule applies in the case of what the Commission has referred to in paragraph 4 as ‘treaties in simplified form’. When dealing with the matter from the point of view of whether a representative is required to produce full powers, the Commission did distinguish between ‘formal’ treaties and treaties in simplified form.73 57. Thus, the Special Rapporteur reformulated the text as follows: a person should be considered as the representative of his State without being obliged to produce full powers when ‘it appears from the nature of the treaty, its terms or the circumstances (p. 141) of its conclusion that the intention of the States concerned was to dispense with full powers’.74 This formulation was considerably simplified in 1965: ‘it appears from the circumstances that the intention of the States was to dispense with full powers’.75 It remained unchanged in 196676 but the commentary continued to refer to treaties which could be negotiated without ‘full powers’: In earlier times the production of full powers was almost invariably requested; and it is still common in the conclusion of more formal types of treaty. But a considerable proportion of modern treaties are concluded in simplified form, when more often than not the production of full powers is not required.77

The Vienna Conference 58. At the 13th session of the Vienna Conference, Venezuela criticized the implied reference to the treaties in simplified form and proposed its suppression by emphasizing that it would be dangerous to deduce the intention of States not requiring the presentation of full powers simply from the term ‘circumstances’.78 Several delegations, such as those from Czechoslovakia and Sweden, concurred with this position. Chile, however, proposed an alternative.79 59. During the discussions, the delegation of the United States emphasized the importance of a reference to circumstances and State practice.80 The delegation of India backed the draft Article as it was submitted by the ILC in order to avoid requiring a useless work of 81

verification.81 According to the views of the delegate of Sierra Leone, all these were nothing more than pseudo-problems because treaties concluded in simplified form are in general signed precisely by Heads of States, prime ministers, and ministers of foreign affairs.82 60. The Special Rapporteur accepted the US proposal, and the plenary commission decided to send the text to the Drafting Committee in order to add the necessary modifications. When the national delegations resumed the discussion during the 14th session, the text was already very close to its final form: ‘it appears from the practice of the States concerned or from other circumstances that their intention was to dispense with full powers’.83 The Drafting Committee followed the US proposal but with a different argumentation, emphasizing the special nature of the quasi (p. 142) ministers of foreign affairs, such as the Commonwealth ministries in the United Kingdom and members of this organization.84 61. The proposal of the Drafting Committee provoked hostile reactions. At the 13th session of the plenary commission, some delegations, in particular that of Canada, criticized the validity of the approach that had been retained, ie the simple insertion of the US proposal in the draft Article without putting this to a vote.85 62. In 1969, the Drafting Committee made a final grammatical adjustment to the proposal of Ghana but without any substantive modification. The draft provision was then finally approved by the plenary commission.86 63. Even if this exception was initially conceived as being linked to the nature of the treaty, it thus basically reflects practice. This confirms the capacity to participate in treaty-making processes of persons other than those expressly listed in the first part of the provision in certain cases. 64. As is clear from these proceedings of the Vienna Conference, nothing prevents States accepting participation in treaty-making processes of persons acting without full powers. This is certainly the case, for instance, with the Commonwealth ministers, as was indicated supra.87 It is clear, however, that the acceptance of this rule cannot be expected from non-member States of the Commonwealth which remain free to require the presentation of full powers. Mutatis mutandis the same may be said for the different forms of cooperation between countries belonging to other former empires, eg the Community of Independent States. 65. One can find the same flexibility when political, rather than legal, instruments are negotiated and signed, despite their conventional features. As an example of this one may note the different soft law instruments such as inter-ministerial agreements that are often signed after a fruitful meeting between ministers of two or more countries. It is an established practice not to claim formal full powers when such agreements are concluded in a field plainly belonging to the competence of the ministers in question. In practice there can hardly ever be any real doubt since the accredited diplomatic missions duly inform the host States about the identity of the member of the government participating in the negotiations. 66. There are also other persons who are accepted by State practice as being authorized to act without formal full powers in the elaboration of a treaty. States often admit that the partners could be represented by people bearing other functions than those enumerated in Article 7 and still no claim of full powers would ever be made. This happens, for instance, when in the absence of an ambassador, the chargé d'affaires ad interimen assumes the normal functioning of a diplomatic mission. According to well-established practice, a chargé d'affaires fully substitutes the head of the diplomatic mission; restrictions may only derive from the national law of the accrediting State and from professional deontology, but certainly not from public international law. There is no legal reason to (p. 143) deny the capacity of a chargé d'affaires ad interim and this can be justified even further when a mission is awaiting the arrival of a new ambassador and the predecessor has already left the country. This empowerment is also confirmed by diplomatic practice reflected in Article 19 of the Vienna Convention of 1961 on diplomatic relations.88

References 67. There is another special category of persons regarding to whom the capacity to engage the State even without full powers can be considered if ‘it appears from the practice of the States concerned or from other circumstances’. Military officers are thus entitled to act ex officio when signing agreements between belligerent powers. These agreements are established mainly for humanitarian purposes (eg a short truce allowing for bodies of the deceased or wounded soldiers to be removed from the battlefield) or for putting an end to hostilities on a local or general level. It falls to national law and military deontology to assure the proper behaviour of commandants, as this can be a source of serious problems if the contents of the proposed agreement go considerably beyond what is traditionally recognized as the object of an instrument of this type. The possession of full powers tends to be a sine qua non condition for the signing of agreements of a general character such as an armistice. 68. At this stage one may wonder whether States are allowed to put the capacity to negotiate of persons falling under paragraph 2, points (a) and (c) of Article 7 into question, despite the prescriptions of the Vienna Convention. The answer is in the affirmative, maintaining that such a situation can only be realized in theoretical hypotheses or at least in very peculiar circumstances. It could happen, for example, when a government is overthrown or when—for whatever reasons—an ambassador is called to return immediately by his government.

D. Who should bear the risk of negotiating with an agent not in possession of ‘full powers’? 69. During the debates concerning the question whether States are obliged or only entitled to

claim that full powers should be produced before entering into negotiations, all the participants opted for the second possibility. 70. As the Special Rapporteur put it: no doubt, full powers may sometimes be dispensed with, but in that case, the risk of any lack of authority lies with the State which fails to insist upon their production.… When, however, the matter is approached from the point of view whether another State is entitled to presume the authority (p. 144) of a representative to commit his State without the production of full powers, it does not follow that the same distinction needs to be made. The question is where the risk of lack of authority should lie.89 71. Sir Humphrey Waldock summarized the crucial problem as follows: the question is not whether full powers may be dispensed with but where in the event of an actual lack of authority, the risk is to lie: on the representative's State or on the State which does not call for full powers. Under the existing law it is believed to fall on the latter.90 This solution was not challenged later. 72. The diplomatic and military history of the Second World War provides several examples which elucidate the consequences of negotiations carried out without powers or with imperfect powers. We have already referred to the delicate situation when military commanders act as negotiators. In October 1944, when receiving a Hungarian delegation seeking an armistice, Molotov, the Soviet Foreign Minister, considered the document that historians called ‘Makarov's letter’ as ‘non-existent’. This letter was sent to governor-regent Miklós Horthy in September by a Soviet commandant with proposals on rather favourable conditions91 for Hungary in case of acceptance of a prompt armistice. The letter also referred to instructions received directly on behalf of Molotov. The powers of Colonel Makarov were not verified by the Hungarian military authorities and that is the reason why the Hungarian side had to accept the consequences when Molotov declared that the Soviet Union was not bound by the position expressed by its alleged ‘representative’. 73. In the same manner, when the unconditional surrender of the Nazi army was signed on 7 May 1945 in Reims by German General Jodl, Stalin claimed that General Susloparov, Soviet liaison officer to the Allies Headquarters, was not empowered to sign the agreement contracted with Eisenhower, Bedel Smith, and Sevez. This way, the Wehrmacht had to surrender once again on 9 May 1945 but in Berlin, before Marshall Zhukov. 74. To conclude, it may be declared that despite the flexibility sometimes witnessed in practice, the requirement that agents should possess full powers in order to commit their State during negotiations or by the signature of treaties, while some high dignitaries of a State are ex officio accepted to represent their States, reflects a well-established custom in public international law. The text of Article 7 of the Vienna Convention is thus very close to customary law as well as to old and new tendencies of diplomatic practice. *

PETER KOVACS

Footnotes: 1 For more details, see the commentaries on these Articles in the present work. 2 Report of the ILC to the General Assembly (YILC, 1962, vol. II, p 165). 3 The ILC emphasized that it is an ‘accepted practice’ (YILC, 1962, vol. II, p 165) and ‘it is still common’ (YILC, 1966, vol. II, p 193). 4 Mr Bindschedler, the Swiss delegate, qualified the text submitted by the ILC as being in conformity with State practice and customary law: Official Records, Summary Records, 1st session, 13th meeting, p 72, para. 34. 5 Classic treaties tended to describe these institutions as manifestation of a very deep-rooted State practice. Cf Hugo Grotius, De jure belli ac pacis (see esp. ch. XV); Emer Vattel, Le droit des gens, ou principes de la loi naturelle, appliqués à la conduite et aux affaires des nations et des souverains: vol. 2, para. 156; Friedrich Martens, Guide diplomatique (Leipzig, 1932), para. 42; Henry Wheaton, Histoire des progrès du droit des gens, en Europe et en Amérique, depuis la paix de Westphalie jusqu'à nos jours (4th edn, Leipzig, 1865), para. 229; J. C. Bluntschli, Das moderne Völkerrecht der zivilisierten Staaten, als Rechtbuch dargestellt (Nördlingen, 1868), para. 405; Franz von Liszt, Das Völkerrecht (ed. O. Häring) (9th revsd edn, Berlin: 1913), p 164; Oppenheim, International Law—A Treatise, vol. I (London : Longmans, Green, 1912), pp 543–4; George Scelle, Précis de droit des gens ([Sirey, 1932] revsd edn, Paris: CNRS, 1984), pp 461–2. 6 See esp. para. XII ch. XI, para. IV ch. XXII, and ch. XV in particular. 7 Hans Blix, Treaty-making Power (London, New York: Stevens & Sons, Frederick A. Praeger, 1960), p 3. 8 Ibid. 9 PCIJ, 5 April 1933, Series A/B, no. 53, p 71: The Court considers it beyond all dispute that a reply of this nature given by the Minister for Foreign Affairs on behalf of his Government and in response to a request by the diplomatic representative of a foreign Power, regarding a question that had arised in his province, is binding upon the country to which the Minister belongs. 10 YILC, 1962, vol. II, p 39.

11 Paul Reuter, La Convention de Vienne sur le droit des traités (Paris: Librairie Armand Colin, 1970), p 7. 12 ‘…the Commission thought that the draft would go beyond existing practice in stating the position of permanent representatives as broadly as did the Hungarian and Polish and the United States amendements…Nevertheless, the Committee might consider whether it wished to reflect existing practice or to lay down a rule entailing progressive development of international law in the matter on the lines of those amendments’ (Official Records, Summary Records, 1st session, 13th meeting, p 82, para. 66). 13 G. G. Fitzmaurice's report of 14 March 1956, YILC, 1956, vol. II, p 109. 14 1. Except where made ad referendum, signature, which is the act of the State, can only be effected (a) under a full-power issued to the representative concerned, either specially for the particular occasion, or generally by virtue of his office as Ambassador, Minister of Foreign Affairs or otherwise; (b) by a person having inherent capacity to bind the State by virtue of his position or office as Head of State, prime Minister or Minister of Foreign Affairs. 2. Authority to sign may be give [sic] to the representative who conducted the negotiation of the treaty, or to some other representative specially empowered to that effect, but authority to negogiate is not equivalent to authority to sign, and must, for the latter purpose, be completed or supplemented. 3. Full powers must be communicated or exhibited, and must be verified by such means as are convenient. They must be in appropriate form, which may be Heads of State or governmental, according to the nature of the occasion. In cases where transmision of full powers is delayed, a telegraphic authority, or a letter from the Head of the diplomatic mission of the country concerned in the country of negotiation, may be accepted, subject to eventual production of full powers. 4. Except in the case of exchanges of notes or letters, or of agreed minutes, or memoranda, or other cases where authority is implied by the act of signature, or is inherent in the office of the person signing, the treaty must contain a statement or recital to the effect that the representatives of the signatory States have authority to sign it, or some other indication (such as the use of the term ‘Plenipotentiaries’) that such authority exists. (G. G. Fitzmaurice, supra n 13, pp 111–12.) 15 Article 4, para. 4(b). 16 Vattel, op. cit vol. II, para. 156. 17 Article 13 Definitions: For the purposes of the present Code: (b) ‘Full powers’ or ‘credentials’ means the formal instrument or document authorizing a given person to represent a State for the purpose of negotiating or concluding, or of negotiating and concluding, a treaty, as the case may be (G. G. Fitzmaurice, supra n 13, p 109). 18 René de Vienne, Les engagements internationaux selon la pratique française (Paris: Ministry of Foreign Affairs, 1985), pp 33–4. 19 Article 22(4). Generally: the treaty must contain a statement or recital to the effect that the representatives of the signatory States have authority to sign it, or some other indication (such as the use of the term ‘Plenipotentiaries’) that such authority exists. (G. G. Fitzmaurice, supra n 13, p 112) See also Paul Fauchille, ‘Traité de droit international public’ (8th revsd and supplemented edn), in Henry Bonfils, Manuel de droit international public, vol. I, Pt III (Paris: Rousseau, 1926), para. 823, p 315; Charles Rousseau, Droit international public, vol. I, Introduction and sources (Paris: Sirey, 1970), p 81. 20 Scelle, supra n 5, p 462. 21 Vienne, supra n 18, p 33. 22 François Mitterrand, Président de la République française, à tous ceux qui ces présentes lettres verront, salut: Un Traité …………devant être conclu à ……. . ., entre la France et ………. ., à ces causes, Nous confiant entièrement en la capacité, zèle et dévouement de M……. . ., ………. (nom et titres), Nous l'avons nommé et constitué Notre Plénipotentiaire à l'effet de négocier et signer ledit Traité. Promettons d'accomplir et d'exécuter tout ce que Notre dit Plénipotentiaire aura stipulé et signé en Notre nom, sans permettre qu'il y soit contrevenu de quelque manière que ce soit, sous réserve de Nos Lettres de Ratification. En foi de quoi, nous avons fait apposer à ces présentes le Sceau de la République française. (Signé:) F. MITTERRAND Fait à Paris, le …. . ., Par le Président de la République: Le Premier Ministre. Le Ministre des relations extérieurs.

In P. Reuter, and A Gross, Traités et documents diplomatiques (Paris: PUF, 1982), pp 528–9. 23 Lyndon B. Johnson, President of the United States of America, To all whom these presents shall come, greetings:

Know ye, That, reposing special trust and confidence in the integrity, prudence, and ability of ……. . with the rank and status of Ambassador Extraordinary and Plenipotentiary, I have invested him with full and all manner of powers and authority for and in the name of the United States of America to sign the Convention on ……. . dated ……. . ., the said Convention to be transmitted to the President of the United States of America for ratification by and with the advice and consent of the Senate of the United States of America. In testimony whereof, I have hereunto set my hand and caused the Seal of the United States of America to be affixed. Done at the city of Washington ……By the President: Secretary of State: H. Blix and J. H. Emerson, The Treaty Maker's Handbook (Stockholm: Dag Hammarksjöld Foundation; New York: Oceana; Stockholm: Almqvist & Wiksell, 1973), p 39. 24 According to the referred French textbook, the department of treaties of the ministry should be requested by the other ministry three weeks prior to the signature with ‘full powers’ but only eight days prior to the signature when it will be done only with ‘powers’. A comprehensive dossier should be opened with the enumeration of the name of the future holder of the full powers, the name of the person in charge of the dossier in the partner ministry, in the ministry of foreign affairs the name of the competent expert of the legal service, a detailed analysis of the issue containing the summary of the agreement which will be signed, the reasons why—in case of an agreement without the reservation of ratification— parliamentary approval is not necessary, etc. In case of ‘powers’, only one copy of the draft agreement is required, but two are required in case of ‘full powers’ etc. For more details, see Vienne, supra n 18, pp 34–5. 25 See para. 2(d) of Art. 14 of the Convention and the commentary on this provision in the present work. 26 In France, the Minister of Foreign Affairs can now alone sign ‘full powers’. See also such instruments in Blix and Emerson, supra n 23, pp 38–9. 27 See the Ethyopian and British examples in Blix and Emerson, supra n 23, pp 40–1. 28 See the Sudanese example cited by Blix and Emerson, supra n 23, p 42 and the explanation of the Special Rapporteur of the ILC, G. G. Fitzmaurice, supra n 13, p 112: ‘In cases where transmision of full-powers is delayed, a telegraphic authority…may be accepted, subject to eventual production of full-powers’. The position of the UN Secretariat was very similar: In some exceptional cases and for reasons of urgency, if, for example there is a timelimit, cabled credentials may be accepted provionally but the cable should also originate from the Head of State, the Head of the Government or the Minister of Foreign Affairs and should be confirmed by a letter from the Permanent Delegation or the Plenipotentiary certifying its authenticity. The text of the cable should also state the title of the agreement referred to, and whether the Plenipotentiary is authorized to sign subject to later acceptance, and should specify that ordinary credentials are being sent immediately by mail. Practice of the United Nations Secretariat in relation to certain questions raised in connexion with Articles on the law of treaties, Note by the Secretariat, 23 June 1959, A/CN.4/121. 29 G. G. Fitzmaurice, supra n 13, p 111. 30 Report of the ILC to the General Assembly, YILC, 1962, vol. II, p 33, draft Art. 4(1, 2–a, 3). 31 Official Records, Summary Records, 1st session, 13th meeting, p 71, para. 8. 32 The United States, Sweden, the United Arab Republic, the United Kingdom, Canada, India, Italy, Singapore, Romania, Greece, and Sierra Leone. 33 Official Records, Summary Records, 1st session, 13th meeting, pp 69–75, paras 3–70. 34 ‘The greater power to adapt the text of a treaty included the lesser power to negotiate’ (Official Records, Summary Records, 1st session, 13th meeting, pp 72–3, para. 41). 35 Ibid, p 75, para. 65. 36 ‘The Drafting Committee had decided not to refer negotiation in the Article…for fear that that might curtail the freedom of diplomacy’ (Official Records, Summary Records, 1st session, 34th meeting, p 186, para. 7). 37 Ian Brownlie, Principles of Public International Law (5th edn, Oxford: Clarendon Press, 1998), pp 610–11. 38 Rousseau, op. cit, p 80. 39 G. G. Fitzmaurice, supra n 13, p 111. 40 YILC, 1966, vol. II, p 193. 41 Robert Jennings and Arthur Watts, Oppenheims' International Law (9th edn, Harlow: Longman, 1992), p 1222. 42 Blix, supra n 7, pp 83–4.

43 The practice of the European Council is particularly flexible in the field where the appointed missions have notified the commissioned people as they wished. During the preparation of the European Charter for Regional or Minority Languages and the Framework Convention for the Protection of National Minorities in Europe when the current writer was a member of the government delegation, the enabling documents were treated informally at least at the level of the negotiations (own translation). 44 Scelle, supra n 5, p 462. 45 G. G. Fitzmaurice, supra n 13, p 120. 46 H. Grotius, supra n 5, ch. XV, III/1 (translation by A. C. Campbell, London, 1814), On the Law of War and Peace: De Jure Belli ac Pacis. Available at: http://www.constitution.org/gro/djbp.htm. 47 Ibid. 48 Case concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium), 14 February 2002, ICJ Reports 2002, pp 22–3, para. 53. 49 See Sir Humphrey Waldock, Fourth Report on the Law of Treaties, YILC, 1965, vol. II, p 20, para. 1. 50 A/CONF.39/C.1/L.50: The following persons are 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: (a) Heads of States; (b) Any other person (i) who is authorized under the internal law of his State to perform the acts mentioned above withoutthe authorization of the Head of State; (ii) who produces appropriate full powers from the Head of State; (iii) who produces appropriate full powers from any of the persons mentioned under (i). 51 A/CONF.39/C.1/L.64 et Add.1: ‘Except as provided in paragraph 2, and subject to the provisions of the internal law of the States concerned, a person is considered as’. 52 ‘The purpose of his delegation's amendement was to protect good faith with regard to the acts performed by the Head of State and by persons who produced full powers from him. It referred to internal law only when any other person claimed constitutional authority to express consent independently of the Head of State’ (Official Records, Summary Records, 1st session, 13th meeting, p 70, para. 6). 53 ‘The international law Commission has drafted Article 6 without regard to the internal laws of States under which the authority to represent a State in the conclusion of treaties was conferred’ (Official Records, Summary Records, 1st session, 13th meeting, p 70, para. 7). 54 The United States, Czechoslovakia, the United Kingdom, Switzerland, India, Sierra Leone, Australia, Argentina, Poland, Sweden, Greece, and the Special Rapporteurs pronounced against the proposed amendments. No other country backed these proposals (ibid, pp 76–83). 55 For further reading, please turn to the relevant chapter of the present commentary. 56 See eg the Berlin Treaty on Bulgaria and Roumania, signed 13 July 1878 by AustriaHungary, France, Germany, Great Britain, Italy, Russia, and the Ottoman Empire; the FrenchAmerican treaty of guarantee of 28 June 1919; the peace treaty of 29 August 1921 between Hungary and the United States; treaty on neutrality and non-aggression of 17 December 1925 between the USSR and Turkey; the treaty on friendship of 5 April 1927 between Hungary and Italy; the famous Molotov-Ribbentrop Pact of 22 August 1939; the treaty on mutual assistance of 25 August 1939 between Poland and Great Britain; the Anti-Comintern Pact of 27 September 1940 between Germany, Italy, and Japan; the treaty on non-aggression and eternal peace between Hungary and Yugoslavia signed 12 December 1940; the treaty on neutrality of 3 April 1941 between the USSR and Japan; the treaty on friendship and non-aggression of 5 April 1941 between the USSR and Yugoslavia; the treaty of 11 December 1941 between Germany, Italy, and Japan on the common belligerence; the Soviet-British treaty of 26 May 1942 on alliance and mutual assistance; the French-Soviet treaty of 10 December 1944 on alliance and mutual assistance; the Hungarian-Soviet truce of 20 January 1945; the PolishSoviet treaty of 21 April 1945 on alliance and mutual assistance; the treaty of 29 June 1945 between the USSR and Czechoslovakia on the cession of Ruthenia (Subcarpatic Ukraine); the Japanese capitulation of 2 September 1945; the Hungarian peace treaty of 10 February 1947 signed with member countries of the Allies (the anti-fascist coalition); the Finnish-Soviet treaty of 6 April 1948 on friendship; the Statute of the Council of Europe signed 5 May 1949; the Warsaw Pact of 14 May 1955; the Treaty of Rome on the European Economic Community, signed 25 March 1957; the Treaty of Lisbon amending the Treaty on European Union and the Treaty Establishing the European Community, signed 13 December 2007, etc. 57 See Art 22(2) in G. G. Fitzmaurice, supra n 13, p 111. 58 Article 4(2): 1. Heads of State, Heads of Government and Foreign Ministers are not required to furnish any evidence of their authority to negotiate, draw up, authenticate or sign a

treaty on behalf of their State. 2. (a)  Heads of a diplomatic mission are not required to furnish evidence of their authority to negotiate, draw up and authenticate a treaty between their State and the State to which they are accredited. (b)  The same rule applies in the case of the Heads of a permanent mission to an international organization in regard to treaties drawn up under the auspices of the organization in question or between their State and the organization to which they are accredited.

YILC, 1962, vol. II, pp 164–5. 59 YILC, 1962, vol. II, p 38. 60 Sir Humphrey Waldock, Fourth Report on the Law of Treaties (A/CN.4/177 and Add. 1 and 2, YILC, vol. II, p 21, para. 5). 61 Article 6(2)c: ‘Representatives accredited by States to an international conference or to an organ of an international organization, for the purpose of the adoption of the text of a treaty in that conference or organ’:

YILC, 1965, vol. II, p 160, YILC, 1966, vol. II, p 192; A/CN.4/L.117 and Add.1—revised draft Articles of 13–14 July 1966, p 125. 62 Official Records, Summary Records, 1st session, 13th meeting, pp 64–74, paras 3–52. 63 A/CONF.39/C.1/L.78 and Add. 1. 64 A/CONF.39/C.1/L.90. 65 ‘not only to the Organiaztion but specifically to the organs in which traeties might be concluded or adopted’ (Official Records, Summary Records, 1st session, 13th meeting, p 75, para. 66). 66 ‘…the Commission thought that the draft would go beyond existing practice in stating the position of permanent representatives as broadly as did the Hungarian and Polish and the United States amendments…Nevertheless, the Committee might consider whether it wished to reflect existing practice or to lay down a rule entailing progressive development of international law in the matter on the lines of those amendments’ (Official Records, Summary Records, 1st session, 13th meeting, p 82, para. 66). 67 P. Reuter, supra n 11, p 7. 68 See the document CAHDI (2000) 3 of the Council of Europe. 69 See Art. 22(1) in G. G. Fitzmaurice, supra n 13, p 111. 70 YILC, 1962, vol. II, p 165. 71 Ibid, para. 6 of the commentary. 72 Sir Humphrey Waldock, Fourth Report on the Law of Treaties, YILC, 1965, vol. II, pp 18– 19. 73 Ibid, p 21, para. 7. 74 Ibid, p 22, para. 11. 75 YILC, 1962, vol. II, p 160. 76 A/CN.4/L.117 and Add. 1—revised draft Articles (projet d'Articles révisé) 13–14 July 1966, p 125. 77 YILC, 1962, vol. II, p 193. 78 Official Records, Summary Records, 1st session, 13th meeting, p 77, para. 22. 79 ‘However, failure to produce full powers does not avoid the validity of the treaty when it is established or if it appears from the circumstances that such production was not considered necessary by the States concerned’ (Official Records, Summary Records, 1st session, 13th meeting, p 71, para. 25). 80 Official Records, Summary Records, 1st session, 13th meeting, p 70, para. 10; A/CONF.39/C.1/L.90. 81 ‘an unnecessary burden would thereby be imposed on Ministries of Foreign Affairs, particularly on their legal departments. The deletion of paragraph 1 (5) would thus conflict with universal practice’ (Official Records, Summary Records, 1st session, 13th meeting, p 73, para. 45). 82 Ibid. 83 ‘it appears from the practice of the States concerned or from other circumstances that their intention was to dispense with full powers’ (Official Records, Summary Records, 1st session, 34th meeting, p 185, para. 3). 84 In States where a Minister was responsible for a certain sector of foreign affairs, for example the Minister for Commonwealth Relations in the United Kingdom and the Minister for International Trade in some other countries, the reference to ‘the practice of the States concerned’ might relieve the Minister of the need to produce full powers when negotiating a treaty on a matter within his compentence (Official Records, Summary Records, 1st session, 34th meeting, p 186, para. 5).

85 Official Records, Summary Records, 1st session, 34th meeting, p 187, para. 25. 86 Ibid, 2nd session, 8th meeting, p 16, para. 56. 87 Ibid, 1st session, 34th meeting, pp 185–6, para. 5. 88 Article 19 of the Vienna Convention on diplomatic relations: 1. If the post of Head of the mission is vacant, or if the Head of the mission is unable to perform his functions, a charge d'affaires ad interim shall act provisionally as Head of the mission. The name of the charge d'affaires ad interim shall be notified, either by the Head of the mission or, in case he is unable to do so, by the Ministry for Foreign Affairs of the sending State to the Ministry for Foreign Affairs of the receiving State or such other ministry as may be agreed. 2. In cases where no member of the diplomatic staff of the mission is present in the receiving State, a member of the administrative and technical staff may, with the consent of the receiving State, be designated by the sending State to be in charge of the current administrative affairs of the mission. However, one should pay attention to the fact that the reference to ‘current administrative affairs’ supra can be taken to mean that the chargé d'affaires should produce full powers before entering into negotiation on a treaty when it cannot be considered that such an activity belongs to the realm of current administrative affairs. 89 Sir Humphrey Waldock, Fourth Report on the Law of Treaties, YILC, 1965, vol. II, p 21, para. 7. 90 Ibid, p 21, para. 5. 91 In fact, the ‘Makarov letter’ was open to recognizing Hungarian sovereignty over territories seized according to the arbitral awards of Vienna of 1938 and 1940 from Slovakia and Transylvania (Romania), as well as Carpathian-Ukraine and Vojvodina, acquired manu militari in 1939 and 1941, even if pending the final decision of the future peace conference. * Judge at the Constitutional Court, Professor, Peter Pazmany Catholic University, Budapest, Hungary.

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Volume I, Part II Conclusion and Entry into Force of Treaties, s.1 Conclusion of Treaties, Art.7 1986 Vienna Convention Peter Kovacs From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Treaties, conclusion — Customary international law — Consular relations

(p. 145) 1986 Vienna Convention 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) that person produces appropriate full powers; or (b) it appears from practice or from other circumstances that it was the intention of the States and international organizations concerned to consider that person as representing the State for such purposes without having to produce 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 between one or more States and one or more international organizations; (b) representatives accredited by States to an international conference, for the purpose of adopting the text of a treaty between States and international organizations; (c) representatives accredited by States to an international organization or one of its organs, for the purpose of adopting the text of a treaty in that organization or organ; (d) heads of permanent missions to an international organization, for the purpose of adopting the text of a treaty between the accrediting States and that organization. 3. A person is considered as representing an international organization for the purpose of adopting or authenticating the text of a treaty, or expressing the consent of that organization to be bound by a treaty if: (a) that person produces appropriate full powers; or (b) it appears from the circumstances that it was the intention of the States and international organizations concerned to consider that person as representing the organization for such purposes, in accordance with the rules of the organization, without having to produce full powers. A. General characteristics 146 Object and purpose 146 Customary status 146 B. Problems connected with the nature of ‘powers’ of the organizations 147 Should the rules applied vis-à-vis international organizations be considerably different from those of the 1969 Convention? 147 Is there any difference between the ‘powers’ of a representative of an organization and the ‘full powers’ of a delegate of a State? 149 Should the will of an organization be ‘expressed’ or only communicated? 151 C. Capacity to act without ‘powers’ 151 Persons mandated for an ex officio representation of organizations 151 Empowering according to the practice of the organizations 153

(p. 146) Bibliography Gaja, G., ‘A “New” Vienna Convention on Treaties Between States and International Organizations or Between International Organizations: A Critical Commentary’, BYBIL, 1987, vol. 58, pp 253–69 Nascimento e Silva, G. E. do, ‘The 1986 Vienna Convention and the Treaty-Making Power of International Organizations’, GYBIL, 1986, vol. 29, pp 68–85 Polakiewicz, J., Treaty-Making in the Council of Europe (Strasbourg: Council of Europe, 1999) Reuter, P., Introduction to the law of treaties (trans. Jose Mico and Peter Haggenmacher) (London: Kegan Paul International; Publications de l'Institut universitaire de hautes etudes internationales, Geneva) Rosenne, S., Developments in the Law of Treaties 1945–1986 (Cambridge: Cambridge University Press, 1989), pp 10–32 Zemanek, K., ‘The United Nations Conference on the Law of Treaties Between States and International Organizations or Between International Organizations: The Unrecorded History of its General Agreement’ in K. H. Böckstigel et al (eds), Law of Nations, Law of International Organizations, World Economic Law: Liber Amicorum

Ignaz Seidl-Hohenveldern (Cologne: Heymanns, 1988), pp 665–79

A. General characteristics Object and purpose 1. The object of Article 7 of the 1986 Convention is to specify the extent of treaty-making capacity in the same manner as was done by the 1969 Convention. In dealing with this question the specific international organizations' competences should be taken into consideration as well as the treaty-making powers of States. The structure of the Article remains as before: first the necessity of having ‘full powers’ is marked as a general rule. Secondly, representatives of States and international organizations are enumerated, who are presumed to represent their State without having to present ‘full powers’. 2. The aim of the institution of full powers is the same as in the 1969 Convention: to identify the emissary and to clarify his competences from a treaty-making point of view. The catalogue of exceptions follows the same logic, ie some persons are ex officio empowered to engage the States that they represent. The considerations expressed in the chapter devoted to Article 7 of the 1969 Convention are mutatis mutandis also applicable for Article 7 of the 1986 Convention.1 3. Whereas the structure and logic of State activity is very similar in most countries despite the diversity of names and the peculiarities of the relevant institutions, these similarities are much less evident in the case of international organizations. This explains the complexity and opacity of certain sub-paragraphs of Article 7 of the 1986 Convention.

Customary status 4. The rules and procedures concerning ‘powers’ and ‘full powers’ belong without any doubt to the realm of international custom as far as negotiation and signature of inter-State treaties are concerned, a field suitably reflected in the 1969 Convention.2 Can the (p. 147) same be said about treaties of international organizations? The answer to this question should be moderated, as we will have the opportunity to see infra. It is certainly true that the relatively short history of international organizations does not prevent the evolution of customary rules as the Permanent Court of International Justice emphasized in its Advisory Opinion in Free City of Danzig and International Labour Organization.3 Thus a good number of rules concerning certain aspects of international organizations can be considered as having a customary nature.

References 5. Concerning treaties of international organizations, the most significant difficulties arise from the cohesion (and moreover the uniformity) of practice. During the preparatory works of the 1986 Convention in the ILC and at the Vienna Diplomatic Conference, several interventions put the emphasis—at least in abstracto—on the alleged diversity of the treatymaking activity of organizations, shadowed by a certain pragmatism. However, the rules finally transposed in the 1986 Convention did not show major differences vis-à-vis the 1969 Convention, the customary nature of which had been widely recognized. This similarity is also plain in the case of powers and full powers dealt with in Article 7 of the two Conventions. 6. It would be easy to assume that the similarity of the two Conventions is the result of a consensus based on a lack of creativity of diplomats and lawyers, by contrast to the views expressed during the preparatory works concerning the applicability of rules of the 1969 Convention to the treaties contracted with and between international organizations. According to the preparatory works, it is very clear, however, that during the drafting of the 1969 Convention, neither the ILC nor the participants to the Diplomatic Conference wanted to make things more complicated. They did not, however, deny the existence of customary rules in this field either. One can thus assume that custom and progressive development are closely interrelated here, even if the customary elements enjoy a dominant role. This is certainly the case with Article 7, the customary character of which can be easily recognized.

B. Problems connected with the nature of ‘powers’ of the organizations Should the rules applied vis-à-vis international organizations be considerably different from those of the 1969 Convention? 7. During the 1950s and 1960s, the ILC accepted in general that considerable differences can exist between the rules applicable to treaties contracted with and between international organizations, on the one hand, and inter-State treaties, on the other hand. They assumed, moreover, that the customary background of treaties of international organizations could be doubtful. This was also the position of the participants to the 1969 Diplomatic Conference. The problem then arises: may one also follow this general approach when dealing with representation and treaty-making capacity? 8. The high number of treaties concluded by international organizations justifies the attention paid to this question. Paul Reuter, the Special Rapporteur on treaties contracted between States and international organizations or between international organizations, enumerated several examples. Concerning the phenomenon of the so-called ‘agreement explosion’, the Rapporteur wrote that:

(p. 148) figures have often been cited in this connexion. To take only those given in connexion with the work of the ILC, one of its members stated in 1965 that there were about 200 agreements concluded between international organizations and over 1000 between international organizations and States. During the debate at the United Nations Conference on the Law of Treaties, the observer for IBRD [International Bank for Reconstruction and Development] recalled once again that IBRD and IDA [International Development Agency] alone were parties to more than 700 international agreements. In 1969 the report of the Sixth Committee indicated that agreements to which international organizations were parties amounted to about 20 per cent of the multilateral treaties in force.4 9. Concerning the transposability of rules of the 1969 Convention to treaties made by international organizations, one can see a slow but definite realignment during the preparatory works. The Special Rapporteur was initially rather sceptical about this. He emphasized that ‘it is not certain that symmetrical texts for international organizations can be prepared by a simple drafting transposition’,5 in particular concerning the capacity to represent and to sign treaties. He emphasized that when one is speaking about the personality and capacity of international organizations, and the development of the treaty-making power of these organizations and their organs[,] it is quite natural that different trends should emerge in dealing with questions that are of interest both because of the general ideas they embody and because of the immediate political issues at stake.6 The initial scepticism of the Special Rapporteur gradually disappeared. In his Fourth Report, Reuter stated that it was necessary—moreover, useful—to follow the structure and contents of the 1969 Convention without making any alterations, except for slight stylistic amendments, stating that this will cause no fundamental problem.7 As far as the issue of representation is concerned, Reuter opted for a solution ‘to reproduce the essence of the provisions of the 1969 Convention concerning representatives of States’.8 However, the task was not as easy as it seemed, since—as the Special Rapporteur emphasized—‘in fact there is in practice considerable freedom with regard to full powers of international organizations and the problems arises of how to respect this practice while at the same time establishing a general principle’.9 Nevertheless, these difficulties did not prevent him from submitting a draft showing all essential features of Article 7 of the 1969 Convention and closely resembling the one that had been finally approved.10 10. The customary rules dealing with State envoys contained in the 1969 Convention were transposed without any major alteration to the text adopted in (p. 149) 1986: the Head of State, the prime minister, and the minister of international affairs are ex officio competent visà-vis all acts in relation to the conclusion of a treaty. An ambassador accredited to an international organization is entitled to negotiate and to participate in the drafting of a treaty in the framework of that organization but is not empowered to sign it, except if he can produce appropriate full powers therefore. 11. On the other hand, the situation was much more problematic when it came to the representation of international organizations. The complexity of this was well reflected in the synthesis prepared by Paul Reuter, recapitulating the most important characteristics of contemporary practice: (a)  In general, international organizations do not issue full powers to their representatives; (b)  The proof that a person is empowered to perform certain acts relating to the conclusion of a treaty sometimes derives simply from his functions, or from a deliberation of an organ concerning the conclusion of a treaty, or from a specific instrument; in the latter case, this is usually an informal instrument, such as a simple letter, rather than a formal instrument properly so called. 11 12. Reuter's first statement might seem too categorical but nevertheless it is important to recall that by the term ‘representative’ he practically understood only the highest official of an organization: The main reasons why in practice explicit powers are infrequently used seem to be the following. The treaties concluded by organizations are, with very few exceptions, bilateral treaties which are only the last phase of lengthy contacts and consultations during which it has been established clearly, and usually in writing, which person is to represent the organization; moreover, it is the heads of the international secretariats or their immediate colleagues who in fact usually play the essential role, and the heads of secretariats are reluctant to resort to powers because it is difficult to imagine that they could find a person more suitable than themselves to issue them.12

Is there any difference between the ‘powers’ of a representative of an organization and the ‘full powers’ of a delegate of a State? 13. The existence of a possible semantic difference between ‘powers’ and ‘full powers’ was largely discussed during the drafting of Article 7 of the 1969 Convention.13 The debate was reopened in the ILC by the Soviet member, Ushakov, who criticized Reuter's proposal (p. 150) as it only referred to ‘full powers’ both in its title and text.14 Ushakov denied that international organizations did actually use the term ‘full powers’ in practice. Reuter admitted that in fact for the conclusion of a treaty, States prepare full powers while international organizations only give powers. The latter notion is also used in the 1975 Vienna Convention on the

representation of States in their relation to international organizations of a universal character. However, it refers in that context to an instrument which is the equivalent of the credentials of an ambassador. In order to manifest a spirit of compromise, the Special Rapporteur proposed to use the terms ‘full powers for that purpose’.15 However the ILC opted to alter the title to ‘powers and full powers’ and the documents of the representatives of international organizations were called ‘powers’ or ‘appropriate powers’.16 14. The States represented in the Sixth Committee of the General Assembly did not require any modification in these titles.17 Nevertheless, in their written observations submitted later, Germany and the secretariat of the United Nations proposed a return to ‘full powers’ to simplify and clarify the use of special terms.18 15. During the 1986 Vienna Conference, the Chinese delegation also proposed a return to the expression ‘full powers’ and this amendment19 was backed by the delegations of Poland, Denmark, Japan, Great Britain, Turkey, Spain, Cuba, Kuwait, Iceland, Finland, the Netherlands, South Korea,20 Gabon, Austria, Italy, Egypt, Greece, Switzerland, Lesotho, Unesco, and the EEC.21 Following this debate and after having taken note of the position of the Special Rapporteur who has been invited as expert consultant of the conference on the relativity or lack of real differences between the terms of ‘powers’ and ‘full powers’,22 the (p. 151) Drafting Committee took the decision to replace ‘powers’ with ‘full powers’ throughout the document.23

Should the will of an organization be ‘expressed’ or only communicated? 16. Paragraph 3 of Article 7 of the 1986 Convention refers to specific circumstances where a person could be considered as empowered to express the consent of an international organization. Even the Special Rapporteur initially used the verb ‘to express’24 and, in 1975, the ILC opted for the expression ‘to communicate’. The fear was prompted by the lacunas and ambiguities of the charters of different organizations. In this regard, the representative may have the impression of being entitled to decide on his own whether the organization is bound or not bound by a given treaty. The Special Rapporteur justified this terminological shift by the fact that the verb ‘to communicate’ indicates more clearly that the consent of an organization to be bound by a treaty must be established according to the constitutional procedure of the organization and that the action of its representative should be to transmit that consent; he should not…be empowered to determine by himself the organization's consent to be bound by a treaty.25 17. In its observations formulated in 1981, Germany proposed replacing the verb ‘to communicate’ with ‘to declare’.26 For its part, the UN delegation expressed its scepticism about the compatibility of these notions with the practice of the United Nations.27 In the ILC, Reuter and Ushakov proposed not to follow the suggestion of the German delegation.28 Still, only one year later, the ILC took the decision simply to use the verb ‘to express’ for representatives of both States and international organizations in order to simplify the formulation of the closing part of Article 7.29 During the Vienna Conference, the Polish delegation submitted a proposal to return to the verb ‘to communicate’ but this proposal did not enjoy any real support.30

C. Capacity to act without ‘powers’ Persons mandated for an ex officio representation of organizations 18. Regarding the issue of persons mandated with a capacity to represent their States, no major concern was expressed by the Special Rapporteur, the ILC, or the Diplomatic Conference. In fact they were ready to follow the direction shown by the custom-based formulas enshrined in the 1969 Convention.31 As the Special Rapporteur put it: (p. 152) This problem is, in fact, two-fold since it is necessary to know, first, which organ is competent to decide that an act relating to the conclusion of an agreement should be performed and, next, who is the natural person empowered to represent the organization in the performance of the act. The two problems may be reduced to one in the simplest cases, for instance when an act is statutorily the responsibility of the highest official of the international secretariat and when this official performs the act himself. But the situation is much more complicated in certain fairly common cases. In some cases, competence to perform a specific act is statutorily shared between several organs, or certain organs may request another organ of organization, or even an ad hoc organ, to act in their place; does this constitute a ‘delegation of authority’ or representation analogous to a ‘mandate’? Replies vary widely from one organization to another.32 19. In general terms, the issue of the determination of persons entitled to act in the name of an international organization became very delicate because organizations have no agents specializing in external relations grouped together under the authority of a senior official who is himself a specialist and is in turn subordinate to a supreme head, who, like a Head of State, has general powers of representation.33 The highest ranking officer of an organization is generally mandated to act in its name:

the permanence of his position, the weight of the international responsibilities he bears and his relative independence combine to give him a privileged situation in external relations; in all organizations he seems in fact to acquire a power of certification which is accepted as such by the partners of the organization, and by reason of his rank no certification is required for his own act.34 20. The structure of the draft Article proposed in 1975 by the Special Rapporteur follows that of the 1969 Convention very closely. It was in effect very near its final version, emphasizing the alternative character of full powers and the practice of States and organizations35 when the formulation became slightly more complicated. The reason for this was a proposition that the ‘adoption or authentication’ and ‘communication of consent’ ought to be dealt with separately and in two distinct paragraphs. Both of these proposals were accepted and were put in two distinct places36 in order to be ‘as flexible as possible and that authority should exist for a practice which is accepted by all concerned, namely that of making whatever arrangements are desirable’.37 In the Sixth Committee, several delegations proposed deleting the dichotomy (ie the references to adoption or authentification and the communication of consent). This suggestion was accepted by the Special Rapporteur,38 but the ILC nevertheless opted for the amended version.39 During the Vienna Conference, Austria,40 the United Kingdom, and Japan41 proposed once again a return to the simpler formulation of the 1969 Convention. Due to the efforts of an ad hoc group, this proposal was accepted and became the final version which was very close to what Reuter had proposed.42

(p. 153) Empowering according to the practice of the organizations 21. Reuter's original proposal was built up as an alternative and it referred to the fact that the capacity could be apparent ‘from the practice of the States and international organizations concerned or from other circumstances’.43 Later, it was slightly shortened and it referred to the appearance ‘practice or from other circumstances’.44 Nonetheless this formulation was considered ambiguous by the ILC in 1982 and its first part was changed by a reference to ‘from the practice of the competent organs of the organization’.45 In the course of the Diplomatic Conference, the International Atomic Energy Agency suggested adopting a mention of the pertinent rules of the organization.46 22. In general, some types of agreement are contracted without any a priori control of full powers, as the representative of the United Nations rightly emphasized at the Diplomatic Conference.47 23. Concerning the representation of the United Nations (or, indeed, most other organizations), it is almost always the Secretary General who exercises the right to sign treaties in the name of the organization without being obliged to produce full powers therefor. There is also a well-established practice according to which treaties of the United Nations are very often signed by heads of departments, offices, divisions, etc., it being understood that such officials may sign a treaty or an agreement binding the Organization provided they act within the area of competence with the express or implied authorization of the Secretary General. The considerable increase in the number of international treaties entered into by the United Nations and the fact that such treaties in most instances are not signed by the Secretary General explains that Governments sometimes have demanded that the representative of the United Nations present formal powers, and in such case formal powers have been issued by the Secretary General.48 24. During the Diplomatic Conference, the representative of the Organization of American States (OAS) emphasized that its practice was very similar to that of the UN.49 25. The same practice is followed more or less by the Council of Europe which reserves the right to sign treaties to the secretary general who can be substituted by his deputy, enjoying duly established full powers. One has to take into consideration that such a delegation of competences occurs very rarely, and the administrative agreements are usually negotiated and signed only by the directors who need not produce full powers to do so. 26. Moreover, it was underlined by the representative of the Council of Europe at the Diplomatic Conference that it would be unrealistic to require full powers if the (p. 154) conventional instruments take the form of an exchange of letters. The latter method is commonly used by international organizations.50 Accordingly, the Council of Europe concluded a number of treaties under this form with other organizations, such as the European Communities.51 27. The directors of external offices enjoy an important autonomy concerning the conclusion of private law and administrative agreements. Their capacity to sign such agreements is recognized both by the host State and certain organizations. Nevertheless, for the conclusion of treaties they should be equipped with full powers. 28. The person mandated for the negotiation (and in some cases also for the signature) of a treaty has sometimes been identified in a special resolution of the organization. This tends to happen when the person's name becomes known either formally or informally, usually through the press. In such a case, the preparation of full powers in ‘good and due form’ might seem superfluous, as was already noted by Paul Reuter in his Fourth Report.52 29. The final question remains, are there persons other than the secretary general or the director general who can act in the name of an organization without being obliged to produce full powers? 30. The answer is affirmative for the European Communities (and presently also the European Union). In the case of the former organization it is not the president of the Commission alone

who is responsible for portfolios dealing with foreign policy, but several other members of the Commission as well. This is true, for example, for the commissioner in charge of humanitarian cooperation, the commissioner responsible for contacts with candidate countries, and for the commissioner in charge of common foreign and security policy. Since the entry into force of the Treaty of Lisbon on 1 December 2009, the diplomacy of the European Union has already been personified by a quasi minister for foreign affairs, the High Representative of the Union for Foreign Affairs and Security Policy (currently Catherine Ashton, vice-president). But apparently, in the new system, too, other commissioners can be considered as being close to foreign policy and eventually to treaty-making, namely the Commissioner for Enlargement and European Neighbourhood Policy and the Commissioner for International Cooperation, Humanitarian Aid and Crisis Response. 31. The representation of organizations in some States, often through ‘missions’, is governed by the rules of the 1975 Vienna Convention and bilateral treaties. Ultimately, however, the basic principles of the 1961 Vienna Convention on Diplomatic Relations are mutatis mutandis applicable. That is why, even if Article 7 of the 1986 Convention does not so specify, one could admit by analogy that the representative of an organization has the right to negotiate a treaty with the host country without being obliged to produce full powers. However, in conformity with rules to be applied to the heads of diplomatic missions, signature should be preceded by verification of appropriate full powers. *

PETER KOVACS

Footnotes: 1 See the commentary on Art. 7 of the 1969 Convention in the present work. 2 Ibid. 3 PCIJ, Series B, no. 18. 4 Paul Reuter's First report on the question of treaties concluded between States and international organizations or between two or more international organizations, 3 April 1972, A/CN.4/258, YILC, 1972, vol. II, pp 173–4. 5 Ibid, p 196. 6 Ibid, p 176. 7 Paul Reuter's Fourth report on the question of treaties concluded between States and international organizations or between two or more international organizations, 21 March 1975, A/CN.4/258 and Corr. 1, YILC, 1975, vol. II, p 27. 8 Ibid, p 28. 9 Ibid, p 27. 10 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 and international organizations 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) 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 or of a treaty with that organization. 3.A person is considered as representing an international organization for the purpose of adopting or authenticating the text of a treaty or for the purpose of expressing the consent of the organization to be bound by a treaty if: (a) he produces full powers; or (b) it appears from the practice of the States and international organizations concerned or from other circumstances that their intention was to consider that person as representing the organization for such purposes and to dispense with full powers.

YILC, 1975, vol. II, p 28, op. cit. 11 Ibid, p 29. 12 Ibid. 13 See this issue in the relevant chapter of the present commentary. 14 YILC, 1975, vol. I, p 218, op. cit. 15 Ibid, p 219. 16 YILC, 1975, vol. II, p 28, op. cit.

17 Paul Reuter's Tenth report on the question of treaties concluded between States and international organizations or between two or more international organizations, 3–6 April 1981, A/CN.4/341 and Add. 1 and Corr. 1, YILC, 1981, vol. II, Part One, p 53. 18 Comments and observations of Governments and principal international organizations on Articles 1 to 60 of the draft Articles on treaties concluded between States and international organizations, or between international organizations, adopted by the Commission, A/CN.4/339 and Add.1–8, YILC, 1981, vol. II, Part Two, pp 185–7, 196–8. 19 A/CONF.129/C.1/L.16. 20 Official Records, Summary Records, 8th meeting, 25 February 1986, pp 75–81. 21 Ibid, 7th meeting, 25 February 1986, pp 68–75. 22 ‘4. From a strictly legal point of view, the terms “full powers” and “powers” had exactly the same content, as was the case with the terms “ratification” and “act of formal confirmation”. The terms were both used in State practice, but not in the same manner by all States. The differences arose largely because the terms were taken from internal law. It was of course important to remember that the adjective “full” did not relate to the extent of the powers or of the mandate of the representative but rather to the rank of the authority conferring the powers. A representative holding “full powers” did not have any greater powers than a representative holding “powers”. Regardless of the label, the extent of a representative's powers depended on the terms of his credentials. 5. That being so, it might be asked why the same term was not applied to credentials issued by a State and credentials issued by an international organization. The answer was that the terms used had a past and would no doubt have a future. The term “full powers” belonged to the tradition of Foreign Ministries and went back to the time when the person holding full powers had represented a monarch. In view of that tradition, one school of thought in the Commission had felt that the term “full powers” could only be associated with a State. In the compromise reached in the Commission, a concession had been made on the question of terminology, which did not materially affect the substance.’ Official Records, Summary Records, 7th meeting, 25 February 1986, pp 68–9, paras 4–5. 23 Official Records, Summary Records, 5th plenary meeting, 18 March 1986, p 12, para. 31. 24 Paul Reuter's Second report on the question of treaties concluded between States and international organizations or between two or more international organizations, 15 May 1973, A/CN.4/271, YILC, 1973, vol. II, p 84, para. 58; Paul Reuter's Fourth report, supra n 7, p 28. 25 YILC, 1975, vol. II, p 176; see Reuter's similar position vis-à-vis one of Ushakov's proposals at the 1345th meeting of the ILC: YILC, 1975, vol. I, pp 218–19. 26 A/CN.4/339 and Add.1–8, supra n 18, p 186. 27 Ibid, p 197. 28 Summary record of the 1646th meeting of 7 May 1981, YILC, 1981, vol. I, p 18, para. 50 and pp 18–19, para. 57. 29 Draft Articles on the law of treaties between States and international organizations or between international organizations with commentaries, adopted at the 34th session in 1982, YILC, 1982, vol. II, Part Two, p 27, paras 12–13. 30 Official Records, Summary Records, 8th meeting, 25 February 1986, p 76. 31 See the commentary on Art. 7 of the 1969 Convention in the present work. 32 YILC, 1973, vol. II, p 84, paras 56–7, op. cit. 33 Ibid, pp 84–5, para. 59. 34 Ibid, p 85, para. 61. 35 Paul Reuter's Fourth Report, supra n 7, p 28, para. 2. 36 YILC, 1975, vol. II, p 175, para. 1. 37 Ibid, p 176, para. 8. 38 YILC, 1981, vol. II, Part One, p 53, para. 37, op. cit. 39 YILC, 1982, vol. II, Part Two, p 27, paras 12–13, op. cit. 40 A/CONF.129.1/L.4. 41 A/CONF.129/C.1/L.26. 42 Official Records, Summary Records, 10th meeting, 26 February 1986, p 89. 43 YILC, 1975, vol. II, p 28, op. cit. 44 YILC, 1975, vol. II, p 175. 45 Draft Articles on the law of treaties between States and international organizations or between international organizations with commentaries, adopted at the thirty-fourth session in 1982, YILC, 1982, vol. II, Part Two, p 25. 46 A/CONF.129/5. 47 ‘They included, for instance, 90 standard technical assistance agreements concluded by the United Nations Development Programme, and in the 1950s a number of…countries…The list included assistance agreements concluded by the United Nations Children's Fund as well as agreements dealing with the organization of United Nations seminars and workshops’ (Official

Records, Summary Records, 7th meeting, 25 February 1986, p 73, para. 68). 48 Observations of the representative of the United Nations Organization in YILC, 1981, vol. II, Part Two, Annex II, p 197, op. cit. 49 See the intervention of the delegation of the OAS in Official Records, Summary Records, 8th meeting, 25 February 1986, p 76, para. 6. 50 See the intervention of Mr Ferdinando Albanese in Official Records, Summary Records, 7th meeting, 25 February 1986, p 72. 51 There were in fact three exchanges of letters between the two organizations, namely in August 1959, June 1987, and November 1996. See Jörg, Polakiewicz, Treaty-making in the Council of Europe (Strasbourg: Council of Europe, 1999), pp 57–8. 52 YILC, 1975, vol. II, p 29, para. 4(2), op. cit. * Judge at the Constitutional Court, Professor, Peter Pazmany Catholic University, Budapest, Hungary.

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Volume I, Part II Conclusion and Entry into Force of Treaties, s.1 Conclusion of Treaties, Art.8 1969 Vienna Convention Nicolas Angelet, Tamara Leidgens From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Treaties, conclusion — Customary international law — Treaties, entry into force — Treaties, invalidity, termination, suspension, withdrawal — Treaties, ratification — Lex lata

(p. 155) 1969 Vienna Convention Article 8 Subsequent confirmation of an act performed without authorization An act relating to the conclusion of a treaty performed by a person who cannot be considered under article 7 as authorized to represent a State for that purpose is without legal effect unless afterwards confirmed by that State. A. General features 155 Aim and scope 155 Customary status 156 B. ‘An act relating to the conclusion of a treaty’ 157 C. ‘An act performed by a person who cannot be considered under article 7 as authorized to represent a state for that purpose’ 158 D. An act performed without authorization is ‘without legal effect unless afterwards confirmed by that state’ 159 Absence of legal effect 159 Confirmation of the act performed without authorization 159 Authority entitled to confirm 159 Modes of confirmation 160 Effects of confirmation 160

Bibliography Agrawala, S. K., Essays on the Law of Treaties (Madras: Orient Longman, 1972), pp 10– 24 Blix, H., Treaty Making Power (London: Stevens & Sons, 1960), pp 7–16 and 76–82 Holloway, K., Modern Trends in Treaty Law (London, Stevens & Sons, 1967), pp 384–8 Sinclair, I., The Vienna Convention on the Law of Treaties (Manchester: Manchester University Press, 1973), pp 29–33

A. General features Aim and scope 1. Article 8 of the 1969 Vienna Convention refers to the hypothesis of an act relating to the conclusion of a treaty performed by a person who cannot be considered under Article 7 as authorized to represent a State for that purpose. It provides for, on the one hand, the absence of legal effect of such an act and, on the other hand, the possibility for the State concerned to remedy this lack of effect. 2. As the ILC pointed out, the situation envisaged by Article 8 is unlikely to occur frequently, but nevertheless examples exist in practice. The Commission cited an incident in 1908, where the Minister of the United States in Romania had signed an agreement without authorization. Also, in 1951, a representative of Norway signed a convention on (p. 156) behalf of Norway, but also on behalf of Sweden. In both cases, the treaty was subject to ratification and was subsequently ratified by the United States and Sweden, respectively, which thus confirmed the act performed without their authorization.1 These precedents indicated the need to consider this type of situation in the Convention on the Law of Treaties. 3. Article 8 states first of all that an act relating to the conclusion of a treaty performed by a person who cannot be considered under Article 7 as authorized to represent a State for that purpose is ‘without legal effect’. As Mr Ruda indicated in the ILC, such an act is not attributable to the State concerned.2 This State has not expressed its consent.3 In that respect, Article 8 is the corollary of Article 7, which defines the conditions under which a person is considered as representing a State for adopting or authenticating the text of a treaty or to express consent of the State to be bound by a treaty.4 Article 8 is part of Part II of the Convention on the conclusion and entry into force of treaties, and not of Part V, Section 2 of the Convention on the invalidity of treaties. The absence of legal effect under Article 8 should therefore be distinguished from the causes of invalidity contained in Articles 46 (‘Provisions of internal law regarding competence to conclude treaties’) and 47 (‘Specific restriction on authority to express the consent of a State’) of the Vienna Convention. Article 8 further provides that the unauthorized act, which was initially without legal effect, will nevertheless trigger such effects if subsequently confirmed by the State. This confirmation should be distinguished from the loss of the right to invoke a cause of invalidity of a treaty under Article 45 of the Convention. Confirmation pursuant to Article 8 is not a waiver of invalidity, but an act of recognition.

Customary status 4. As already indicated, incidents relating to acts of conclusion of a treaty performed without authorization are relatively rare.5 Practice more and more widespread is to submit draft conventions to the organ empowered to bind the State before any signature. Also,

governments are reluctant to disavow acts performed in their name and will often ensure that they are not brought to the attention of all, most often through the ratification of the treaty.6 This makes it extremely difficult to identify the practice on Article 8 and, therefore, a possible international custom in this area. 5. The first sentence of Article 8, according to which the act performed without authorization is without legal effect, is a corollary of Article 7,7 which embodies the rule that the acts performed by a person who is considered as representing a State for (p. 157) that purpose produce the legal effects contemplated. The customary nature of this rule inherent in Article 7 is not subject to doubt. Yet, this does not allow for concluding that Article 8 codifies a customary rule, in that it consecrates the absence of legal effects of the act rather than its invalidity. Neither does the US State Department's position that the treaty signed by the US Minister in Romania ‘departed so greatly from the instruments which he was authorized to sign as to make them valueless’,8 allow determination of whether this was a matter of invalidity or of absence of effect. During the preparatory works relating to Article 8, the need to repudiate the act performed without permission was raised,9 which does not match the absence of any legal effect. Indeed, the customary status of the rule consecrated in the first sentence of Article 8 calls for a nuanced appreciation. The first sentence of Article 8 notably governs the hypothesis of an act performed by an individual who does not represent the State in any capacity whatsoever, ie the event, however unlikely, of an act performed by an imposter. It is structurally necessary for international law that such an act is devoid of any legal effect. To this extent, the first sentence of Article 8 is necessarily part of the lex lata. However, Article 8 also covers more nuanced assumptions, where a State representative enters into a treaty in excess of his powers. In such a case, the absence of any legal effect postulated by Article 8 is not structurally necessary as in the former hypothesis. There would equally be room for sanctioning such a deficiency with the invalidity of the act, which does not rule out any legal effect whatsoever.10 Accordingly, it is uncertain whether the first sentence of Article 8 reflects customary law in all the hypotheses contemplated. The customary status of Article 8 is equally subject to doubt regarding confirmation and its effect over time. Confirmation under Article 8 is an act of recognition, which is unquestionably ruled by customary international law. Yet, while confirmation pursuant to Article 8 is retroactive by nature,11 it has been questioned whether recognition necessarily produces retroactive effects or whether its author may decide otherwise.12 Therefore, international custom might, unlike Article 8, satisfy itself with a validation producing its effects ex nunc.

B. ‘An act relating to the conclusion of a treaty’ 6. In its commentary on what was then draft Article 32, the ILC stated that the provision only relates to cases where a representative signs, without being empowered, a treaty that must acquire binding force upon signature.13 It restricted the concept of ‘acts relating to the conclusion of the treaty’, already present in the text of draft Article 8, to the signature expressing consent to be bound.14 In other cases, Article 8 would not (p. 158) apply because the State would repudiate the act done without its authorization,15 or would opt for ratification, acceptance, or approval of the treaty, thereby remedying the initial lack of authorization.16 However, this is contrary to the terms ‘conclusion of a treaty’ which, under the Convention, include the negotiation of the text, its adoption, its authentication, and the various modes of expression of consent to be bound.17 It also ignores the fact that ratification, acceptance, and approval do not replace the mechanism established by Article 8 but are, to the contrary, the ideal means to confirm most acts relating to the conclusion of a treaty which have been made without authorization.18 The confirmation of the signature through ratification also has a practical impact, since under Article 18 of the Convention, the signatory must refrain from acts which would defeat the object and the purpose of the treaty prior to its entry into force. In these circumstances, it must be concluded that Article 8 is applicable to all acts relating to the conclusion of a treaty, and is not confined to the case where consent to be bound is expressed by signature.

C. ‘An act performed by a person who cannot be considered under article 7 as authorized to represent a state for that purpose’ 7. Article 8 refers to the act performed by a person who cannot be considered as authorized to represent a State for this purpose under Article 7. This formulation makes clear that, although the ILC referred to the representative's original lack of authority',19 Article 8 includes the hypothesis of a person not endowed with the quality of State representative in any capacity whatsoever. Article 8 also applies to acts performed by a person who qualifies as a representative of the State for certain purposes, but not including the act effectively performed. This raises the question of the respective scope of Articles 8 and 47. The latter, which establishes a cause of invalidity, states that: 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. Article 47 applies when a State has granted the power to express its consent to be bound by a particular treaty to a specific person, but has made this power subject to certain restrictions. These restrictions will not be opposable by the other States, unless they have been previously reported to them. In contrast, in the case of a representative having no power to express the

consent of the State to be bound by a particular treaty under Article 7 of the Convention, Article 8 will apply.

(p. 159) D. An act performed without authorization is ‘without legal effect unless afterwards confirmed by that state’ Absence of legal effect 8. Article 8 provides that the act performed by a person who cannot be considered under Article 7 as authorized to represent a State for that purpose is ‘without legal effect’. The ILC's position notwithstanding,20 the absence of legal effect must be distinguished from repudiation, which aims at depriving an act of legal consequences that would have otherwise occurred. Also, the absence of legal effect implies that the act does not benefit from any presumption of validity.21 Further, the rule in the first sentence of Article 8 distinguishes itself from the causes of invalidity, including that contained in Article 47 of the Convention mentioned supra.22 This distinction between absence of legal effect and invalidity is particularly close, if not identical, to that between non-existence and invalidity of the act.23 It manifests itself, first of all, in that a finding of invalidity is submitted by the Convention to procedural requirements set out in Articles 64 and following, which do not apply to Article 8. Further, under Article 69, the treaty invalidated is not radically denied any legal effect. However, from that point of view, the distinction made by the Convention is not entirely stringent, since Article 51 of the Convention, among the causes of invalidity, states—like Article 8—that the expression of a State's consent to be bound by a treaty which had been procured by the coercion of its representative ‘shall be without any legal effect’.

Confirmation of the act performed without authorization 9. The act performed without the authorization of a State is without legal effect ‘unless it is subsequently confirmed by that State’. It is the confirmation that triggers the legal effects of the unauthorized act. It is therefore necessary to determine the authority entitled to confirm such an act; the modes of confirmation; and finally the effects of confirmation, especially in view of the principle of non-retroactivity.

Authority entitled to confirm 10. Article 8 of the 1969 Convention does not designate the authority entitled to confirm the act performed without the authorization of the State. In this respect, the Chairman of the Drafting Committee stated that: (p. 160) It was the State itself that determined the authority competent to perform a certain act. To say that confirmation must be by a State was the same as saying that it must be by the authority that the State considered competent for that purpose, but there was no necessity to specify that in the text.24 This amounts to saying that it is domestic, not international, law which determines the authority entitled to confirm the unauthorized act.25 This, however, does not result from the terms of Article 8, which is silent on this point. Rather, every person regarded as a representative of the State under Article 7 is entitled to confirm the act performed without the authorization of the State. The possibility of an implicit confirmation leads to the same conclusion,26 as confirmation could hardly be inferred from the conduct of the State if it was for the State alone to determine the authority entitled to perform the act of confirmation.

Modes of confirmation 11. Article 8 does not require that confirmation be made expressly. At the Vienna Conference, a draft amendment of Venezuela27 requiring express confirmation was rejected.28 The majority followed the ILC, arguing that a State shall be deemed to have ‘implicitly’ confirmed the act by relying on the provisions of the treaty or by conducting itself in a way which implies recognition of the act performed without its authorization.29 In this respect, Article 8 differs little from Article 45 of the Convention, stating that a State can no longer invoke a cause of invalidity if, after becoming aware of the facts, that State explicitly agreed that the treaty is valid or shall, by reason of its conduct, be considered as having acquiesced to its validity. True, unlike Article 8, Article 45 stipulates that the conduct of the State may cause the loss of its right to invoke the invalidity of the treaty only if it had prior knowledge of the facts causing the invalidity. However, while this requirement is undoubtedly appropriate, for example if the State representative is corrupt (Art. 50), it seems quite irrelevant when the representative failed to comply with restrictions on his powers (Art. 47). As already indicated, the latter provision relates to the scope of the treaty commitment, which the State concerned could hardly be unaware of. Similarly, with respect to Article 8, there is little room for a State confirming an act related to the conclusion of a treaty performed by an unauthorized person, without being aware of this lack of authorization. Therefore, the difference between the regimes of Article 8 and Article 45 seems to be of very limited practical significance.

Effects of confirmation 12. Article 8 provides that the act performed by an unauthorized person ‘is without legal effect unless’ it is afterwards confirmed. This implies that the act confirmed takes effect (p. 161) ex tunc, as if it had initially been performed by an authorized person. At the Vienna Conference, Bulgaria argued to that effect that ‘the confirmation should take effect from the time when the act had been performed without the requisite authority’.30 Similarly, the

Australian representative stressed that ‘the act confirmed…operate ex tunc, whether confirmation was express or implied’, adding that ‘when a State confirming the act performed, stipulated that the effective date should be the date of confirmation, that would amount to a new act’.31 These statements did not spark any debate. In that it confers retroactive effects to the act of confirmation, Article 8 thus derogates from the principle of non-retroactivity.32 In practical terms, this retroactive effect requires that confirmation pursuant to Article 8 be used with caution. The State having confirmed an act performed without its authorization could be held liable for non-compliance with its treaty obligations during the period of time between the unauthorized act and the confirmation. When this risk cannot be ruled out, it is preferable to renew the act performed without authorization or to accomplish another act, such as accession to the treaty. *

NICOLAS ANGELET

 TAMARA LEIDGENS **

References

Footnotes: 1 Report of the ILC to the General Assembly, YILC, 1966, vol. II, pp 193–4, para. 2. 2 See the intervention of Mr Ruda (Argentina), Official Records, 1st session, 14th meeting, A/CONF.39/C.1/SR.14, p 77, para. 24. 3 Draft Articles on the law of treaties, adopted by the ILC during the 18th session, YILC, 1966, vol. II, pp 193–5. Re-printed in Official Records, 1st and 2nd sessions, pp 13–15. 4 Review by the ILC of the text of the Articles proposed by the Drafting Committee, YILC, 1966, vol. I, Part One, 840th meeting, p 115; I. Sinclair, The Vienna Convention on the Law of Treaties (Manchester: Manchester University Press, 1973), p 31. 5 H. Blix, Treaty Making Power (London: Stevens & Sons, 1960), p 15; I. Sinclair, supra n 4, p 31; K. Holloway, Modern Trends in Treaty Law (London, Stevens & Sons, 1967), pp 386–8. 6 K. Holloway, supra n 5, p 386. Such was the case of Sweden, which ratified a convention signed on its behalf by the representative of Norway without being authorized to do so. 7 Review by the ILC of the text of the Articles proposed by the Drafting Committee, YILC, 1966, vol. I, Part One, 840th meeting, p 115; I. Sinclair, supra n 4, p 31. 8 Digest of International Law, vol. IV (Washington DC: United States Government Printing Office, 1942), p 467. 9 See Report of the ILC to the General Assembly, YILC, 1966, vol. II, p 194, para. 3. 10 See infra para. 8. 11 See infra para. 12. 12 I. Brownlie, Principles of Public International Law (5th edn, Oxford: Oxford University Press, 1998), p 93. 13 Report of the ILC to the General Assembly, YILC, 1963, vol. II, p 193. Along the same lines, see eg L. Oppenheim, International Law, vol. I (9th edn, Harlow: Longman, 1992), p 1222. 14 See the amendment proposed by the United States, A/CONF.39/C.1/L56 in Official Records, 1st session, 14th meeting, p 76, para. 4. This amendment was rejected following an intervention by Switzerland: see the intervention of Ms Pometta in Official Records, A/CONF.39/C.1/SR.14, 1st session, 14th meeting, p 78, para. 31. 15 See infra para. 8. 16 Id. 17 Article 7 and Arts 9 to 11 of the Vienna Convention. See also P.-M. Dupuy, Droit international public (5th edn, Paris: Dalloz, 2000), p 243. 18 See M. N. Shaw, International Law (4th edn, Cambridge: Grotius, Cambridge University Press, 1997), p 637. 19 Draft Articles on the law of treaties, adopted by the ILC during the 18th session, YILC, 1966, vol. II, pp 193–4, para. 3. Reprinted in Official Records, 1st and 2nd sessions, p 14 (commentary on draft Art. 7, para. 3: ‘the representative's original lack of authority’). 20 Report of the ILC to the General Assembly, YILC, 1966, vol. II, p 194, para. 3: ‘the State shall be entitled to repudiate the act done without his authorization’. 21 Cf the pleadings by Guinea-Bissau and Senegal before the ICJ in the Case concerning the Arbitral Award of 31 July 1989 and in particular Mr Migue Lavao Teles (C.R. 91/3 of 4 April 1991, p 30), Mr Highet (loc.cit., pp 62 ff ), and Mr Bowett (C.R. 91/5 of 8 April 1991, p 11). 22 See commentary on Art. 7 in the Report of the ILC to the General Assembly, YILC, 1966, vol. II, pp 193–4; see also Art. 4bis proposed by the Drafting Committee, YILC, 1966, vol. I, Part One, 840th meeting, p 115 and the interventions of Ruda (Argentina), Mr Manouan (Dahomey), and Mr Tarazi (Syria), in Official Records, 1st session, 14th meeting, A/CONF.39/C.1/SR.14, respectively at p 77, paras 24–5, p 78, paras 28–30, and p 78, paras 34– 6. 23 This distinction, advocated by Guinea-Bissau, was resumed, but not explicitly validated by the ICJ in the Case concerning the Arbitral Award of 31 July 1989 (Guinea-Bissau v Senegal), Judgment of 12 November 1991, ICJ Reports 1991, pp 63 ff, paras 30 ff. The relevance of this distinction in international law was challenged by some (ie J. L. Brierly, ‘The Hague Conventions and The Nullity of Arbitral Awards’, BYBIL, 1928, pp 114 et seq.), but validated by others (P. Guggenheim, ‘La validité et la nullité des actes juridiques internationaux’,

RCADI, 1949–I, vol. 74, pp 203 ff). 24 See the intervention of Mr Yasseen in Official Records, 2nd session, 8th meeting, A/CONF.39/SR.8, p 17, para. 62. 25 Along the same lines, see Second Report on Unilateral Acts of States, A/CN.4/500/Add.1, p 8 (para. 103); P.-M. Dupuy, supra n 17, p 236. 26 See infra para. 12. 27 A/CONF.39/C.1/L.69, presented by Venezuela. 28 Interventions of Mr Strezov (Bulgaria), Sir Lalita Rajapakse (Ceylon), Mr Mutuale (Democratic Republic of Congo), Mr Krispis (Greece), Mr Virally (France), and Mr Harry (Australia), in Official Records, 1st session, 14th meeting, A/CONF.39/C.1/SR.14, respectively at pp 76–7, paras 11–13; p 77, para. 14; p 77, para. 18; p 77, para. 21; p 79, para. 48; pp 79– 80, para. 49. 29 Commentary to Art. 7 in the Report of the ILC to the General Assembly, YILC, 1966, vol. II, pp 193–4; Commentary to Art. 7: Subsequent confirmation of an act performed without authority in Official Records, 1st and 2nd sessions, p 13. 30 Mr Strezov (Bulgaria) in Official Records, 1st session, 14th meeting, A/CONF.39/C.1/SR.14, respectively at p 77, para.12. 31 Mr Harry (Australia) in Official Records, 1st session, 14th meeting, A/CONF.39/C.1/SR.14, p 80, para. 49. 32 Cf Ambatielos case (Jurisdiction), Judgment of 1 July 1952, ICJ Reports 1952, pp 28, 40. * Professor, Université Libre de Bruxelles (ULB), Centre de droit international et de sociologie appliquée au droit international; Attorney at the Brussels Bar, Brussels, Belgium. ** Attorney at the Brussels Bar, Brussels, Belgium.

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Volume I, Part II Conclusion and Entry into Force of Treaties, s.1 Conclusion of Treaties, Art.8 1986 Vienna Convention Nicolas Angelet From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Treaties, conclusion

(p. 162) 1986 Vienna Convention Article 8 Subsequent confirmation of an act performed without authorization An act relating to the conclusion of a treaty performed by a person who cannot be considered under article 7 as authorized to represent a State or an international organization for that purpose is without legal effect unless afterwards confirmed by that State or that organization. 1. Article 8 of the 1986 Convention is not substantially different from the corresponding Article of the 1969 Convention.1 It did not give rise to any observation, whether from governments or major international organizations, and was adopted without a vote at the Vienna Conference.2 *

NICOLAS ANGELET

Footnotes: 1 Question of treaties concluded between States and international organizations or between two or more international organizations, A/CN.4/285, YILC, 1975, vol. II, p 25. 2 Text proposed by the Drafting Commitee, A/CONF.129/SR.5, 5th meeting, p 12, para. 37. * Professor, Université Libre de Bruxelles (ULB), Centre de droit international et de sociologie appliquée au droit international, Attorney at the Brussels Bar, Brussels, Belgium.

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Volume I, Part II Conclusion and Entry into Force of Treaties, s.1 Conclusion of Treaties, Art.9 1969 Vienna Convention Maurice Kamto From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — State practice — Customary international law — Responsibility of states — UNCLOS (UN Convention on the Law of the Sea)

(p. 163) 1969 Vienna Convention Article 9 Adoption of the text 1. The adoption of the text of a treaty takes place by the consent of all the States participating in its drawing up except as provided in paragraph 2. 2. The adoption of the text of a treaty at an international conference takes place by the vote of two thirds of the States present and voting, unless by the same majority they shall decide to apply a different rule. A. General characteristics 163 History, purpose, and goal 164 Customary status 165 B. Adoption 167 Unanimity 167 Two-thirds majority 168 Other adoption procedures 171 C. Legal consequences of adoption 173 Date of adoption 173 Legal effect of adoption 175

A. General characteristics 1. One may think that the drawing-up of Article 9, which seems to be a purely technical provision centred, at first sight, more on the procedure than on the merit, did not raise major difficulties within both the ILC and the Vienna Conference on the Law of Treaties. Similarly, adoption is generally treated as a minor subject by the actors, thereby confirming the impression that it does not raise particular legal problems.1 Generally, works on general international law or on the law of treaties incorporate adoption either in the negotiation and drawing-up of a treaty,2 or in the more general ‘conclusion procedures’ column.3 2. Actually, the drawing-up of provisions on the adoption of the text of a treaty gave rise to serious debate within the ILC and the Vienna Conference.4 After long discussions (p. 164) and several amendments,5 Article 9—then draft Article 8—was adopted in plenary session on 29 April 1969 by 91 votes cast against 1 and 7 abstentions.6 As the USSR representative to the Vienna Conference recalled, the text of Article 8 on the adoption of the text of a treaty was the result of long and tedious work by the Commission, and expresses a general consensus.7 The term ‘drawing-up’ was even adopted by the Drafting Committee of the Conference8 instead of the word ‘drafting’ which was found in the ILC draft.9

History, purpose, and goal 3. The stage of the adoption of the text of a treaty was envisaged from the beginning of the process of codification of the law of treaties. However, the idea was not clearly expressed as a specific notion with a distinct draft Article. The term ‘adoption’ was not even used by the first Special Rapporteurs. Rather, the term ‘establishment’ was used, and to mean ‘authentication’. Both terms were even used interchangeably. 4. During the first discussions in 1950 on the First Report on the law of treaties, Brierly pointed out that the Special Rapporteur had not tackled the adoption of the text of a treaty.10 In fact, the issue was touched upon lightly, although very vaguely, in the context of discussions on draft Article 1 entitled ‘Authentication of texts of treaties’. The text drawn from the Draft Convention on the law of treaties drawn up by the University of Harvard in 1935 was as follows: ‘[i]n the absence of an agreement upon a procedure which dispenses with the necessity for signature, a treaty must be signed on behalf of each of the States concluding it’.11 Discussions revealed that the term ‘conclusion’ had a wide meaning, although confusing, including adoption and entry into force. Brierly clearly indicated that in the term ‘conclusion’, two phases had to be distinguished: the establishment of the text and its entry into force. He further indicated that to him, ‘to conclude’ meant in this case, ‘to establish a text’.12 5. The following two Special Rapporteurs, Sir Hersch Lauterpacht and Sir Gerald Fitzmaurice, held the same approach. In the First Report by Sir Gerald Fitzmaurice in 1956, paragraph (c) of draft Article 13 on ‘definitions’ under Part A entitled ‘Formal General Validity Conditions’ begins as follows: ‘ “establishment” or “authentication” shall mean…’.13 Meanwhile, Part B was entitled ‘Negotiation, drafting and establishment (authentication) of the text’.14 In other words, ‘establishment’ here was considered a synonym for ‘authentication’. Conversely, draft Article 18 was entitled ‘Establishment and (p. 165) authentication of the text’ and the first part of its paragraph 1 began as follows: ‘[t]he final establishment ne varietur, of the text of a treaty and its authentication take place according to one of the following terms and conditions:…’.15 Here, ‘establishment’ was a different formality from ‘authentication’. 6. The term ‘adoption’ appears for the first time in the First Report by Sir Humphrey Waldock in draft Article 5.16 It also features in the 1959 ILC Report to the United Nations General

Assembly within the framework of draft Article 6 entitled ‘Drafting and Adoption of the Text’, where it is treated in paragraph 4,17 and later in the 1962 Report under draft Article 6.18 Its numbering changed to Article 8 in the 1965 Report and further changed to Article 9 in the final text adopted at the first session of the Vienna Conference in 1968.19 7. Article 9 expresses the idea that States participating in the drawing-up of a treaty must determine the final text on which they have agreed. Adoption is the final establishment, ne varietur, of the text of a treaty. It consists in the ‘final determination’ of the text negotiated by the State participants and generally drawn up by a Drafting Committee set up to that effect by those States. Once adopted, the text of the treaty may not be amended, except in cases of material error or correction purely of form. At the most, the extent of one or the other of its provisions may be amended only through reservations, at the time of expression of final approval. As R. Ago indicated in the ILC discussions in 1975 on the corresponding draft Article in the text on the law of treaties between States and international organizations, the aim of Article 9 of the 1969 Convention is to introduce among others, an exception to this rule for treaties adopted at an international conference.20 Adoption of a text does not aim to bind States altogether,21 but to bind them to the content of the text adopted. It therefore aims to ‘lay down the form and content of the treaty envisaged’.22 However, by adoption, a State expresses its first consent to the provisions of the treaty although such provisions ‘become binding to it only after its expression anew of its consent by signature, ratification, approval or acceptance’.23 8. On the whole, the aim of Article 9 is to establish rules to govern the adoption of the text of a treaty and which rules, in addition to their purely technical nature, raise serious issues, as discussed infra.

Customary status 9. The (possible) customary status of the rules applicable to the adoption of the text of a treaty was not directly discussed by the ILC. However, some members of the Commission (p. 166) expressed their views on the issue. One clearly has to distinguish between the adoption of bilateral treaties and the adoption of multilateral treaties. 10. For bilateral treaties, adoption by unanimity undeniably falls under customary law. It cannot be otherwise for the absence of unanimity would make the adoption of a treaty by the two parties impossible. The same situation does not apply to multilateral treaties especially when adopted within the framework of an international conference. At the 1969 Conference on the Law of Treaties, the representative of the United Nations Secretary-General questioned whether the rule of the majority provided for the adoption of the text of a treaty at an international conference was in conformity with the general practice of international organizations.24 On the same occasion, the representative of Iraq declared that the rule of the two-thirds majority, in comparison with the traditional rule of unanimity, is an essential element in the progressive development of international law and must as such be observed and preserved.25 11. Some authors hold that until the advent of the League of Nations, unanimity was the rule: decisions at international conferences were taken by the consent of all States taking part in the conference.26 12. In fact, the evolution of the practice in that respect has been very confusing. Before the First World War, decisions were taken by majority vote within international organizations that were then cropping up, notably international unions such as the Universal Postal Union set up by the Bern Convention of 8 October 1874.27 Besides, not only did the whole convention have to be read as understood by an absolute majority of votes (Art. 26(3) of the Convention of 26 May 1906) but it is also noteworthy that a State was bound to modify its tariff against its wish where the majority so decided (Art. 7 of the Convention of 5 March 1902). Both the International Labour Organization (ILO) (see Art. 403 of the Treaty of Versailles) and the Permanent Court of International Justice (see Arts 55 and 57 of the Rules and Regulations of the International Permanent Court of Justice)28 approved the rule of decision by majority. This rule was adopted stricto sensu in international conferences although it was resisted by partisans of the old tradition of unanimity.29 A ‘cold war’ pitted the old rule against the new trend at The Hague Conference in 1907 as illustrated by the radically opposed standpoints taken respectively by Huber and Zorn, both delegates to the Conference. If, according to Huber, each State had maintained its ‘veto right’ against the adoption of a resolution by a majority vote, according to Zorn, it would be admitted that resolutions taken by a practically unanimous vote would have been considered as Conference resolutions without knowing what practical unanimity meant.30 The 1930 Conference on the codification of international law is unequivocal on the subject. Article XXIII of the Conference rules clearly states that the Conference ‘adopts by simple majority of votes cast by the delegates present at the session where the vote takes place, draft conventions and memoranda, recommendations and opinions of the Commission’. However, the evolution was not straightforward. The (p. 167) League of Nations Covenant,31 for example, that had maintained the principle of decision by unanimity on major issues, swerved by refusing to uphold the principle of decisions by two-thirds majority of States taking part in an international conference. Therefore, this rule is the result of a wavering evolution and development of institutional forms of the international society. As a matter of fact, the rule of two-thirds majority was the practice at the United Nations at the time of the Vienna Conference on the law of treaties. It was used to adopt the 1969 Convention. It has become the rule for conferences convened under the aegis of the United Nations32 and it is generally the current practice at major international conferences, as was remarked on by Humphrey Waldock, consultant at the Vienna Conference.33

References 13. In conclusion, adoption has come up belatedly in matters relating to the drawing-up of international treaties and the codification of the law of treaties by the ILC that did not discuss the possible customary nature of the rules applicable to this subject matter. Although adoption by unanimity of bilateral treaties is undeniably a rule of customary law, the same does not hold for the rule of majority vote applicable to the adoption of multilateral treaties within the framework of international conferences.

B. Adoption 14. Article 9 expressly provides for two rules applicable for the adoption of a treaty: unanimity and two-thirds majority. However, paragraph 2 of this Article provides an opening: the two-thirds majority applies unless the States ‘decide by the same majority to apply a different rule’. Such opening has made the development of the practice of consensus possible.

Unanimity 15. Article 9(1) provides for the rule of unanimity which requires ‘the consent of all the States participating’ in the drawing-up of a treaty for adoption. The wording ‘consent of all the States participating’ has replaced the previous wording ‘unanimous consent of States participating’34 following an amendment proposal by Austria and adopted by the Drafting Committee of the Vienna Conference. The rule of unanimity considered as ‘customary’ or described as a ‘classical procedure’35 applied and still applies to both bilateral treaties and treaties adopted by an international conference comprising a small number of States participants. 16. In fact, the clause ‘all the States participating in its drawing-up’ in Article 9(1) shows that the rule of unanimity applies not only to the adoption of treaties drawn up by two States— otherwise it would have clearly indicated so—but also to treaties drawn up by a small number of States in circumstances other than an international conference.36(p. 168) According to the ILC Report of 1962 to the UN General Assembly: ‘[t]here are bilateral treaties and some multilateral treaties concluded between a small group of States other than within an international conference. For such treaties, unanimity remains the rule’.37 The Commission was much clearer in its 1966 Report to the General Assembly: ‘[u]nanimity remains…the rule as concerns bilateral treaties or treaties concluded between a small number of States’.38 The US Representative to the Vienna Conference held the same opinion.39 17. The absence of unanimity would therefore paralyse the adoption of such treaties. Stalemates would be frequent and unavoidable if unanimity was a general and absolute rule for the adoption of all treaties whatever the number of States participating in their drawingup. Article 9(2) therefore provides an opening for other hypotheses.

Two-thirds majority 18. The rule of two-thirds majority provided for in Article 9(2) applies to multilateral treaties adopted at an international conference. This provision was discussed at length at the Vienna Conference. As already mentioned supra,40 the Representative of the UN Secretary-General wondered whether draft Article 8 was in conformity with the general practice of international organizations. Besides, he indicated that Article 8(2) was purely procedural in nature.41 Japan, in its remarks of 1965 on this Article, considered that it fell under the internal rules and regulations of conferences rather than under the procedure for the conclusion of treaties; and that such issues should be left for conferences or interested States to decide upon.42 In any event, the rule of two-thirds majority was and is still the practice at the United Nations.43 According to some contributors, this practice is globally followed in contemporary international relations44 and constitutes an increasingly general and irreversible trend.45 The real problems were elsewhere. 19. At the first session of the Vienna Conference, France declared that it was necessary expressly to mention ‘select multilateral treaties’ because of the very special nature of such agreements. France based this argument on the fact that the ILC had taken such treaties into account while drafting Article 17(2) relating to reservations. The rule of two-thirds majority applicable to treaties adopted at an international conference could not be (p. 169) applicable to select multilateral treaties to which the rule of unanimity was applicable.46 This amendment proposed by France was very similar to the amendment by Ukraine. The latter suggested a new wording of paragraph 2 as follows: ‘[t]he adoption of the text of a general or other multilateral treaty, to the exclusion of select multilateral treaties, takes place by the vote of two thirds majority of the States…’.47 20. Although the amendment by Ukraine was supported by many countries of Eastern Europe,48 the US representative felt that the amendment proposed by France was not really necessary because, by virtue of paragraph 2, the conference that adopts the treaty may, by a vote of two-thirds majority, decide to apply the rule of unanimity especially for select multilateral treaties.49 During the second session of the Vienna Conference, France finally withdrew this amendment, considering that it was for the interested States to insert in their treaties, provisions that take into account the special nature of select multilateral treaties.50 21. Although the discussion ended at the Conference, there is still a problem of the reading of paragraph 1 and paragraph 2 of Article 9. In fact, there is no clear distinction between the hypothesis covered by paragraph 1 and paragraph 2.51 In line with the remarks made by Luxembourg in 1965 on the provision that later became Article 9, it is difficult to imagine that a multilateral treaty, even between a small group of States, could be concluded outside an

‘international conference’; that is, ‘a meeting in one form or another, between representatives from several governments’.52 This same concern led Australia and many other delegations to propose to the Vienna Conference the insertion of the wording ‘general international conference’ in paragraph 2,53 thereby opening the way for the interpretation of paragraph 1 as applicable, other than to bilateral treaties, to select multilateral treaties or adopted within the framework of a regional conference. Even the ILC recognized the problem. According to the consultant to the Conference, the Commission had for a long time examined the possibility of subdividing multilateral treaties into two or more categories. Sir Humphrey Waldock, and his predecessor Sir Gerald Fitzmaurice, had both introduced the notion of ‘multilateral’ treaties in some of their work, but abandoned it for lack of a suitable definition of such treaties and the ILC's (p. 170) failure to provide criteria for distinction between different categories of multilateral treaties.54 In the absence of such distinction, one may be tempted to conclude that the rule of unanimity provided for in paragraph 1 applies only to bilateral treaties, the adoption of all types of multilateral treaties being governed by paragraph 2. 22. But, as the ILC had always indicated in its commentary on the draft Article on adoption, the rule of unanimity ‘shall apply mainly to bilateral treaties and treaties drawn up by only a small number of States’.55 The commentary continues as follows: Paragraph 2 concerns treaties whose text is adopted by an international conference, and the Commission has been wondering whether there is need to drawn a distinction between conferences convened by the interested States and those convened by an international organization…The Commission therefore concluded that whether at a conference convened by the States themselves or by an organization, the States represented at the conference shall decide on the rule of the vote applicable for the adoption of the text.56 23. Therefore, although it is ‘very difficult to define an international conference’, the Vienna Conference consultant clearly stated that paragraph 2 not only concerns major international conferences and especially those convened by international organizations, but also conferences in which a relatively small number of States participate. According to Waldock, the ILC ‘considered that the criterion of adoption was more of the number of States participating in the conference than the nature of the treaty itself’.57 Such was the solution reached by the Conference, for Article 9 was adopted without any distinction between the types of conferences or the categories of multilateral treaties. 24. Moreover, this solution proposed by the ILC for lack of a better one—the Commission even thought at some point that it should not provide for any rule on adoption except to declare in very general terms that the interested States have a right to choose a rule58—does not make it possible to differentiate between paragraph 1 and paragraph 2 concerning the rule applicable to the adoption of treaties drawn up by a small number of States or a select international conference. One can therefore see the importance and practical use of the preparatory work without which Article 9 of the Vienna Convention of 1969 would have been a source of serious confusion. 25. Article 9(2) further raises the problem of the principle of two-thirds majority.59 Does this refer to the majority of ‘States participating in the conference’ or of ‘States present and voting’? 26. The ILC retained the wording ‘States participating in the conference’, because in its view, the interest of minority groups was thus taken into account. At the Vienna (p. 171) Conference, many States criticized this wording on the basis that it was likely to compromise the future development of adoption of multilateral treaties.60 According to the Uruguayan delegate, the wording was too rigid. Moreover, it was contrary to the provisions of the United Nations Charter and practice as well as to the practice followed in all codification conferences. In addition, it was likely to paralyse conferences by voluntary or involuntary absenteeism.61 It was therefore preferable to use the terms ‘States present and voting’, as Sir Francis Vallat remarked in the following words: It would rather be strange that after having adopted, in its internal rules and regulations, the rule of two thirds majority of States present and voting, this Conference establish a stricter rule for future conferences.62 An amendment was even tabled proposing the wording ‘States present and voting at the time of polling’ for perfect clarity.63

References 27. In fact, the ILC was open-minded on the issue. By using the wording ‘participating in the conference’, the ILC ‘did not want to formulate a rigid provision requiring the consent of all the States participating in the conference’.64 While paragraph 1 provides for an unchanging rule, paragraph 2 merely lays down a ‘back-up rule so that any conference that begins its works without internal rules and regulations may find in this rule, a ready-made procedure’.65 The back-up nature of the rule of two-thirds majority is confirmed by the opening it provides in the last part of paragraph 2 through the wording ‘unless the States decide by the same majority to apply a different rule’. 28. The Vienna Conference therefore had to decide on this issue which was obviously a substantive issue.66 The Conference consultant clearly stated that abstentions should not be taken into account in calculating the two-thirds majority. This means that the wording ‘States present and voting’ should be understood with a very restricted meaning. 29. This interpretation is confirmed in practice. More or less recent important treaties drawn

up by major international conferences such as the Third United Nations Conference on the Law of the Sea (Convention of 10 December 1982), the Rio Conference on the Environment (Convention of 4 June 1992 on biodiversity), and the Diplomatic Conference of Rome (Convention of 17 July 1998, Statute of the International Criminal Court) were adopted by twothirds majority of States present and voting, without taking abstentions into account.

References

Other adoption procedures 30. Ceylon had proposed the addition to Article 9 of a paragraph 3 on the adoption of the text of a treaty by an international organization. It proposed that such a treaty be adopted by an act of a competent organ of the organization, in accordance with its rules and regulations.67 This was merely an attempt to reintroduce into the Article on adoption (p. 172) a paragraph that was already in the ILC draft of 1965,68 and that the Commission had abandoned.69 The Plenary Commission of the Vienna Conference, at its 91st plenary session, decided to submit the amendment to the Draft Committee which rightly rejected it on the basis that it was neither necessary nor useful given that the issue it dealt with was already provided for in Article 4 which contains a general reservation on the practice of international organizations.70 31. One may note that the current practice at the United Nations is for a treaty to be adopted through a resolution of the General Assembly71 or in other international organizations by a decision of the competent organ.72

References 32. Although Article 9 does not cover the adoption of a treaty based on the rules of an international organization, this is not the case with consensus. This practice gained a major impetus after the Vienna Conference on the Law of Treaties and even more following the Third United Nations Conference on the Law of the Sea.73 This practice should not be confused either with the rule of unanimity, in spite of the resemblance between the two,74 or with the rule of the majority. The Director General of the Legal Division of the United Nations explained that the term ‘consensus’ was used by the organs of the United Nations to refer to a practice which consists in striving to reach a unanimous agreement. Where this was impossible, those who disagreed with the general trend simply expressed their position or objections and had it recorded in the report.75 33. This original practice was developed because of the large number of States participating in codification conferences. Two practices exist: the ‘consensus sine qua non’ or imperative consensus, on the one hand, which is indispensable for the adoption of a text, and the ‘probable consensus’, or consensus as the norm without which the text can be ratified by a qualified majority (generally two-thirds). However, although consensus tends nowadays to be standard procedure for the adoption of resolutions by the General Assembly and declaratory texts in international organizations, it is used in treaties as a technique for the negotiation and adoption of provisions of a treaty of which the final text shall be adopted based on the rule of the qualified or unqualified majority as the case may be. This was the case with the drawingup of the Rome Convention of 17 July 1998 on the Statute of the International Criminal Court the provisions of which were negotiated on the basis of consensus, even though the final document was put to the vote at the request of the US delegation—and adopted by a crushing majority.

References (p. 173) 34. It may also happen that a treaty is adopted without a vote. But this does not always imply that the procedure of consensus was applied. This approach was used during the Conference on the Extension of the Nuclear Arms Non-Proliferation Treaty.76 In the light of such practices, the last part of Article 9(2) undoubtedly becomes more meaningful. 35. Does the use of the practice of consensus in international conferences not reveal the prevalent latency of unanimity as well as a desire to ensure that a treaty adopted on the basis of this enjoys universal participation? This practice is equally paradoxical: the apparent unanimity ensured by consensus conceals the conflicting positions which generally reappear at the time of signature and, even more, of ratification of the treaty adopted based on this procedure.

C. Legal consequences of adoption 36. Does the adoption of the text of a treaty have any legal effect? Reviewing this issue, which is not considered at all by Article 9 and to which only the commentary of the ILC provides a possible answer, requires that the issue of the relevant date on which it should be considered that a treaty was adopted be solved.

Date of adoption 37. Should the treaty carry the date of adoption or that on which it was opened for signature? This issue is of practical interest given that the determination of the relevant date may serve, in certain cases, as the starting point for the calculation of the time limit during which the treaty shall remain open for signature. There is no problem where the two dates coincide and this is generally the case in practice.77 It is not so when the adoption and opening for

signature occur on different dates. This was the case, for example, with the Agreement relating to the Application of Part XI of the United Nations Convention on the Law of the Sea (UNCLOS) of 10 December 1982.

References 38. The Agreement was adopted by a United Nations General Assembly resolution of 28 July 1994 and opened for signature on 29 July 1994. It was argued that the latter date should be retained as the proper date of the Agreement and not 28 July 1994 as was done by the treaty section of the Secretariat General of the United Nations, acting on behalf of the SecretaryGeneral, depository of the Agreement.78 (p. 174) 39. Arguments in favour of this doctrinal position seem unfounded; on the one hand, because of an error relating to the date79 and, on the other hand, because the fact that the 1994 Agreement relates to a Convention (UNCLOS) adopted by a Pleniponitentiary Conference, cannot influence the determination of date of the Agreement inasmuch as it did not influence the latter's adoption procedure. The Convention was adopted by a conference with a two-thirds majority, while the Agreement was adopted by a General Assembly resolution. In any event, these are two formally distinct legal texts, even though they are interrelated.80 40. The practice is unstable and even contradictory. The 1993 Paris Convention on the Prohibition of Chemical Weapons, for example, was adopted by a resolution of the UN General Assembly. But its date is that of the solemn opening for signature in the French capital. On the contrary, the Convention on the Rights of the Child was adopted by a resolution of the General Assembly of 20 November 1989. The signing began in 1990, with the first signatures apposed on 26 January 1990. The final formula of the Convention states that ‘wherefore, the undersigned pleniponitentiaries duly authorized by their respective governments, have signed the present Convention’. However, the Convention was dated 20 November 1989, the day on which the General Assembly resolution was adopted. To consider automatically that a treaty's date is the date on which it was signed, where the date of signature and that of adoption do not coincide, is to deprive adoption of all of its legal significance. Except where it is explicitly provided, neither date takes precedence over the other.

References 41. Legally, the date of a treaty should be the date on which it entered into force, the date on which it came into existence as a legal text, the moment from which a ‘treaty’81 becomes a treaty, that is a text that is binding on all States that expressed their consent to be bound, and thereafter became parties. But this approach is not followed in practice. 42. The date of signature does not take precedence easily because of the problem of the relevant date: will it be the date on which the adopted text was opened for signature or, conversely, the date of closure of the period of signature? Practice is clearly inclined towards the former only because it very often coincides, as was seen, with the date of adoption. However, it is risky to accept the date of opening for signature. In fact, it may happen that after the opening of a multilateral ‘treaty’82 for signature, no country signs it or it is signed by only one, two, or three countries, which in any case is insignificant as regards the number of States which generally participate in the drawing-up of a universal or regional treaty. The actual situation will therefore be the same as that which prevailed at the time of adoption of the treaty. There will be no real change if the date of signature was taken into consideration. However, this solution prevails in practice. 43. It would be more convincing to consider the date on which the period for signature comes to an end. However, there is a theoretical inconvenience with this solution: if the text is not signed on this date, the situation on the date of adoption will prevail, and (p. 175) for practical reasons this date will be adopted. It is considered that if at the end of the period during which a text is open for signature it is not signed, it shall be considered abortive, and the issue of its date is not raised. 44. In conclusion, one can only note that there is no consistent practice on the issue of the date of a treaty given that in some cases the date of adoption is accepted while, in others, the date of opening for signature prevails. To simplify matters, both dates should be caused always to coincide. Conversely, States that draw up the treaty should have the final say given that this can influence the legal effects of the adopted text.

Legal effect of adoption 45. By declaring its support for the adoption of a text in the drawing-up of which it participated, the State expresses its ‘consent’. However, this initial consent relates to the text —its content—and not to its legal force: the State, by so doing, does not express by any means its consent to be bound by the adopted document. Consequently, the adoption does not render the adopted text binding. As Special Rapporteur, Sir Gerald Fitzmaurice, commented in his remark on the draft of Article 8 in 1966: At this level, negotiating States undertake only to produce the treaty as a document which states the provisions of the envisaged treaty; and even where they cast their votes, after negotiations, for the adoption of the entire text, they vote only in favour of this process. That is why voting at this stage does not in any way imply that the State accepts to be bound by the provisions of the text, which may become binding only if it gives its consent de novo (signature, ratification, accession or acceptance).83

46. Strictly speaking, a treaty does not exist at adoption. Adoption is simply the starting point of a more or less long and slow process which will confer legal existence on the adopted text. Therefore, it is legally appropriate at this stage to talk of a ‘document’ or a ‘text’ but not a treaty given that the Vienna Convention of 1969 defines a treaty as ‘an international agreement concluded in writing’ (Art. 2). But according to Part II Section 1 of the Convention entitled ‘Conclusion of Treaties’, the conclusion of a treaty includes its adoption (Art. 9), authentication (Art. 10), as well as the giving of consent to be bound (Arts 11 ff). The ‘draft Articles’—the stock phrase referring to the outcome of codification and progressive development work carried out by the ILC on a given topic—would become, according to this approach, a ‘text’ after adoption, then a ‘pre-treaty’ or a ‘pre-convention’ and will be referred to as a ‘treaty’ or a ‘convention’ only after it enters into force. However, it is unlikely that current practice respects such linguistic rigour.84 47. Given that adoption does not confer binding force on a text, should it be concluded that the adopted text has no legal significance? The answer will be in the affirmative in the case of texts negotiated for the conclusion of bilateral treaties. On the contrary, it will be qualified as a concern for texts drawn up with the view to concluding multilateral treaties. 48. Admittedly, the effect of adoption cannot be assimilated to that of signature. The ICJ judgment in the case of the North Sea Continental Shelf emphasized that signature crystallizes customary norms contained in a convention which could be invoked (p. 176) as negotium and not as instrumentum.85 Besides, practice shows that States consider that signatories of a convention are at least morally bound not to go against a text that they have signed.86 More so, Article 18 of the Vienna Convention on the Law on Treaties obliges the signatory State not to jeopardize its objective and goal before it comes into force.87

References 49. However, it is not easy to conceive that States engage in long and sometimes difficult negotiations to adopt a text which would have no effect in the international legal order or which does not express the legal aspirations of the States concerned or of the international community. The adoption of the text of a ‘treaty’ by an international conference expresses some measure of agreement or consensus on the norms concerned. Thus, adoption may acknowledge or declare new customary rules and/or state new rules. However, this importance should not be exaggerated because at this stage it is restricted to revealing existing norms. 50. But, when a text is adopted by a resolution of the UN General Assembly, it may produce customary norms where adoption is not followed by signature and entry into force, due to the political importance of the organ (General Assembly) and the institution (United Nations). It could also be so for the draft Articles of the ILC on the responsibility of States even though the UN General Assembly simply took note of this fact in its resolution of December 2001 as recommended by the ILC.88 51. Finally, adoption obeys two main principles: the rule of unanimity which applies to bilateral treaties and the rule of two-thirds majority of the States present and voting, which applies to multilateral treaties, without prejudice, however, to any other rule that the States participating in the drawing-up of the text at an international conference may apply. Things are less certain, and practice is not solidly established as far as the relationship between the date of adoption and that of the treaty is concerned, and regarding the legal effect of adoption which should be considered with some caution. *

MAURICE KAMTO

Footnotes: 1 See eg M. N. Shaw (International Law (4th edn, Cambridge: Cambridge University Press, 1997), pp 637–8) who treats adoption cursorily in the chapter entitled ‘Consent’. P.-M. Dupuy simply mentions adoption in a chapter on ‘The Conclusion of Treaties’ in Droit international public (5th edn, Paris: Dalloz, 2000), p 254; this is not the case in the first three editions. Justice T. O. Elias in ‘Main Features of the Vienna Convention’ does not even say a word on adoption (T. O. Elias, New Horizon in International Law (2nd edn, by Frances Seekandi, The Hague: Martinus Nijhoff, 1992), p 53). 2 See S. Bastid, Les traités dans la vie internationale. Conclusion et effets (Paris: Economica, 1985), p 37. 3 See P. Reuter, Introduction au droit des traités (3rd edn by Ph. Cahier, Paris: PUF, 1995), p 59. 4 For debates on this Article in plenary commissions at the Conference, see 15th, 84th, 85th, 91st, and 99th sessions in Official Records, Summary Records, pp 80, 213, 218, 249, and 306. 5 For para. 1, there was an amendment by Peru (A/CONF.39/C.1/L.101 and Corr.1); for para. 2, amendments by France (A/CONF.39/C.1/L.30) with sub-amendments by Czechoslovakia (A/CONF.39/C.1/L.102), Ukraine (A/CONF.39/C.1/L.51/Rev.11), Australia (A/CONF.39/C.1/L.380), Tanzania (A/CONF.39/C.1/L.103), Mexico and the United Kingdom (A/CONF.39/C.1/L.12), Austria (A/CONF.39/C.1/L.379), and an amendment by Ceylon aimed at adding a new para. 3 to the Article (A/CONF.39/C.1/L.43). 6 See Official Records, Summary Records, 29 April 1969, p 19. 7 Contribution made to the UN Conference on the Law of Treaties, 8th plenary session, 28 April 1969, Official Records, Summary Records, p 17. 8 A corresponding change was made in Spanish. See the Drafting Committee Report by Mr

Yasseen, to the Plenary Commission, Official Records, Summary Records, p 17. 9 See draft Art. 6 of ILC in YILC, 1966, vol. II, p 115; and draft Art. 8 in YILC, 1966, p 178. 10 See YILC, 1950, vol. I, pp 67–99. 11 See YILC, 1951, p 12. 12 Id; Mr Alfaro declared that the word ‘conclude’ had a double meaning in Spanish as well (ibid). 13 The G. Fitzmaurice Report of 14 March 1956, A/CN.4/101, YILC, 1956, vol. II, p 109. 14 Ibid, p 110. 15 Ibid, emphasis added. 16 For a brief history of this Article, see S. Rosenne, The Law of Treaties. A Guide to the Legislative History of the Vienna Convention (Leiden: Sijthoff; Dobbs Ferry: Oceana, 1970), pp 138–41. 17 See Report by the Commission on International Law to the General Assembly, YILC, 1959, vol. II, p 99. 18 Ibid, p 166. 19 UN Conference on the Law of Treaties, Official Records, Summary Records, 1st session, 26 March–24 May 1968. 20 See YILC, 1975, vol. I, p 224. 21 S. Bastid, supra n 2, p 36. 22 See comment below draft Art. 6 (‘Adoption of the text of a treaty’), in the Commission Report to the General Assembly, YILC, 1962, vol. II, p 166. 23 This distinction between adoption as first consent and final consent through signature, ratification, accession, or approval clearly stems from the comment below draft Art. 6 contained in the Commission Report to the General Assembly of 1962 mentioned supra and emphasized by the phrase ‘express its consent anew’ (ibid, p 166). 24 Contribution made at the 85th session, 10 April 1969, Official Records, Summary Records, p 218. 25 Cf the contribution of Mr Yasseen, ibid; see also contribution by Mr Jiménez de Aréchaga (Uruguay) at the 84th session, 10 April 1969, Official Records, Summary Records, p 215. 26 P. Reuter, Introduction au droit des traits, supra n 3, p 59. 27 CTS, vol. 147, p 136. 28 See Ch. Rousseau, Droit international public, vol. II (Paris: Dalloz, 1951), p 155. 29 Ibid, p 156. 30 Ibid, p 155. 31 International Legislation, vol. I (Washington, 1931), pp 2 ff. 32 P. Reuter, supra n 3, p 59. 33 Official Records, Summary Records, pp 219–20. 34 The amendment by Austria was contained in A/CONF.39/C.1/L.379. The amendment was adopted after a decision taken by the Plenary Commission at its 91st session. See Official Records, Summary Records, 99th session, 22 April 1969, p 309. 35 J. Combacau and S. Sur, Droit international public (6th edn, Paris: Montchrestien, 2004), p 115. 36 See ILC, Commission Report to the General Assembly, YILC, 1966, vol. II, pp 193–4. 37 ILC, Commission Report to the General Assembly, YILC, 1962, vol. II, p 167. 38 ILC, Commission Report to the General Assembly, YILC, 1966, vol. I, pp 193–4. 39 In his view, para. 1 provides for the fundamental rule of unanimity which applies to bilateral treaties and which is also commonly applied to multilateral treaties (contribution of Mr Briggs at the Plenary Commission, 15th session, 5 April 1968, Official Records, CRA, p 81). 40 See supra para. 10. 41 Contribution made at the 85th session, 10 April 1969, Official Records, Summary Records, p 218; Sweden had already expressed the same opinion in her remarks on draft Art. 7 entitled ‘Authentication’, YILC, 1965, vol. II, p 25. 42 Ibid, p 23. Mexico stressed the need for each conference to determine the majority required and the procedure for adoption of the text (ibid, p 24). See also the contribution by Mr Reugger, Swiss delegate to the Conference, 9th session, 29 April 1969, Official Records, Summary Records, p 18. 43 Cf among other things, contributions by Sir Francis Vallat (United Kingdom), 9th session, 29 April 1969, Official Records, Summary Records, p 22; see also M. N. Shaw, supra n 1, pp 637–8. 44 Cf contribution by Mr Wyzner (Poland), 84th session, 10 April 1969, Official Records, Summary Records, p 215. 45 Cf contribution by Mr Ruegger (Switzerland), 9th session, 29 April 1969, Official Records, Summary Records, p 18. 46 Cf contribution by Mr Virally at the 15th session, 5 April 1968, Official Records, Summary Records, pp 81–2.

47 This amendment was distributed under the column A/CONF.39/C.1/L.51/Rev.1, ibid, p 82. 48 Cf contributions by Mr Myslil (Czechoslovakia), ibid, p 81; Mr Koutikov (Bulgaria), ibid, p 82; Mr Ustor (Hungary), 84th session, 10 April 1969, Official Records, Summary Records, p 214; Mr Wyzner (Poland), ibid, p 215. 49 Cf contribution by Mr Briggs, 15th session, 5 April 1969, Official Records, Summary Records, p 81. 50 Cf contribution by Mr Hubert, 84th session, 10 April 1969, Official Records, Summary Records, p 213. The Tunisian delegation that was co-author with France of the amendment of Art. 17 accepted the withdrawal. 51 Paul Reuter held the same opinion. Read his contribution as Special Rapporteur on the Law of Treaties between States and international organizations, 1346th session, 8 July 1975, YILC, 1975, vol. I, p 225. 52 YILC, 1965, vol. II, p 24. It is difficult to define the notion of international conference. The same term was used to define a meeting of two heads of State or government (‘bilateral summit conference’) and a meeting of many heads of State or government (‘multilateral summit conference’), with the hope that one or the other will have the same general characteristics. See G. Pambou-Tchivounda, La conference au sommet. Contribution à l'étude des institutions des relations internationals (Paris: LGDJ, 1980), pp 277, 293 ff. 53 The amendment by Australia was the subject of A/CONF.39/C.1/L.380. A proposal supported especially by Brazil (Mr Nascimento e Silva), Switzerland (Mr Ruegger), Uruguay (Mr Alvarez), Egypt (Mr Abdel Meguid). See contributions by representatives from these countries at 84th and 85th sessions, 10 April, loc. cit., pp 213–20. 54 Cf contribution by Sir Humphrey Waldock, 15th session, 5 April 1968, loc. cit., p 83. 55 YILC, 1966, vol. II, pp 193–4. 56 Ibid, p 194. 57 Cf contribution by Sir Humphrey Waldock, 85th session, 10 April 1969, Official Records, Summary Records, p 219. This is exactly what the Iraqi delegation clearly requested, especially Mr Yasseen who declared that ‘it is necessary to indicate in greater detail in paragraph 2 which treaties and conferences are concerned’ (contribution to the 85th session, ibid, p 233). 58 Cf contribution by Sir Humphrey Waldock, 9th session, 29 April 1969, Official Records, Summary Records, p 21. 59 Considering that two-thirds majority cannot enable the minority to paralyse the adoption of a treaty, some delegations to the Conference thought that the rule of simple majority would be more practical; but they were aware that the international community was obviously not ready to adopt such a rule (see contribution by Mr Bindschler (Switzerland), 15th session, 5 April 1968, Official Records, Summary Records, p 86); Mr Yasseen (Iraq) declared that the delegation from his country could not accept an amendment aimed at simple majority (contribution made at the 85th session, 10 April 1969, Official Records, Summary Records, pp 218–19). 60 See contribution by Sir Francis Vallat (United Kingdom), Messrs Galindo-Pohl (El Salvador) and Bindschdler (Switzerland) (ibid, pp 22–3). 61 Contribution made at the 9th session, 29 April 1969, Official Records, Summary Records, p 19. 62 Ibid, p 22. 63 Verbal amendment by Ecuador, Official Records, Summary Records, p 19. 64 Cf contribution by Mr Waldock, 9th session, 29 April 1969, ibid, p 21. 65 Ibid. 66 The current text of the Article was adopted by 73 votes as against 16 and 10 abstentions, ibid, p 23. 67 Amendment contained in A/CONF.39/C.1/L.43. 68 See ILC Report to the General Assembly, YILC, 1965, p 160, draft Art. 6, para. 3. 69 It no longer features in draft Art. 8 contained in YILC, 1966, vol. II, pp 193–4. 70 Cf Report by Mr Yasseen, Chair of the Drafting Committee at the 99th session, 22 April 1969, p 331. 71 This includes especially the 1994 Treaty relating to the application of Part XI of the United Nations Convention on the Law of the Sea adopted by a Resolution of the General Assembly (Res. 48/263 of 28 July 1994); similarly, the Treaty on the Total Ban on Nuclear Tests was adopted by a Resolution of the General Assembly (Res. 50/45 of 10 September 1996) at the request of the Disarmament Conference, which could not arrive at a consensus for the adoption of this text, as required by its rules of procedure. 72 See eg the practice at the UNESCO Ministers Conference, the International Telecommunication Union (ITU), or the Conference of Heads of State and Government of the Organisation of African Unity (OAU). 73 See eg J. P. Levy, La conférence des Nations Unies sur le droit de la mer, Histoire d'une négociation singulière (Paris: Pedone, 1983); I. Sinclair, The Vienna Convention on the Law of Treaties (Cambridge: Cambridge University Press), pp 37–9. 74 According to some authors, consensus tends to be ‘tacit unanimity’, see J. Combacau and S. Sur, supra n 35, p 116.

75 UNJY, 1974, p 179. 76 See J. Combacau and S. Sur, supra n 35, p 117. 77 Convention on the Privileges and Immunities of the United Nations, approved by the General Assembly of the United Nations on 13 February 1946 with neither a date nor a final formula (UNTS, vol. I); International Covenant on Civil and Political Rights adopted by the General Assembly of the United Nations on 16 December 1966 which does not mention the date in the preamble, but a final formula indicating that the plenipotentiaries have signed the Covenant which was opened for signature in New York on 19 December 1966 (UNTS, vol. 999); Convention against Torture and Other Cruel, Inhuman or Degrading Punishment or Treatment adopted by the United Nations General Assembly on 10 December 1984 which does not mention either the date of adoption in the preamble or the final formula with a date (UNTS, vol. 1465); Convention on the Elimination of all Forms of Discrimination Against Women adopted by the United Nations General Assembly on 18 December 1979 which does not mention a date either in the preamble or at the end with the formula worded as follows: ‘Wherefore, the under mentioned have duly signed this Convention’ (UNTS, vol. 1249); Rome Convention relating to the Rules and Regulations of the International Criminal Tribunal, adopted on 17 July 1998 at about midnight and opened for signature at the same moment, and which has the date of the day of adoption due to the coincidence of the latter with the opening for signature. 78 J. P. Queneudec, ‘Le nouveau droit de la mer est arrivé’, RGDIP, 1994, p 870. 79 The author writes that the authentication formula states: ‘Done at New York, on 29 July 1994’, whereas it is written therein 28 July 1994. 80 See M. Kamto, ‘Positivité de nouveau droit de la mer et les problèmes liés à sa mise en œuvre’, Course at the Institut des hautes études (IHEI) de l'Université Panthéon-Assas (Paris II), Paris, 1997. 81 See the explanations regarding the use of the commas in para. 46 infra. 82 Ibid. 83 ILC, Commission's Report to the General Assembly, YILC, 1966, vol. II, p 194. 84 Some could see it as a possible source of confusion with notions such as ‘temporary agreement’ or ‘protocol preceding the final treaty’. 85 Judgment of 20 February 1969, ICJ Reports 1969, p 3. 86 This, eg, was the reaction of most signatory States to the UN Convention on the Law of the Sea of 1982 with regard to its signing by some other signatories, including France, of what was dubbed the ‘mini-convention’, concluded between some industrialized maritime powers— such as the United States which was not a signatory to the UNCLOS—relating to the delimitation of exploitation perimeters in the international zone. 87 See the commentary on Art. 18. 88 During its 2709th session, on 9 August 2001, the ILC decided, in accordance with Art. 23 of its Rules and Regulations, to recommend to the General Assembly of the United Nations to take note of the draft Articles on the responsibility of the State for an unlawful act in a resolution, and to annex the draft Articles to the resolution. See ILC Report, 53rd session, UNGA, Official Records, 56th session, Supplement No. 10 (A/56/10), p 43. * Professor, University of Yaounde II; Dean of the Faculty of Legal and Political Sciences; Member of the United Nations International Law Commission; Associate Member of the International Law Institute.

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Volume I, Part II Conclusion and Entry into Force of Treaties, s.1 Conclusion of Treaties, Art.9 1986 Vienna Convention Maurice Kamto From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties

(p. 177) 1986 Vienna Convention Article 9 Adoption of the text 1. The adoption of the text of a treaty takes place by the consent of all the States and international organizations or, as the case may be, all the organizations participating in its drawing up except as provided in paragraph 2. 2. The adoption of the text of a treaty at an international conference takes place in accordance with the procedure agreed upon by the participants in that conference. If, however, no agreement is reached on any such procedure, the adoption of the text shall take place by the vote of two thirds of the participants present and voting unless by the same majority they shall decide to apply a different rule. 1. Article 9 of the Vienna Convention of 1986 is a replica of Article 9 of the Vienna Convention of 1969. Initially, the draft Article 9 proposed by Paul Reuter, Special Rapporteur of the ILC on the law of treaties between States and international organizations or between international organizations comprised three paragraphs. The text was worded as follows: The adoption of a text signed between one or several States and in one or several international organizations, takes place by the consent of the state or states or the organization or organizations participating as parties subsequent to its drawing-up. The idea of ‘subsequent parties’ introduced in paragraph 2 was criticized by several members of the Commission. Other members held that an international organization cannot be treated on an equal footing with States and consequently cannot have the right to vote during a conference.1 2. Other States revisited the debate that had taken place both within the ILC and at the Vienna Conference of 1968–69 on the two-thirds majority rule. They argued that it depended more on progressive development than on codification2 and that, in any case, such majority was not a mandatory rule in international law.3 3. R. Ago played a crucial role in the shaping of Article 9 of the Vienna Convention of 1986. Paragraph 1 of the initial draft by the Special Rapporteur proposed an alignment with Article 9 of the Vienna Convention of 1969 by requesting the reinstitution of the word ‘all’ so that it would read as follows ‘the consent of all states’ because, for him, unanimity was the essence of the rule stated in both provisions. He subsequently suggested that both provisions be merged to lay down the principle of unanimity, and that paragraph 2 introduce the exception to the said rule stated in paragraph 3 of the initial draft (p. 178) by the Special Rapporteur.4 These proposals were accepted by the latter and resulted in the text found in the draft Articles of the ILC, submitted to the Vienna Conference of 1986. This text was not very different from the final text adopted by the Conference.5 Paragraph 1 was adopted easily during the Conference. However, this was not the case with paragraph 2 which provoked much debate that resulted in several amendments.6 The Chairman of the Drafting Commission explained that paragraph 2 had been split into two sentences to be more meaningful.7 The second sentence began as follows ‘where the latter do not agree on this procedure, the text shall be adopted’. This amended text was adopted without voting.8 4. Article 9 of the Vienna Convention of 1986 follows closely the wording of Article 9 of the Vienna Convention of 1969. Like the latter, it neither characterizes nor defines the word ‘conference’. In addition, it maintained the same terminology to avoid any dissymmetry with this text that could have laid down two different rules resulting in difficulties in interpretation.9 However, the 1986 text brought in some aspects that are peculiar to international organizations.10 5. While Article 9 of the Vienna Convention of 1969 is restricted to States, Article 9 of the 1986 Convention includes international organizations among participants for the drawing-up of the text of a treaty text within the framework of an international conference which can give their consent at the time of adoption. Article 9(1) of the Vienna Convention of 1969 relating to the adoption of treaties refers to ‘all participants during its drawing-up’. This expression is not defined since its meaning is obvious where only States are concerned. But this is not the case with international organizations. The commentary by the ILC on Article 9 the Vienna Convention of 1986 reveals that when international organizations are involved, the expression ‘all participants involved in its drawing-up’ used in Article 9(1) of the Vienna Convention of 1986 refers to, as the case may be, ‘either one or several States or one or several organizations, or several organizations’.11 However, only organizations that participate in the drawing-up of a text on an equal footing with States are taken into consideration, to the exclusion of those that are limited to a preparatory or advisory role.12 (p. 179) 6. Article 9(1) of the Vienna Convention of 1986 refers not only ‘to all States and all international organizations’, but also, ‘as the case may be, to all organizations participating’ in drawing-up the treaty. One may ask if it is possible to organize a conference for international organizations only. Although this is an exceptional hypothesis, it can be envisaged. The ILC held that under such circumstances, it would be unwise to apply the rule in Article 9(2) of the Vienna Convention of 1969 to the conference because it would be un-adapted due to the specific nature of each international organization to which Article 9(1) of the Vienna Convention of 1969 shall be applied: the text should be adopted by all participants, that is unanimously, unless another rule is laid down based on general consensus.13

7. Article 9(2) of the Vienna Convention of 1986 envisages an hypothesis that is similar to that of Article 9(1) of the 1969 Convention, namely a conference involving several States in which one or several international organizations could participate in order to ensure symmetrical possibility of adoption by both the States and the organization(s). However, while Article 9(2) of the Vienna Convention of 1969 lays down the two-thirds majority rule with alternative solutions in the case where participating States so decide, Article 9(2) of the 1986 Convention does not lay down any rule. It leaves the conference to choose, by agreement, between majority rule and any other adoption procedure. It is only where participants in a conference fail to agree that adoption shall be carried by ‘the vote of two-thirds of the participants present and voting, unless by the same majority they shall decide to apply a different rule’. The provisions of paragraph 2 should therefore not be interpreted as restricting the autonomy of international conferences where they adopt their rules of procedure or where they fill a lacuna thereof.14 *

MAURICE KAMTO

Footnotes: 1 The adoption of the text of a treaty at an international conference wherein, apart from states, one or several international organizations participate, and having the same rights as states, shall take place by the vote of two-thirds of the participants present and voting unless by the same majority they shall decide to apply a different rule. 2 Cf intervention by Mr Tsuruoka in YILC, 1975, vol. I, 1346th meeting, 8 July 1975, p 223. 3 Cf intervention by Mr Sette Camara, ibid, p 224. 4 Cf intervention at the 1346th session, ibid, p 223. The new para. 1 proposed by Ago was worded as follows: ‘The adoption of a text of a treaty signed between either one or several States or one or several international organizations, takes place by the consent of all the parties participating in its drawing up’. 5 See successive versions of the text adopted by the ILC in YILC, 1975, vol. II, pp 189–90; Report by the Commission to the General Assembly on the deliberations of its 33rd session, 1981, p 131; Report by the Commission to the General Assembly on the deliberations of its 34th session, 1982, p 28. 6 Presented by China (A/CONF.129/C.1/L.17); the International Atomic Energy Agency, Council of Europe, World Food and Agriculture Organization of the United Nations, International Civil Aviation Organization, Organization of American States, World Health Organization, United Nations Organization, and the United Nations Industrial Development Organization (A/CONF.129/C.1/L.22); France (A/CONF.129/C.1/L.28); Russia (A/CONF.129/C.1/L.30); Egypt (A/CONF.129/C.1/L.31). See UN Conference on the Law of Treaties, Proposals, Reports and Miscellaneous Documents, pp 68–9. 7 Cf intervention by Mr Al-Khasawneh, Chairman of Drafting Committee of the 5th plenary session, 18 March 1986, Official Records, Summary Records, p 12. 8 Id. 9 See commentary on the draft of Art. 9 in YILC, 1975, vol. II, p 190. 10 Id. See also Report by the ILC on the deliberations of its 33rd session, 1981, YILC, vol. II, Part Two, pp 130–1. 11 YILC, 1975, vol. II, p 190. 12 Id. 13 Id. 14 Ibid, p 191. * Professor, University of Yaounde II; Dean of the Faculty of Legal and Political Sciences; Member of the United Nations International Law Commission; Associate Member of the International Law Institute.

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Volume I, Part II Conclusion and Entry into Force of Treaties, s.1 Conclusion of Treaties, Art.10 1969 Vienna Convention Jean-Marc Thouvenin From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Treaties, signature — Customary international law — Travaux préparatoires

(p. 180) 1969 Vienna Convention Article 10 Authentication of the text The text of a treaty is established as authentic and definitive: (a) by such procedure as may be provided for in the text or agreed upon by the States participating in its drawing up; or (b) failing such procedure, by the signature, signature ad referendum or initialling by the representatives of those States of the text of the treaty or of the Final Act of a conference incorporating the text. A. General characteristics 180 Object and purpose 180 Customary status 181 B. Means of authentication 182 C. Legal effects of authentication 183 Effects ratione personae 183 Effects ratione materiae 184 The text is definitive 184 The text is authentic 185

A. General characteristics Object and purpose 1. Authenticating the text of a treaty which has been negotiated and adopted is the act whereby the text of a treaty is ‘established ne varietur’.1 It is the transaction by which ‘the definitive text is established, and it consists in some act or procedure which certifies the text as the correct and authentic text’.2 It thus serves to ‘merely verify that a certain instrument or document correctly embodies a certain text’.3 2. Until the Vienna Convention, the authentication procedure was not explicitly recognized as specific stage in the treaty-making process. Article 10 enshrines the principle that this act must be considered as different from the other acts leading to the conclusion of a treaty, particularly from the adoption of the text.4 This distinction is based on the assumption that authentication is a necessary formality, in that it enables States which participated in a negotiation to mark, and in case of dispute, to recognize, the text of the treaty they have negotiated and adopted. 3. Article 10 also seeks to clarify the different means available for authentication by citing the most common of them. In this context, it mentions the signature affixed by the representatives of States on conventional texts. This clarifies the legal effects, sometimes (p. 181) ambiguous, that signature is likely to play. In this regard, Brierly stressed in his First Report that the mention of authentication as a specific and autonomous formality of the treaty-making process allowed an emphasis on the distinction to be made ‘between signature of the texts of treaties as a means of mere authentication and signature as the process, or part of the process, whereby a State or international organization accepts a treaty as obligatory’.5

Customary status 4. Neither the practice nor the doctrine of the first half of the twentieth century used to attach to the act of authentication the same importance as did the Vienna Convention. Indeed, in 1959, members of the ILC acknowledged that ‘the concept of authentication has until recently remained largely unrecognized as a definite, separate, and necessary part of the treaty-making process’.6 This could be seen as the indication of an absence, in 1969, of any opinio juris related to authentication as a distinct procedure. This conclusion could be confirmed by the fact that before the Commission's work, none of the earlier draft codes on the Law of Treaties contained any mention of authentication.7 It largely explains the reluctance of some States to recognize the relevance of an Article devoted to authentication during the travaux of the ILC.8 5. But a closer look reveals that before the Vienna Convention, State practice did not ignore the necessity of authenticating the negotiated texts, although in the recent past it was done without the knowledge of practitioners. Indeed, in ancient times, plenipotentiaries authenticated the fruits of their work by affixing not only their signatures, but also their seals, on the originals or copies of negotiated texts.9 Subsequently, signing imposed itself as the only formality.10 But signature can have, at the same time, several legal effects. Naturally, the most important of them tended to overshadow others. For example, in the case of an exchange of letters, if signature constitutes both authentication and consent, it is clear that this latter feature, far more important, masks the former.11

References

6. As a result, when the ILC began to address the issue, the most recent practice very often confused the act of authentication with other acts of the treaty-making process. Nevertheless, it was also observed that authentication had not completely disappeared as such with the disappearance of seals, subsisting mainly through the method of initialling.12(p. 182) Moreover, the Commission observed a recent renewal of authentication practices. In effect, new authentication procedures dedicated to multilateral treaties had appeared alongside the growing number of major international negotiations. Some texts had been authenticated by their mere incorporation into the final act of diplomatic conferences, this final act being signed.13 Another method consisted in incorporating a text adopted, but not signed, in a resolution of an international organization, this resolution being signed.14 Finally, one last method was that of the International Labour Organization under which the signatures of the President of the International Labour Conference and the Director General of the International Labour Office alone authenticated the text of labour agreements.15

References 7. Other possible authentication procedures have been discussed during the travaux préparatoires, such as the publication of a statement or a unilateral declaration accepted by the party or parties concerned.16 But the ILC preferred to focus on procedures already clearly accepted by practice. It is therefore reasonable to consider that Article 10 of the 1969 Convention is a mere codification of the previous practice as regards authentication.

B. Means of authentication 8. Regarding procedures which may have as their effect the authentication of texts, successive versions of the drafts proposed by the Special Rapporteurs of the ILC present significant variations. The provision proposed by Fitzmaurice in 1956 establishes a list of possible means of authentication, which includes signature, initialling, incorporation into the final act of a conference or in a resolution, and then refers to ‘such other formal means as may be prescribed in the text itself, or specially agreed upon by the negotiating States’.17 The 1959 version differs as it proposes a hierarchy according to which ‘other formalities’ agreed upon by the participating States prevail over the specifically listed methods. Moreover, it also provides that in cases where no formality is mentioned or accomplished, signature, whether definitive or ad referendum, is considered as authentication, whatever the other effects the parties attributed to it. The 1965 version retains the principle of hierarchy, giving priority to procedures selected by the participants. Finally, it provides that authentication automatically derives from incorporation into a final act or resolution, or, in other cases, from initialling, signature, or signature ad referendum, by the States concerned.18 9. The structure of the provision finally adopted, which is in two paragraphs, confirms the hierarchy between authentication procedures specifically agreed upon by the participating States, and authentication procedures ‘by default’ that are signature, signature ad referendum, (p. 183) and initialling.19 It differs significantly from previous versions by failing to recognize explicitly general competences for the authentication of treaties between States to international organizations or international conferences. 10. Indeed, the incorporation of a text in the final act adopted by an international conference is not mentioned as a means of authentication of the said text. What is considered as such, under Article 10(b), is signature, signature ad referendum, or initialling, by the concerned States, of either the text or the final act which contains it. Some authors observe, however, that in practice at the end of conferences involving many participants, such as those held today by universal international organizations, it often happens that the final act is signed only by the president of the conference.20 A similar observation had led in 1965 to a member of the ILC, Mr Bartoš, not to vote in favour of the final drafting of Article 10, considering it too restrictive for the reason that it did not refer to this hypothesis. Nevertheless, it seems clear that the signature of the president of an international conference could authenticate a text, despite the absence of any mention of such a procedure in Article 10(b), if, as provided for in Article 10(a), it appears that States which participated in drawing-up the treaty within the conference have, in one way or another, agreed upon this procedure.

References 11. Equally, the incorporation of a text into a resolution of an international organization does not appear in the list ‘by default’ under paragraph (b). Hence, again, it can only be regarded as a possible means of authentication under paragraph (a), that is to say if it has been agreed upon by the participating States.

C. Legal effects of authentication Effects ratione personae 12. The contrast between the travaux préparatoires and the provision finally adopted highlights the idea that the traditional procedure of authentication of a text is normally based on individual acts of the participating States. This specificity underlines the difference between authentication and adoption, the latter being a collective act.21 When the act of authentication is actually an act within each participating State, its ratione personae effect is clear: each State acts for itself.22 But, of course, the fact that every participating State has authenticated the same text renders it authentic for all the said States. The issue is more (p. 184) difficult once authentication is made according to one of the mentioned modern collective

procedures (signature of the president of a conference; incorporation into a resolution of an international organization). The question is therefore to determine whether this act has legal effects towards all participating States, even towards those who opposed the adoption of the text. The response should be positive as long as the procedure is valid under Article 10, that is to say if the said procedure has been agreed upon by the participating States. The fact that some States have at some stage opposed the adoption of the text has no consequences on that point. It clearly emerges from Article 2, paragraph 1(e) of the Vienna Convention that drawingup and adoption are two distinct concepts, the drawing-up preceding the adoption,23 and that what should be taken into consideration for the authentication procedure is the position of the participants as regards the drawing-up, notwithstanding the position they could have as regards the adoption.

Effects ratione materiae 13. A part of the doctrine seems to consider that authentication triggers the obligation provided by Article 18 of the Convention of not depriving a treaty of its object and purpose before it enters into force. But this is not confirmed by the letter of Article 18 nor by the text of Article 10. Under the latter, authentication does, in fact, have two consequences: it embodies the text referred to as definitive, on the one hand, and as authentic, on the other hand.

The text is definitive 14. If authentication did not have this effect, the treaty-making process could never reach an end. Indeed, it is hard to see how a non-definitive text, which could still be changed, could ever be considered as having binding effect on the States concerned. That is why Fitzmaurice stated in his Report of 1956, in what was then draft Article 19, paragraph 1, that: ‘[t]he establishment and authenticating of the text of a treaty [is] a necessary condition of any further steps in connection with it, and of its entry into force, whether immediate or future’.24 15. As for the precise meaning to be given to the word ‘definitive’ (or ‘final’ in some drafts), the Commission had some difficulties. Fitzmaurice stated in his 1959 Report: ‘the word “final” is used in the sense that any change subsequent to authentication results in a new text, itself requiring authentication’.25As a result, he said, once a recognized procedure of authentication has been carried out in relation to a text, any subsequent alteration of it results not merely in an amended text, but in a new text, which will then itself require authentication or reauthentication in some way.26 The Swedish and Japanese governments expressed some doubts. The latter stressed that, in practice, States parties to an already authenticated text of a bilateral treaty decide to change its substance. But the Special Rapporteur saw no contradiction there with the rule he proposed since in this case the change should itself be authenticated. The former (p. 185) expressed the conviction that authentication was not a necessary formality to render a text ‘final’, the act of adoption being sufficient to that effect. But the Special Rapporteur stressed that the actual legal effect of authentication differs from the legal effect of adoption. Because if, following authentication, unanimity is required for any modification of the text, this was not necessarily the case before, specifically where adoption can be decided by majority.27 These latter explanations obviously prevailed and, besides, they are confirmed by Article 79 of the Convention which provides that all corrections to an authenticated text must be unanimously approved.

The text is authentic 16. The authentication procedure is in every case a concrete act, which consists in marking one or more original texts so that it makes it or them unique and identifiable. From there, copies can be made, certified or not, with no risk that the possible mistakes arising from it jeopardize the integrity of the adopted treaty: the original authenticated text or texts will always remain the only binding texts. As for an illustration, it has been observed that: ‘[t]he text may be adopted in two or more language versions, but it is only the text or texts which have been made authentic that constitute the treaty’.28 17. It should be noted, however, that neither the statute nor the rules of the International Court of Justice require the production of original documents on which the parties to a dispute base their case. Certified copies are sufficient.29 However, in cases of a dispute about the authenticity of documents, originals should be made accessible.30 18. Marking concretely a document so as to authenticate it is certainly useful in the event of a dispute. But the Maritime Delimitations and Territorial Questions between Qatar and Bahrain case clearly shows that in case of a dispute, a large part of the debate will focus on the verification of the authenticity of the authentication mark itself. On that point, traditional solutions are not very persuasive. The practice of affixing seals has been progressively abandoned, particularly because of its archaic and unreliable character.31 But it is clear that a signature or an initialling, easy to imitate, may not be more decisive, particularly concerning ancient documents. Therefore, the practice of entrusting the original instruments of treaties to a depositary, as provided in Articles 76 and 77 of the Convention, significantly improves the system. *

JEAN-MARC THOUVENIN

References

Footnotes: 1 YILC, 1959, vol. II, p 90, para. 15. 2 YILC, 1966, vol. II, p 195. 3 YILC, 1956, vol. II, p 121, para. 51. 4 See Waldock, Fourth Report on the Law of Treaties, YILC, 1965, vol. II, p 26. 5 YILC, 1950, vol. II, p 234, para. 65. 6 YILC, 1959, vol. II, p 103, para. 5. 7 See the draft codes in YILC, 1950, vol. II, pp 243 ff. 8 See YILC, 1965, vol. II, pp 25–6. For some States, a provision devoted to authentication was useless (United States), confusing (United States and Japan), or even legally unsound (Sweden). 9 YILC, 1959, vol. II, p 104, para. 7. See eg the Gadalupe Hidalgo treaty of 2 February 1848, between Mexico and the United States, Art. XXIII (CTS, vol. 102, pp 58–9); Hague Convention (I) of 29 July 1899, Art. 61 (CTS, vol. 187, p 423); or the Briand-Kellog Pact of 27 August 1928 (International Legislation, vol. IV, p 2522). 10 See the Hague Convention of 18 October 1907 (in D. Schlindler and J. Toman, Law of armed conflicts, reports of conventions, resolutions and other documents (Geneva: CICR, Henri Dunant Institute, 1996), p 53) or Geneva Conventions of 12 August 1949 (UNTS, vol. 75, p 31). Sealing has become totally obsolete in the 20th century. It is widely accepted, and, in the draft proposed by Fitzmaurice in 1956, it was even proposed to consider, that ‘Sealing is not a necessary element of authentication or formal validity, even in those cases where a formula reciting the affixation of seals is employed’, YILC, 1956, vol. II, p 111. 11 YILC, 1950, vol. II, pp 233–4; 1959, vol. II, pp 103–4. 12 The Commission took as an example of such practice the Locarno Treaty, initalled 16 October 1925 and signed 1 December 1925 (International Legislation, vol. III, p 1689); see YILC, 1952, vol. II, p 51. 13 Brierly gives the following examples in his Third Report of 1952: the Final Act of the codification conference of 1903; the Final Act of the Civil Aviation Conference of 1944, the final Act of the United Nation Conference on the Declaration of Dead and missing Persons of 1950; YILC, 1952, vol. II, p 51. 14 eg the General Convention on Privileges and Immunities of the United Nations of 1946, or the Convention on Genocide of 1948, have been authenticated by their incorporation into the resolutions of the General Assembly of the United Nations. These two examples are given by Brierly in his Third Report, YILC, 1952, vol. II, p 51. 15 YILC, 1962, vol. II, p 167. 16 YILC, 1962, vol. I, pp 86–7. 17 YILC, 1956, vol. II, p 111. 18 YILC, 1965, vol. II, p 26. 19 It should be noted that signature ad referendum, that is to say signature subject to confirmation, provides authentication in itself, with no need of confirmation. The same is true for initialling. An opposite solution would have as a result that only signature authenticates, which is contrary to the text of Art. 10. Contra, see Nguyen Quoc Dinh, A. Pellet, and P. Daillier, Droit International Public (7th edn, Paris: LGDJ, 2002), p 134, fn 74. 20 Ibid, p 170; see also J. Combacau, Droit des traités (Paris: PUF, 1991), p 18. 21 See J. Combacau, ibid, p 17: A la différence de l'adoption, l'authentification du texte (CV, 10) est normalement un acte individuel, et elle émane de certains seulement des sujets qui ont participé à la négociation. En droit strict, elle a en effet pour fonction d'arrêter le texte comme ‘authentique’, c'est-à-dire de reconnaître dans l'instrumentum où il est consigné le reflet fidèle du negotium sur lequel a porté l'acte collectif d'adoption; il s'agit donc nécessairement d'un acte individuel, par lequel chaque Etat n'engage que lui, s'interdisant, en particulier de remettre en cause le contenu du texte sur lequel l'accord a été obtenu. See also D. Alland (ed.), Droit international public (Paris: PUF, 2000), p 221. 22 Ibid, p 222. 23 According to this provision, ‘negotiating text’ means ‘State which took part in the drawing up and adoption of the text of a treaty’. 24 YILC, 1956, vol. II, p 111. 25 YILC, 1959, vol. II, p 104. 26 Ibid, p 103. 27 YILC, 1965, vol. II, p 26. 28 Id. 29 ICJ Statute, Art. 43, para 4; ICJ Rules, Art. 50. 30 In the Maritime Delimitation and Territorial Question Between Qatar and Bahrain case, because of a dispute on the authenticity of documents, the Vice-President of the International Court of Justice ordered the Registrar to ask Qatar to produce a series of original documents

in its possession: see the correspondence between Qatar and Bahrain, 25 September 1997–24 January 2000, available on the Court website under the heading: ‘correspondance’ (http://www.icj-cij.org/docket/index.php? p1=3&p2=3&k=61&lang=en&case=87&code=qb&p3=9). 31 An illustration can be found in the Qatar v Bahrain case. Several documents exhibited by Qatar and the authenticity of which were disputed by Bahrain were sealed, and their authenticity was verified by experts empirically. One can notice that, finally, it was the profusion of seals and not their unreliable character that led the parties to dismiss the documents. This shows the difficulty of authenticating the seals themselves; see on that point the correspondence quoted supra n 30. * Professor, University of Paris 10, Nanterre, France.

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Volume I, Part II Conclusion and Entry into Force of Treaties, s.1 Conclusion of Treaties, Art.10 1986 Vienna Convention Jean-Marc Thouvenin From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Treaties, signature

(p. 186) 1986 Vienna Convention Article 10 Authentication of the text 1. The text of a treaty between one or more States and one or more international organizations is established as authentic and definitive: (a) by such procedure as may be provided for in the text or agreed upon by the States and organizations participating in its drawing up; or (b) failing such procedure, by the signature, signature ad referendum or initialing by the representatives of those States and those organizations of the text of the treaty or of the Final Act of a conference incorporating the text. 2. The text of a treaty between international organizations is established as authentic and definitive: (a) by such procedure as may be provided for in the text or agreed upon by the organizations participating in its drawing up; or (b) failing such procedure, by the signature, signature ad referendum or initialing by the representatives of those organizations of the text of the treaty or of the Final Act of a conference incorporating the text. 1. The difference between this provision and Article 10 of the 1969 Convention lies exclusively in the necessity of its adaptation to the two categories of treaties which are the object of the 1986 Convention, namely those concluded, on the one hand, between States and international organizations and, on the other hand, between international organizations. Respecting this distinction, which appears as a summa divisio designed at clearly marking the difference in nature between States and international organizations, Article 10 is structured in two paragraphs, in many ways repetitive. 2. Even if it purely reflects the distinction between the two categories of treaty at stake, this inelegant structure is not easily justified. The means of authentication provided for either category appear exactly the same: it is those established in the text of treaties or otherwise agreed between the participants or, in absence of any agreement on a specific procedure, signature, ad referendum or not, or initialling. It is therefore not surprising to observe that some pressure had been applied during the debates at the ILC in favour of a redrafting of Article 10 under a single paragraph. Reuter adopted this approach in his Fourth Report,1 but the repetitive structure was reintroduced at the outset by the Drafting Committee. The Special Rapporteur tried again to propose a simplified formulation in his Tenth Report, taking into account the observations made by a representative in the Sixth Committee in 1975, but without any further success.2 3. However, it can be argued that the repetitive nature of the provision is only apparent because, basically, if sub-paragraph (b) of the first paragraph codifies international practice, the same sub-paragraph (b) of the second paragraph is proposed de legge ferenda. Indeed, if during the discussions the Commission had shown little doubt that the practice embodied the possibility that the final act of a conference devoted to drawing-up a treaty (p. 187) can be authenticated by signature or initialling affixed by both States and international organizations, it showed doubt about the assumption—which had never previously been encountered in practice—that an international conference of international organizations could even exist. It was supposed that such a conference could make sense in the hypothesis where different international organizations would have to decide on an international public service question of common interest,3 but this seemed highly unlikely.4 It is therefore clear that, unlike the first, the second paragraph of Article 10 of the 1986 Convention aims at participating in the development of international law. 4. It can also be noticed that in the French version the two paragraphs are not perfectly symmetrical. If they present very strong similarities, their respective paragraphs (a) differ. The first refers to States and organizations involved in the elaboration du traité empowered to authenticate it, whereas the latter refers to organizations involved in the elaboration du texte du traité. For its part, the English version refers in the two paragraphs of the provision only to the entities ‘participating in the drawing-up’ of the text of the treaty. But this wording could lead to misinterpretation because, as remarked emphatically by the Special Rapporteur, it is not rare that organizations are involved in the drawing-up of the text of a treaty in a purely technical manner, with no vocation to become themselves parties to that treaty. This is especially true with regard to codification conventions drawn up by the ILC.5 But even if the wording of Article 10 leaves some doubts about this, it cannot be accepted, and Article 10 is not designed to the effect, that these organizations are empowered to authenticate the said text.6 *

JEAN-MARC THOUVENIN

Footnotes: 1 YILC, 1975, vol. II, p 31. 2 YILC, 1981, vol. II, p 54. 3 YILC, 1975, vol. II, p 178.

4 In his Tenth Report, the Special Rapporteur refers to ‘exceptional case’, YILC, 1981, vol. II, Part Two, p 131. 5 P. Reuter gives this example in his Fourth Report, YILC, 1975, vol. II, p 30. 6 YILC, 1975, vol. II, p 178. * Professor, University of Paris 10, Nanterre, France.

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Volume I, Part II Conclusion and Entry into Force of Treaties, s.1 Conclusion of Treaties, Art.11 1969 Vienna Convention Sandra Szurek From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Treaties, signature — Treaties, ratification — Customary international law — Treaties, entry into force — State practice — General principles of international law

(p. 188) 1969 Vienna Convention Article 11 Means of expressing consent to be bound by a treaty The consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed. A. General characteristics 189 Object and purpose 189 Customary status 191 B. The extent of choice 193 Choice among the procedures laid down by classical means 193 Modalities differing from the classical means 194 Modalities extraneous to the classical means 196 C. Determination of choice 199 Nature of the agreements 199 Common will of the parties 200 Domestic treaty-making requirements 202 D. Scope of the provision 204

Bibliography Basdevant, J., ‘La conclusion et la rédaction des traités et des instruments diplomatiques autres que les traités’, RCADI, 1926-V, vol. 15, pp 539–613 Balladore Pallieri, G., ‘La formation des traités dans la pratique internationale contemporaines’, RCADI, 1949-I, vol. 74, pp 469–543 Bolintineanu, A., ‘Expression of Consent to be bound by a Treaty in the Light of the 1969 Vienna Convention’, AJIL, 1974, vol. 4, pp 672–86 Frankowska, M., ‘De la prétendue présomption en faveur de la ratification’, RGDIP, 1969, pp 62–88 Imbert, P.-H., ‘Le consentement des Etats en droit international. Réflexions à partir d'un cas pratique concernant la participation de la CEE aux traités du Conseil de l'Europe’, RGDIP, 1995, pp 353–82 Ouazzani Chahdi, H., La pratique marocaine du droit des traités (Essai sur le droit conventionnel marocain (Paris: LGDJ, 1982), p 558 Poirat, F., Le traité, acte juridique international, Recherches sur le traité international comme mode de production et comme produit (Leiden: Martinus Nijhoff, 2004) Reuter, P., Introduction au droit des traités (Paris: PUF, 1985) Rosenne, V. S., ‘ “Consent” and Related Words in the Codified Law of Treaties’ in La communauté internationales. Mélanges offerts à Charles Rousseau (Paris: Pedone, 1974), pp 227–48 Rousseau, Ch., Droit international public, t. 1, Introduction et sources (Paris: Sirey, 1970)

(p. 189) A. General characteristics Object and purpose 1. Located in Part II of the 1969 Vienna Convention, which is dedicated to the conclusion and entry into force of treaties, Article 11 reveals by its location in the Convention the double meaning of the notion of conclusion of treaties. Understood as the conclusion procedure, the expression of the consent to be bound comes after negotiation, adoption, and authentication of the conventional text, steps dealt with by Articles 6 to 10. Narrowly speaking, however, only ‘the final expression of the State's consent to be bound’ amount to the conclusion of the treaty.1 This is the main object of Article 11 which enumerates different types of acts expressing States' consent to be bound by a treaty. It thus introduces Articles 12 to 16, each of them clarifying the different means to which Article 11 makes reference and their modus operandi. Article 11 appears to be a turning point, both the provision marking the establishment of the text and of the legal reality resulting from it and also a merely introductive provision describing the procedures ‘by which a State can express its consent to be legally bound by this text’.2 2. This intermediate value is reflected by Article 11 itself. Through the same provision Article 11 tends to express two kinds of State consent depending on whether the State is the ‘author’ or merely a party to the treaty. One has to underline, however, that both qualities tend to merge into one another.3 This is the reason why some of the means referred to, like the signature, the exchange of instruments, or the ratification, are aimed at the specific States which participated in the negotiation and are thus ‘authors’ of the treaty, whereas some other means only concern third States which did not participate in the elaboration but expressed their consent to be bound by the treaty through acceptance, approval, or accession. This first

duality, quite subtle, is doubled by a second one, more obvious, that results from the juxtaposition, on one side, of a relatively exhaustive enumeration of the classical means to express the consent to be bound in international law and, on the other side, the mention of some quite indeterminate modalities through the expression ‘any other means if so agreed’. Article 11 is made up of two distinctive parts, a distinction reinforced by the punctuation. 3. In fact, the final formula of Article 11 is the result of the adjunction of two draft amendments proposed in the Plenary Commission of the Vienna Conference. This text is not therefore the one proposed by the ILC. A first amendment, proposed jointly by Poland and the United States,4 suggested the insertion of an introductory Article 9bis. It took up again, in an enumeration, the different means to express consent to be bound retained by the ILC, but it completed them with the mention that consent could be expressed by ‘any other means if so agreed’.5 The other amendment, introduced by Belgium, was consisting in the insertion of an Article 12bis: ‘In addition to the cases dealt with in Articles 10, 11 and 12, the consent of a State to be bound by a treaty may be expressed by any other method agreed upon between the contracting States’.6 (p. 190) 4. The Plenary Commission approved the amendments after examination7 and entrusted the Drafting Committee with the task of finding a proper wording and place in the draft Convention. The Drafting Committee presented its version of the provision during the 59th session of the Plenary Commission, which adopted it without formal voting.8 The text recommended to the Conference, the first part of which would finally be adopted under Article 11, ended with the formula ‘or by any other means if so agreed’. 5. These amendments were not, however, a last-minute innovation of the Conference. They were meant to restore an analogous provision present in the initial reports on the law of treaties, which had long been discussed before being dropped.9 The proposals put forward by Poland, the United States, and Belgium were similar. These States purported that the means to express consent retained by the ILC were too restrictive in the sense that they did not reflect practice and were unable to respond to further developments.10 As Belgium's representative upheld, it was imperious to fill this lacuna, considering that for instance 30 per cent of the agreements concluded by Belgium in 1964 would not fall under the enumeration of Articles 10, 11, and 12.11 He gave the example of a letter from an ambassador or of a statement by the Minister of Foreign Affairs notifying the State's consent.12 Poland's representative added some other examples such as exchange of note verbale, exchange of instruments, recognition by newly independent States of treaties concluded by the former colonial power, or even notification of a constitutional law, such as the 1955 agreement on the permanent neutrality of Austria. As a matter of fact, the Austrian constitutional laws instituting the neutrality status had been subsequently notified to other States, which had taken note. To Mr Nahlik, this notification could be construed as an offer accepted by other States and thus forming a sui generis agreement comparable to a treaty.13 6. The purpose of Article 11 was to make space for means to express State consent other than the classical means in order for the Vienna Convention not to be at odds with international practice. More broadly, Article 11 came to ascertain the principle of States' freedom in their choice of means to express their consent to be bound. This idea was reaffirmed by Mr Nahlik during the second session of the Conference: ‘In international law, States were free to use procedures suited to any given case, and practice introduced new forms and new procedures from time to time’.14 The Conference shared this point of view since Article 11 was adopted with 100 votes to 0, 3 abstentions, and no other far-reaching debates.15

(p. 191) Customary status 7. The text itself of Article 11 along with the debates within the ILC and at the Vienna Conference show that the customary status of this provision cannot be asserted as a whole. First of all, by the final addition of the phrase ‘by any other means if so agreed’, Article 11 retains the subsidiary possibility of admitting indeterminate means to express consent, some already used in State practice, some possibily resulting from subsequent practice. As far as subsequent practice is concerned, one can tell that Article 11 leaves room for the progressive development of law. As for present practice, however frequent its usage might be today, the fact is that Article 11 does not mention any specific means. One might infer from this silence that these means did not acquire the level of recognition necessary to become part of customary law. It is instructive to rely on some of the equivalent provisions of the previous drafts of Article 11. The third Brierly Report had thus proposed the following provision under Article 4 ‘Assumption of treaties obligations’: ‘A treaty becomes binding in relation to a State by signature, ratification, accession or any other means of expressing the will of the State, in accordance with its constitutional practice through an organ competent for that purpose’.16 8. In his commentary, Brierly explained that this Article enumerated the traditional methods used by a State to become bound by a treaty but that additionally, ‘in order to embrace the practice which has sometimes been used of recent years, and is known as “acceptance”, the Article specifies “other means of expressing the will of the State” ’.17 Acceptance was therefore a method accepted widely enough to be implicitly admitted in the provision concerning the means to express State consent to be bound but not common enough to be explicitly mentioned, alongside signature, ratification, or accession. Nonetheless, in the first Lauterpacht Report, the drafting of this provision changed to become: ‘A treaty becomes binding by signature which is not subject to confirmation, ratification, accession, acceptance, or any other means of expressing the will of the Parties…’.18 A new specific provision, Article 8, was dedicated to acceptance. In his commentary, the Special Rapporteur explained that: This includes, in addition of traditional methods of signature, ratification and accession, not only the more recent method so-called ‘acceptance’ (Article 8…), but

also such methods as concurrent action by way of exchanging notes…, a unilateral declaration accepted by the other party or parties…and, generally, any other procedure which the parties may find it necessary to employ.19 9. It seems obvious, therefore, that the expression ‘any other means if so agreed’ or its equivalent plays the role of an escape clause internal to the provision itself, meant to reserve all the innovations of the practice, belonging to the progressive development of law. Concerning the classical means of expressing consent to be bound, qualified as ‘traditional’ by the successive reports and enumerated in the first part of Article 11, each deserves an attentive examination which is beyond the scope of a commentary on Article 11. It is thus advisable to refer to the specific commentaries.20 However, subject to closer analysis, everything tends to ascertain their customary value. (p. 192) 10. The analysis needs, nevertheless, to be pushed further. Being too narrowly focused on the different means of consent would make us miss the pith of this provision. Article 11 purports indeed to affirm, through the freedom of choice, the indifference of the means that the State chooses to express its consent to be bound under international law. Hence, it is necessary to pursue a more precise investigation into the customary status of this provision. Is this provision breaking with a previous customary rule by retaining more than the determinate means of consent? Or instead, could the indifference of means and the correlative freedom of choice themselves be held to be customary rules? 11. Traditionally considered as a solemn act, or according to Charles Rousseau's words, a ‘procedural operation’, the international treaty ‘can only become perfect after the accomplishment of a certain procedure implemented by usage’.21 In this sense, the negotiation, ‘the signature, the ratification and the exchange of ratifications’ are part of the conclusion process.22 Basdevant insists upon this complex characteristic: ‘It is common, uncontested practice nowadays that the plenipotentiaries’ signature does no longer suffice to make the treaty binding upon States'.23 For the inter-war doctrine, the only purpose of the signature was to fix the content of the contracting parties' will whereas only ratification ‘could create a legal link or a binding rule for them’.24 In those days it was certain that a treaty could only be concluded through the exchange of ratifications, even though Basdevant toned down the impact of this affirmation by considering that ‘there are only practical considerations that led to consider ratification as a condition for the validity of the treaty. But no legal necessity imposes this’.25 12. After long debates within the ILC, both Brierly and Lauterpacht reached the conclusion that ratification was no longer the only possible means of expressing consent. This conclusion was later confirmed by the doctrine that had analysed numerous international treaties.26 The correlative thesis that ‘the State's consent is subject to no formalism in international law’ seemed widely spread.27 In his commentary on Article 4, Lauterpacht considered, as Brierly did earlier, that: ‘The object of this Article is…to state the principle that Parties to treaties enjoy a wide freedom of choice in the matter of the means by which they assume treaty obligations’.28 Therefore, Article 11 mixes up customary means to express consent and means pertaining to progressive development of law. The principle acknowledging the freedom of choice of the State among all these means certainly has customary value. The absence of prescriptions in international law resulted in an absolute freedom of choice for the States, freedom upon which Balladore Pallieri had strongly insisted.29 This principle underlines a core idea that Paul Reuter formulated as such: (p. 193) the law of treaties is dominated by the principle of consensus, it is the intention of the Parties that completely commands the conclusion of treaties; the forms, the vocabulary become relevant only when they illuminate these intentions through the procedural steps…30 13. As a whole, Article 11 of the Vienna Convention has drawn little attention from the doctrine. This passivity is all the more astonishing if we consider the prominent place that consent occupies in the law of treaties and in the Vienna Convention.31 The freedom of choice reflected by Article 11 raises two interpretative issues, one concerning the possible extent of this choice and the other concerning the means by which it is determined.

B. The extent of choice 14. Next to the classical means of expressing consent to be bound that constitute the object of the first part of Article 11, the reference in fine to the possibility of a State expressing its consent ‘by any means if so agreed’ seems to open the field to infinite freedom. Article 11 evidences a very liberal attitude by the Vienna Convention towards the contracting subjects and also, as we had previously established, a certain realism towards a practice which is hard to limit to the ‘traditional’ expressions of consent. This freedom of choice lends itself to a more or less broad interpretation. Without giving much weight to the second part of the Article, some authors seem to limit the choice to a choice between the two procedures: the long one and the short one, referred to infra. Even if we adopt this narrow point of view, we can put forward that the State that has chosen one of these classical means to express its consent can still opt for a procedure different from the one commonly used. The comma in Article 11 allows us to consider that the State has an absolute freedom of choice, independent of the regular means to express the consent enumerated in the first part of this provision.

Choice among the procedures laid down by classical means 15. Jean Combacau, for instance, rightly underlines that Article 11's specific purpose is ‘to introduce the forms that express the consent of the State, a future subject of the treaty’.32 He seems to consider nevertheless that the State can become bound only through one of the

enumerated means. In fact: States concluding a treaty have all the liberty to establish a common means to express their individual consent or to refer to each other the concern to choose a particular means of consent, but within the limits of the engagement procedure—either the short or the long one—they have agreed upon.33 As some other authors have underlined, this interpretation of Article 11 puts the States having participated in the negotiation in front of an alternative: either to establish a precise and uniform procedure to express their consent, or to establish that they leave the freedom of choice for every State; however this freedom has to deploy itself within the limits of the couple long procedure-short procedure.34 (p. 194) 16. This very restrictive interpretation, opposed by some other authors,35 is contestable on more than one account. First, it seems to imply that Article 11 concerns only the States that have participated in the negotiations, whereas this proposition is refuted by some of the means enumerated, for instance accession, which apply to States that were absent from the negotiations. Should one conclude in this latter case that these States can only express their consent through the means chosen by the parties who negotiated the agreemeent? It is true that this is often the case in practice because the means of expressing consent are related to the attribution of the quality of a party to the act. However, as Article 15(c) of the Vienna Convention on accession shows, these means of expressing consent are equally available if all the parties to the treaty consequently agree upon it. 17. Second, the conventional determination of a short or long procedure preserves the possibility of a party choosing a means of consent pertaining to the procedure to be set aside if, for instance, its internal law so requires.36 The same text can thus be signed by some States and ratified by others. As Suzanne Bastid has put it: It happens quite often that the classical treaty and the treaty in simplified form be combined in the same agreement, that is for a Party the ratification to be necessary, whereas for another the commitment is expressed through signature.37 One final remark: this interpretation, insisting upon a choice between the two procedures, the long or the short one, casts no light upon the means of expressing consent as such. The interpretation of Article 11 permits a broadening of this conception by leaving room for several ‘variations’ of the classical means to express the consent to be bound.

Modalities differing from the classical means 18. By referring to ‘any’ other means agreed, Article 11 takes into consideration the various modalities for expressing consent that pertain to the classical means themselves. Some of these modalities are mentioned by other provisions of the Vienna Convention: the initialling of the text or the signature ad referendum of Article 12(2)(a) and (b) are thus modalities of signature. 19. The same principle applies with regard to ratification which can be expressed in many different ways. It can take the form of a notification by exchange of oral notes: it then has the value of both expression of consent to be bound and entry into force of the treaty.38 In order to ensure an immediate entry into force during the nineteenth century, States could transmit a telegram to their diplomatic agents instructing them ‘to immediately notify that ratification had been given and that it would shortly follow’. This resulted in a provisional entry into force of the treaty.39 The subsequent practice has confirmed (p. 195) this tendency towards simplification: as G. Balladore Pallieri points out, ‘the State notifies the existence of the ratification, without transmitting it any longer’ or transmits ‘a declaration entailing that acceptance had been given’.40 20. Contemporary State practice presents some original variants of these modalities. This might create some problems as studies on the codification of the law of treaties have shown, for example with regard to the Tunisian ratification practice by executive law (décret-loi). These executive laws were acts of the president that required ratification by the Assemblée Nationale during the next ordinary session. It was a frequent practice since, over a period of 20 years, 34 treaties and international agreements had been ratified in this way.41 Nevertheless, this internal procedure equated to a double ratification thereby exposing itself to the difficult problems raised by the imperfect ratification. This Tunisian practice would fall under what Charles Rousseau identified as the hypothesis of ‘ratification given by the Head of State in the absence of any legislative authorization, when this authorization is constitutionally necessary’.42 Moreover, in the Tunisian treaty-making process, the act of the Head of State amounted to ratification independently of the act of parliamentary ratification that rendered it perfect.43 21. The same diversity exists for the accession procedure as exemplified by the Moroccan practice. Next to accession resulting from a simple letter or from an exchange of letters between the contracting parties, one can find accession ‘subject to ratification’. In this latter case, the treaty enters into force after the adoption of a dahir that has the value of ratification of the accession.44 This was the procedure used by Morocco to accede to the international agreement on sugar signed at Geneva on 24 October 1958, to a convention on customs facilities in favour of tourism, or to the international air services transit agreement signed at Chicago on 7 December 1944. This technique had already been studied by the League of Nations which considered that it did not have to encourage or discourage it. Following the United Nations practice, the Secretary-General considered this kind of instrument ‘a simple piece of information on the intention of the government to become Party’ and as such unlikely

to be notified to the other parties to the treaty. In fact, the Secretariat considers that ‘only the deposit of an instrument from which any mention of a subsequent ratification is absent makes the State a Party and will be further notified to the other Parties’.45 It follows that the State cannot pretend that the date of entry into force is the date of the declaration of accession; rather, it will be the date of the ratification decree. 22. Some modalities to express consent might nevertheless give rise to confusion with the conventional act itself, considering that the minimal definition of a ‘treaty’ contained in Article 2 of the Vienna Convention leaves the door open to the absence of (p. 196) any formalism.46 This is especially relevant for agreements concluded by an exchange of letters or notes, representing ‘a significant broadening of the notion of instrument’.47 The international practice evidences an accentuated decrease of the conventional formalism, a phenomenon acknowledged several times by the International Court of Justice. In the Maritime Delimitation and Territorial Questions between Qatar and Bahrain: Jurisdiction and Admissibility case,48 the Court acknowledged that ‘[t]he Parties agree that the exchanges of letters…constitute an international agreement with binding force in their mutual relations’.49 According to Article 13 of the Vienna Convention which relates to treaties constituted by an exchange of instruments, the exchange itself forms the means of expressing consent to be bound, regardless of the nature of these instruments. The exchange of notes had been explicitly mentioned at the Vienna Conference to justify the insertion of Article 11 in the Convention.50 The combined interpretation of Articles 11 and 13 foresees that the exchange of even less formal instruments such as telegrams or similar documents, could constitute means for the State to express its consent to be bound. Rapidity constraints in international relations justify the admission of the exchange of similar instruments that could notably erode the formalistic image of the treaty, the conclusion of which will then take place in a separate phase. The instantaneous exchange will simultaneously account for the act, the object of the agreement, and the consent of the parties.

References

Modalities extraneous to the classical means 23. In regard to the possibilities offered by Article 11 in fine, one may wonder whether a minimum prerequisite of formalism should not be set as a limit to the indeterminacy of the means to express consent. This is especially the case if we consider as ‘other means’ the proclamation or publication of the treaty, or the notification to the other parties that the necessary internal procedures have been accomplished.51 This argument is confirmed by the doctrine; Serge Sur for instance argues that Article 11 contains a non-exhaustive enumeration of equal means to express consent, allowing States to select their preferred procedure while requiring nevertheless that this consent ‘be formally expressed’.52 This assertion, however, lacks precision because of the multiple meanings of the word ‘formal’. If the interpretation suggests that this liberty is given to the negotiators ‘on condition that they fulfil the formal constraints’, one could rightly object that nothing in Article 11 of the Vienna Convention provides for such a requirement.53 This can also infer that consent has to be expressed so as to remove any possible doubt, a purpose for which it has to (p. 197) result unambiguously from the means by which it is expressed, whatever these means may be. This last interpretation, more in accordance with the object and purpose of Article 11, seems to be favoured by S. Sur and, to back this up, he refers to the judgement of the International Court of Justice (ICJ) in the North Sea Continental Shelf case.54 The Court in fact admitted the possibility of a State being bound by a treaty that normally requires ratification, even though no ratification has been given. The ICJ, however, insisted that various manifestations of Germany's intention had sufficed to conclude that it had expressed its consent to be bound. Far from restraining the possibilities of expressing consent, this case illustrates the formalistic distension authorized by international law, understood as ‘form’ of the expression and not nature of the consent reflected.

References 24. The North Sea Continental Shelf case illustrates that Article 11 of the Vienna Convention does not even imply that consent has to be written. Mention must be made of the use of signals in cease-fire agreements, the validity of which had been admitted by Grotius and was recaptured by Julio Barberis.55 Hence, the parties engaging in military operations conclude an agreement to express their consent to cease-fire by some agreed signals. Could one go as far as to consider that consent could be expressed orally? As long as there is no necessary correlation between the definition of the treaty in Article 2(1) of the Vienna Convention, namely ‘an agreement concluded in writing’, and the means of expressing consent to be bound, nothing in the Vienna Convention indicates that the expression of consent itself should be written. This is a different situation from the verbal agreements which do not imply the existence of any textual support evidenced by the fact that the Vienna Convention set them aside, reserving the issue of their legal value.56 In practice, the two issues are often confounded since what is in reality a verbal agreement, is often presented as an example of verbal consent. The validity of these verbal agreements was recognized by the Permanent Court of International Justice (PCIJ) in the Mavrommatis Concessions case57 when the Court admitted that an agreement could result from the parties' oral declarations.58 The same confusion takes place when reference is made to the famous Ihlen declaration. This declaration was obviously binding upon Norway, as the Court ruled in the Legal Status of Eastern Greenland case,59 but it could in no way be considered as the oral expression of Norway's consent to be bound by the treaty.60

References 25. The oral commitment of a party to a treaty is thus a theoretically conceivable possibility. However, the chances for this declaration to be considered as an actual expression of consent to be bound are remote and thus the formal procedure provided for would have to be followed. But, such a declaration could eventually be constitutive of estoppel. 26. The absence of formalism reaches its peak in cases where a tacit expression of the consent to be bound is admitted. The decline of formalism decried by the doctrine seems all the more actual in this case,61 since the express manifestation of consent constitutes one of the elements distinguishing the treaty from the other sources of international law, (p. 198) namely custom.62 Pierre-Henri Imbert considers that the formulation of Article 11 authorizes tacit consent ‘especially since under international law there is no rule imposing on States to give their consent expressly’.63 The technique of negative notification or opting out is more and more used in the case of treaties concluded within international organizations. Through this procedure a State can become a party to a treaty without having given its express consent.64 27. The possibility of tacit ratification was repeatedly underlined by the doctrine. However, a prudent attitude is judicious: the doctrine is divided on this point and there is little practice. Fauchille admits that ‘although ratification is a fundamental condition of treaty, equivalent acts performed by the Parties, like the application of the treaty's provisions, could make up for it’.65 The justification is that: What gives effect to the ratification by the supreme power is the fact that it implies the consent of this power to the existence of the treaty; in reality, this consent can be revealed by the execution of the treaty as well as by its ratification. Suzanne Bastid holds a different opinion since she considers that consent needs to be expressed through a solemn act. The Special Rapporteurs' Reports on the law of treaties reflect the same divide. Whereas Lauterpacht was restricting the choice to ratification through a solemn, written act,66 Fitzmaurice was admitting that ‘ratification may, exceptionally, be effected by conduct, that is to say by executing the treaty; and a State which proceeds to execute a treaty it has signed will be deemed to have given its ratification’.67 28. The practice of tacit ratification has, however, remained in an incipient stage. The nearest example we could find is one where the Belgian Cour de Cassation recognized the value of tacit consent in a case where the treaty required consent to be expressed by ratification. In its decision of 25 January 1906 on ‘Queen's Mary-Henrietta Succession’, the Cour de Cassation characterized a matrimonial convention between the future Leopold II and Princess MaryHenrietta of Austria as a treaty,68 stating that ‘a treaty can be performed before it has been ratified in writing, and this performance is the best tacit ratification that deprives the formal ratification of its utility’.69 29. Accordingly, ratification, which is normally the most solemn expression of consent to be bound by a treaty, could result from the execution of the treaty. Even though exceptional, this situation could lead to difficult and paradoxical results. For instance, the question of entry into force could arise, especially where the treaty provides that a certain number of ratification instruments is required. Accordingly, one of the parties executing the treaty without having formally ratified it could prevent the treaty from entering into force, which is an absurd though actual possibility. The paradox becomes obvious when one compares Article 11 and Article 35 of the Vienna Convention. On the one hand, a State could tacitly become a party to a treaty whereas, on the other hand, Article 35 stipulates that an obligation for a third State (p. 199) could only arise from a treaty provision ‘if the third State expressly accepts that obligation in writing’.70 30. Article 11 can be said to offer States the liberty of choice—if not complete freedom, then at least a very broad one—inasmuch as it conveys the decline of formalism in the expression of consent to be bound. But one can wonder if a limit to the liberalism of the Vienna Convention does not originate from the reasons that led a State to choose one means to express consent instead of another.

C. Determination of choice 31. Sir Robert Jennings underlined that the fact that the choice of means to consent is left to States results from the fact that there are several ways to express the consent to be bound determined sometimes by the importance or the character of the treaty and by the particular means(s) required by its ‘final provisions,’ sometimes simply by the choice of the government involved.71 The determination of the choice is indeed conditioned either by the nature of the agreements or, rather, by two contradictory or complementary considerations: the common will of the parties and the domestic treaty-making requirements.

Nature of the agreements 32. Does the nature of the treaty, its political or normative impact, or its subject matter influence the choice of a specific means to express consent? A definitive answer would be hazardous, even if in reality some means are more used than others in respect of certain types of treaties. The French practice discloses that treaties reserved to the Head of State's ratification are of particular importance.72 This is a return to a previous situation in which the 73

long procedure was the regularly used one, but which has now become the exception.73 The Moroccan practice evidences a frequent use of approval ‘for the conclusion of agreements or of loan “contracts” normally pertaining to the Prime Minister's competence’.74 The frequent practice of treaties concluded in simplified form has convinced some authors to attempt a classification according to subject matter: agreements concluded between belligerent States; technical agreements in the domains of transport or communications, etc.75 33. However, State practice itself dismisses these attempts since no apparent link between the nature of the agreements and the expression of consent to be bound can be established, even though some States favour such a linkage. This was, for instance, the case for two exchanges of notes that McNair characterized as intergovernmental agreements, stating with regard to UK practice that: (p. 200) It is broadly true to say that the United Kingdom prefers to reserve the intergovernmental form for agreements of secondary importance or of a non-political character, but that is becoming increasingly difficult.76 The exchange of notes has been used to seal a disarmament treaty as well as an agreement to settle a dispute, as shown by the Rainbow Warrior case opposing France and New Zealand, when the agreement materialized through three letters dated on the same day.77 Notwithstanding the political tension the dispute had created between the two States, from a purely formal point of view the settlement was reached through the simplest and least solemn act one could imagine.78 However, the chosen form could have been indicative of the will to set the tone of an amicable settlement. 34. It is also possible that the nature of an interstate dispute and its magnitude make a direct agreement between the parties impossible and hence require the use of an original form. This was the case of the Algiers Agreements of 19 January 1981, sealing the modalities to settle the Iran-US dispute following the Iranian Revolution. These agreements were formed by a series of instruments in which the names of the involved parties (the United States and Iran) never appeared, but which included references to the Algerian government, which was the mediator chosen by the parties. It was the Algerian government that was formally the author of the Declarations constituting the Agreement, but with the signatures of the interested parties appearing at the bottom of each page.79

References

Common will of the parties 35. The reference in Article 11 in fine of ‘any other means if so agreed’ seems to give States a freedom for which the sole limit lies in the ‘agreed’ character of the means. This formula is, however, somewhat ambiguous. Its most widespread interpretation is that it refers to the parties to the treaty for the common choice of a means undefined by the Vienna Convention itself. This freedom can only be exercised through a common agreement of the parties negotiating the treaty. For A. Bolintineanu, there is no doubt that Article 11 in fine means that ‘the negotiating States can set up means different from the one retained by the Vienna Convention, as long as they have reached an agreement upon them’.80 However, the wording of Article 11 does not impose such a restrictive interpretation. On the contrary, by referring to ‘a’ State, Article 11 seems to render the means to express consent an issue peculiar to the State that becomes bound; a matter only depending on its free will. It is therefore conceivable that Article 11 allows States a choice other than the one determined by the parties, as long as these parties accept it. Another possible interpretation would be to consider that Article 11 authorizes States to express their consent by any means independently of the one the parties have chosen, as long as it is ‘agreed’ under general international law. Although this last interpretation is quite within the interpretative scope of the French version of Article 11, it seems to be incompatible (p. 201) with the English version. Article 11's interpretation leaves room for changes of the State's free will, depending on the importance given to the ‘condition’ of consent of other parties. This liberty of choice can thus be conditioned by the other parties' collective consent, be it implicit or explicit. 36. The first part of Article 11 does not contain any indication on this particular point. In the second part, ‘any other means if so agreed’ can be understood as any other means determined by the parties. The third Brierly Report obviously did not retain this interpretation since its draft Article 4 provided that ‘[a] treaty becomes binding in relation to a State by signature, ratification, accession or any other means of expressing the will of the State’ (emphasis added).81 The first Lauterpacht Report took up this provision, allowing space for means other than the classical ones enumerated by Brierly and explaining that the ‘other means’ had to result from the parties' will and not only from the contracting State's intent.82 The amendments proposed at the Vienna Conference went that way. Nevertheless the Vienna Convention contains a more ambiguous term which gives rise to contradictory interpretations. 37. Most authors give greater importance to the traditional means rather than to the indeterminate ones, or simply consider that the latter are absorbed by the first. The consequence is that the doctrine seems generally inclined to conclude that the chosen means have to result from the parties' common assent. Hence, whatever the form of expression, the consent of every State seems to be conditioned by the means chosen by the party authors of the treaty. Other provisions of the Vienna Convention confirm this point of view. The liberty to choose among different means established under international law is thus confirmed: the signature by Article 12(1)(a) and (b), the exchange of instruments constituting a treaty by Article 13(a) and (b), ratification, acceptance, and approval by Article 14(1)(a) and (b), and accession by Article 15(a), (b), (c).

38. Except for accession and for the exchange of instruments which can only be formulated on a conventional basis, all other options consider the possibility of a unilateral determination of the means to express consent to be bound. As far as signature is concerned, Article 12(1)(c) provides that: 1. The consent of a State to be bound by a treaty is expressed by the signature of its representative when: (c)  …the intention of the State to give that effect to the signature appears from the full powers of its representative or was expressed during the negotiation. Article 14 leaves open the same possibility of unilateral determination, except that this choice is available only to States which have participated in the negotiations, as the expression ‘this State’ suggests it, as opposed to the expression ‘a State’ used in Article 12. However, the multiple conditions attached to this possibility greatly reduce the freedom of choice since they require at least the implicit consent of the other negotiating parties. 39. By way of conclusion, there certainly is a variety of interpretations that can be given to ‘any other means if so agreed’ in Article 11. It can either refer to any means agreed by the parties in the treaty itself or during the negotiation or to any means to which the State intended to give effect as deducable from the full powers granted to its representative or expressed during the negotiations. Nevertheless, considering that the (p. 202) Vienna Convention has not subordinated the possibility for a State to adopt other means generally ‘agreed’ by the other parties, we can wonder if these means are generally accepted by virtue of a customary rule, opposable in itself by the other parties. The same problem appears in relation to merely formal variations of a modality of the classical ways to express consent.

Domestic treaty-making requirements 40. The distinctions supra allow the conciliation of the international procedure and the domestic treaty-making provisions. The consent of a State to be bound by a treaty can be expressed only on the international level, without any intervention of a domestic phase. This is the case for agreements concluded in simplified form for which the signature perfects the consent. In other cases, the domestic legal order imposes that the State's international commitments be authorized by the intervention of an internal organ, usually the Parliament. From this point of view, domestic and international law disclose completely antinomic approaches. As emphasized by McNair ‘International law itself prescribes neither form nor procedure for the making of international engagements, though the constitutional law of certain States frequently prescribes both’.83 The importance and utility of Article 11 stems from the fact that it clarifies that the domestic and the international procedures by which a State consents to be bound have to be dissociated.84 41. Paul Reuter emphasized that in fact one of the major problems generated by this dual— domestic and international—procedure is a terminological one since every legal order defines its own concepts while their meaning can differ from one legal order to the other.85 The Vienna Convention has, in his view, overcome these difficulties in a ‘skilful and elegant’ manner by largely doing away with the vocabulary and definitions problem.86 Reuter concluded by comparing Articles 2(1)(b), 11, and 14 that the Convention did not provide for any definition and limited itself to specifying that all three Articles implied an ‘expression of the consent to be bound by a treaty’.87 Hence he came to the conclusion that: according to the Convention, the only thing important is that the States agree that these notions constitute an expression of the will to be bound and that this agreement can result either from the text itself of the treaty, or from an agreement between the States having negotiated the text or from a unilateral manifestation of a State during the negotiation, on the occasion of full powers or of signature.88 After all is said and done, according to Paul Reuter ‘everything is about the Parties’ intent, provided that this intent be sufficiently clear in the light of the usual practice'.89 By adding the final mention of ‘any other means if so agreed’ to all enumerated means, the wording of Article 11 ‘evidences the informal character of the procedure’.90 (p. 203) 42. This latter interpretation of Article 11 seems to introduce a flexibility principle in the first part via the second part of this provision and it does so for two reasons. On the one side, unless the parties have decided otherwise or are constrained by domestic requirements, Article 11 preserves the possibility that they do not express their consent through the same procedure: even if one party has chosen signature, the other can opt for ratification. The treaty's final provisions often allow States to choose the procedure to be followed at the domestic level. As Geneviève Burdeau remarked, usually bilateral treaties establish that each party notifies the other when its constitutional procedures for the entry into force of the agreement have been undertaken.91 These provisions confirm the possible dissymmetry in the parties' means to express their consent, contingent on their domestic legal order requirements or even on their preferences. On the other side, considering the various meanings concepts can have in domestic legal orders, it is understood that the parties can agree upon any other wording, provided this is sufficiently clear. 43. However, international practice is far from being this clear. An instrument such as a memorandum of understanding can have a different significance for each party and lead to divergent interpretations as to the value to be given to its signature. This is illustrated by a recent agreement between France and the Russian Federation that almost raised internal difficulties in France. In the case of the Russian loans subscribed in France by the tsarist empire during the nineteenth century, France and the Russian Federation reached an agreement on their respective claims on 27 May 1997.92 But a memorandum of understanding

of 26 November 1996 had preceded this final agreement, settling the modalities through which the parties would end their financial dispute. It had also stated that an agreement on the settlement of the parties' reciprocal claims would follow as soon as possible. The problem was that the two parties did not have the same conception of the value of a memorandum of understanding and attached a different significance to its signature.

References 44. As a result, the agreement that followed did not bear the same weight in the eyes of both parties. For the Russian Federation, the memorandum of understanding was a simple declaration of intent with no binding effect, whereas France considered that it was an internationally binding agreement. The French position towards the memorandum of understanding is indeed at variance with that of the Anglo-Saxon doctrine,93 as a circulaire of the Ministry of Foreign Affairs of 30 May 1997 recalled.94 The latter considers the memorandum of understanding a simple declaration of intent, a bona fide commitment that does not bind its signatories. The French conception of international law ‘admits [on the contrary] that every commitment taken in the name of the government has the value of an international agreement entailing international obligations’.95 It is obvious that the (p. 204) subsequent agreement concluded on 27 May 1997 could not bear the same value for the parties. For France, which considered itself bound by the memorandum of understanding, this could only be an additional protocol; for Russia, only the subsequent agreement could be binding upon it.96 The parties finally compromised on the formula of the ‘complementary agreement’. 45. This case is conclusive with regard to one last point. Due to the critical financial situation of Russia at the time, France agreed that the entry into force of the agreement be on 27 May 1997 which was the day of its signature. This prevented the Douma from interfering with the procedure and rejecting the agreement. In doing so, France had agreed to a means of expressing its consent to be bound that was in flagrant violation of Article 53 of its Constitution which requires that agreements having budgetary implications can only be approved or ratified by virtue of law. The law authorizing the approval of the two agreements was voted upon on 19 December 1997,97 thus authorizing an agreement that had been binding on France for more than six months. This case exemplifies relatively well that ‘it is the principle of consent that dominates the law of treaties, it is the intent of the Parties that commands the choice of the means to conclude the treaty’, as Paul Reuter convincingly underlined it.98 Consent and intent can apply to different objects and sometimes ignore the consequences that one particular choice would have in the domestic legal order; a result which may give rise to further difficulties.

D. Scope of the provision 46. As Special Rapporteur of the ILC on the law of treaties concluded by international organizations, Paul Reuter best captured the meaning and scope of Article 11. To him, Article 11 as adopted by the Vienna Conference authorizes any form of consent in the treaties between States. At the same time, he warned that this conclusion encompassed more than the simple issue of the form of consent. Through this provision, the 1969 Convention, while endorsing international practice, ‘is entirely built on an essential general principle: the value of pure consensus’.99 One has to admit then that ‘consent is binding regardless of any form, or —it might be better to say—the force of mutual consent is such that it is free to choose its own manner of expression’.100 47. Despite its innocuous appearance, Article 11 therefore stands out haloed with considerable importance as it clears the way for further developments in treaty-making conditions, which are more adapted for instance to urgency requirements, without involving domestic treaty-making provisions.101 Besides, ‘this consensual principle finally disrupts the treaty-concluding rules that the Vienna Convention ambits to clarify’.102 In this (p. 205) way, ‘if after all only the behaviour matters’,103 we can wonder whether the notion of a treaty does not itself dissolve in the generic category of agreements or, by the combined interpretation of Articles 11 and 13, in the more indeterminate category of engagements.104 Should this be the case, Article 11 jeopardizes the whole treaty-making rules codification effort of the Vienna Convention. *

SANDRA SZUREK

Footnotes: 1 P. Reuter, Introduction au droit des traités (Paris: PUF, 1985), p 53. 2 F. Poirat, Le traité, acte juridique international, Recherches sur le traité international comme mode de production et comme produit (Leiden: Martinus Nijhoff, 2004), p 41 (own translation). 3 Ibid. 4 A/CONF.39/C.1/L.88 and Add.1. 5 UN Conference on the Law of Treaties, Official Records, A/CONF.39/11, 15th meeting, para. 42. 6 Official Records, A/CONF.39/11, 18th meeting, 9 April 1968, para. 33 at 96. A/CONF.39/C.1/L.111. 7 Article 9bis, 15th and 18th meetings, 5 and 6 April 1968; Art. 12bis, 18th meeting. 8 Official Records, 1st and 2nd sessions, A/CONF.39/C.1/5, para. 13.

9 See infra para. 7. Sir Gerald Fitzmaurice and Sir Humphrey Waldock had abandoned this provision, making the choice of a separate enumeration of the different means for the States to express their consent. We can nevertheless mention that Waldock retained an element quite similar to ‘any other means if so agreed’ in the provision relating to ratification. YILC, under Art. 10, 1962, vol. II, pp 48–9. 10 Official Records, A/CONF.39/11, 15th meeting, p 81, paras 42–7. 11 Mr De Troyer, Official Records, A/CONF.39/11, 18th meeting, p 96, para. 34. 12 Ibid. 13 Official Records, A/CONF.39/11, 15th meeting, p 84, para. 47. 14 Official Records, A/CONF.39/11 Add.1, 2nd session, 9th meeting, p 24, para. 63. 15 Ibid, para. 74. Sir Humphrey Waldock (Expert Consultant) generally agreed with this result, although he was hesitant about the declarations made by newly independent States to the effect that they would still consider themselves bound by some of the treaties concluded by the former colonial power. According to him, this matter pertained to the domain of State succession. Some other States like Switzerland and Venezuela raised other objections without going so far as to reject the provision. Switzerland's representative, eg, considered that consent could not be expressed by a material act such as an exchange of instruments. Official Records, A/CONF.39/11, 1st session, 18th meeting, p 94, para. 3. 16 ILC, J. L. Brierly, Third Report on the Law of Treaties, A/CN.4/54, YILC, 1952, vol. II, p 51. 17 Ibid, p 51, para. 6. 18 H. Lauterpacht, First Report on the Law of Treaties, A/CN.4/63, YILC, 1953, vol. II, p 91, emphasis added. 19 Ibid, p 106, para. 1. 20 See the commentaries on Arts 12–15 of the 1969 Convention in this work. 21 Ch. Rousseau, Droit international public, Book 1, Introduction et sources (Paris: Sirey, 1970), p 75, para. 49 (own translation). 22 J. Basdevant, ‘La conclusion et la rédaction des traités et des instruments diplomatiques autres que les traités’, RCADI, 1926-V, vol. 15, p 545. 23 Ibid, p 574. 24 Ibid. 25 Ibid, p 576. 26 M. Frankowska, ‘De la prétendue présomption en faveur de la ratification’, RGDIP, 1969, pp 62–88. 27 P.-H. Imbert, ‘Le consentement des Etats en droit international. Réflexions à partir d'un cas pratique concernant la participation de la CEE aux traités du Conseil de l'Europe’, RGDIP, 1995, p 353. 28 H. Lauterpacht, First Report on the Law of Treaties, A/CN.4/63, YILC, 1953, vol. II, p 106, para. 1. 29 G. Balladore Pallieri, ‘La formation des traités dans la pratique internationale contemporaines’, RCADI, 1949-I, vol. 74, p 502. 30 P. Reuter, supra n 1, p 56, para. 95. 31 S. Rosenne, ‘ “Consent” and Related Words in the Codified Law of Treaties’ in La communauté internationales. Mélanges offerts à Charles Rousseau (Paris: Pedone, 1974), pp 229–30. 32 J. Combacau, Le droit des traités (Paris: PUF, 1991), p 37. 33 Ibid, p 37. 34 F. Poirat, supra n 2, p 44. 35 S. Bastid, Les traités dans la vie internationale. Conclusion et effets (Paris: Economica, 1985), p 66. To that author, the expression of a State's consent to be bound by an agreement is limited to the different procedures entailed by the enumeration in Art. 11. 36 Infra para. 33. 37 S. Bastid, supra n 35, p 47. 38 Ph. Gautier, Essai sur la définition des traités entre États. La pratique de la Belgique aux confins du droit des traités (Brussels: Bruylant, 1993), p 187. 39 G. Balladore Pallieri, supra n 29, p 509. 40 Ibid, pp 509–10. 41 L. Bouony, La conclusion des traités dans la République tunisienne (Tunis: Centre d'études, de recherches et de publication, Série Etudes de droit et d'Economie), vol. XVI, p 34. 42 Ch. Rousseau, supra n 21, p 108. 43 On the difficulties raising from the imperfect ratifications, see ibid, pp 108–11. These old provisions concerning the ratification of treaties were nevertheless abolished by the constitutional law of 1 June 2002. See on this issue, F. Horchani, ‘La Constitution tunisienne et les traités après la révision du 1er juin 2002’, AFDI, 2004, pp 138–71, esp. pp 139–48. 44 H. Ouazzani Chahdi, La pratique marocaine du droit des traités: Essai sur le droit conventionnel marocain (Paris: LGDJ, 1982), p 422.

45 Ibid, p 422. 46 Article 2, para. 1 stipulates that: ‘treaty’ means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation. 47 Ph. Gautier, supra n 38, p 82. 48 ICJ, Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain) case, 1 July 1994, ICJ Reports 1994, p 112. 49 Ibid, p 122, para. 22. 50 See supra para. 4. 51 A. Bolintineanu, ‘Expression of Consent to be bound by a Treaty in the Light of the 1969 Vienna Convention’, AJIL, 1974, p 673, note 11. 52 J. Combacau and S. Sur, Droit international public (6th edn, Paris: Montchrestien, 2004), p 118. 53 F. Poirat, supra n 2, p 44. 54 ICJ, North Sea Continental Shelf case, 20 February 1969, ICJ Reports 1969, p 3. 55 J. Barberis, ‘Le concept de “traité international” et ses limites’, AFDI, 1984, p 250. 56 See the commentary on Art. 3 of the 1969 Vienna Convention in this work. 57 PCIJ, Series A, no. 5, p 28. 58 Ibid. 59 PCIJ, Legal Status of Eastern Greenland case, 5 April 1933, PCIJ, Series A/B, no. 53. 60 Ibid, p 71. 61 A. Bolintineanu, supra n 51, p 673. 62 F. Poirat, supra n 2, p 37. 63 P.-H. Imbert, supra n 27, p 361. 64 eg see infra, 1986 Vienna Convention. 65 P. Fauchille, Traité de droit international public, Book I (8th edn, Paris: Rousseau, 1926), p 323. 66 YILC, 1953, vol. II, p 117, para. 5. 67 YILC, 1956, vol. II, p 113, para. 6. 68 Cour de Cassation, 25 January 1906, Pas. (1906-I), 95. Cited by Ph. Gautier, supra n 38, pp 484–5. 69 Ibid, p 111. 70 Hypothesis stressed by F. Poirat, supra n 2, p 43. 71 R. Y. Jennings, ‘Les traités’ in M. Bedjaoui (ed), Droit international, bilan et perspectives (Paris: Pedone, 1991-I), p 147, para. 9. 72 G. Burdeau, ‘Les engagements internationaux de la France et les exigences de l’État de droit', AFDI, 1986, p 845. 73 Ibid. 74 H. Ouazzani Chahdi, supra n 44, p 408. 75 A. Bolintineanu, supra n 51, p 677. 76 Lord McNair, The Law of Treaties (Oxford: Clarendon Press, 1961), p 19. 77 Exchange of letters concerning the settlement of problems arising from the Rainbow Warrior incident, signed in Paris, on 9 July 1986, JORF, pp 8750–2. 78 G. Apollis, ‘Le règlement de l'affaire du Rainbow Warrior’, RGDIP, 1981, pp 12–13. 79 B. Audit, ‘Présentation des Accords d'Alger’ in Le tribunal des différends irano-américain (CEDIN-Paris X, Publications Université Paris X, 1984), pp 20–1. 80 A. Bolintineanu, supra n 51, p 673. Article 11 would point out this way the essential role played by the negotiating States' will. Ibid, n 11. 81 YILC, 1952, vol. II, p 51 under Art. 4. 82 YILC, 1953, vol. II, p 106. 83 Lord McNair, supra n 76, p 7. 84 S. Rosenne, supra n 31, p 209. 85 P. Reuter, supra n 1, p 56, fn 93. 86 Ibid, p 56, fn 94. 87 Ibid. 88 Ibid. 89 Ibid. 90 Ibid, p 77, fn 94 and Official Records, 1st session, 5 April 1968, paras 43–8. 91 G. Burdeau, supra n 72, p 845.

92 Agreement of 27 May 1997 between the Government of the French Republic and the Government of the Russian Federation concerning the permanent settlement of the respective claims of France and Russia previous to 9 May 1945, JORF, 15 May 1998. 93 The negotiations on the French side were not conducted by the Ministry of Foreign Affairs, as expected, but by the Treasury Direction of the Ministry of Economy and Finances. 94 JORF, 31 May 1997, p 8416. 95 Ibid, the circulaire was making provision for the negotiators to avoid the use of the term, and when that had looked impossible, that they paid attention and specified the value France was attaching to such an instrument. 96 This resulted in practice in a Russian refusal of execution of the first deposit by 1 February 1997 and in an opposition to the subscription of any ‘additional protocol’. 97 Law no 97–1160 of 19 December 1997 and decree no 98–366 of 6 May 1998, JORF, 15 May 1998. 98 P. Reuter, supra n 1, p 56, fn 95. 99 P. Reuter, First Report on the Law of Treaties between States and International Organizations or between International Organizations, A.CN.4/258, YILC, 1972, vol. II, p 196, para. 81. 100 Ibid, p 188, para. 56. 101 S. Rosenne, supra n 31, pp 245–6. 102 F. Poirat, supra n 2, p 56. 103 Ibid. 104 Ibid. * Professeur à l'Université Paris Ouest Nanterre La Défense, Paris, France.

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Volume I, Part II Conclusion and Entry into Force of Treaties, s.1 Conclusion of Treaties, Art.11 1986 Vienna Convention Sandra Szurek From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Treaties, ratification — Treaties, signature — UNCLOS (UN Convention on the Law of the Sea)

(p. 206) 1986 Vienna Convention Article 11 Means of expressing consent to be bound by a treaty 1. The consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed. 2. The consent of an international organization to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, act of formal confirmation, acceptance, approval or accession, or by any other means if so agreed. 1. The question of the maintainance of a provision similar to Article 11 of the Vienna Convention on the Law of Treaties between States was raised during the first work sessions of the ILC on the issue of treaties between States and international organizations or between international organizations. As the Special Rapporteur Paul Reuter pointed out, the issue of the means of expressing consent to be bound by an international organization could have constituted one of the specificities that would have differentiated the matter, should the Conference have maintained the Commission's initial draft.1 The change in Article 11 by the adjunction of the final phrase, ‘by any other means if so agreed’, convinced Paul Reuter that the formula of the 1969 Convention was transposable as such to international organizations, especially as it underlined the importance of consent. 2. The addition of this final formula induced a considerable change in the meaning of the whole section since Article 11 served as an introductory provision. The Special Rapporteur thus became convinced that it was necessary to formulate an identical rule in the domain of treaties between States and international organizations or between international organizations.2 To Paul Reuter: the addition of that formula was tantamount to saying that, in public international law, there was a very great deal of flexibility in the means of concluding treaties because treaties could be concluded by any means on which the parties agreed, irrespective of the nature or description of such means.3 It was therefore for the sake of this flexibility requirement which is even more essential in the domain of treaties between States and international organizations or between international organizations,4 that the ILC adopted a provision highly similar to the one enshrined in Article 11 of the 1969 Convention. 3. The Special Rapporteur's opinion remained unchallenged and the formulation of draft Article 11 on treaties between States and international organizations or between international organizations raised no difficulties or major debates. In order to comply (p. 207) with the practice of international organizations, the Commission needed, however, to consider introducing some conceptual distinctions in the new draft. It focused therefore on the use of two terms: ‘to express’ and ‘to ratify’. 4. As far as the first expression is concerned, the Special Rapporteur proposed the use of the terms ‘to communicate’ or ‘to establish’ the consent of international organizations instead of ‘to express’, because the use of the latter term might suggest that: if the constituent instrument of the organisation contained no provision relating to the capacity of the organisation to conclude treaties, subordinate agents might be able not only to communicate the consent of the organisation to be bound, but also to define it.5 On second reading, however, the Commission reached the conclusion that there was no convincing reason to maintain this distinction and opted for a uniform terminology with the 1969 Vienna Convention.6 5. This distinction can be said simply to reflect a form of prudence on behalf of the Special Rapporteur. The fact is that he was plainly reluctant to use the term ‘ratification’ ‘because he had thought that it might not be appropriate to use that term to express the definitive consent of an organisation when the organisation had already given its provisional consent’.7 His misgivings were doubled by the fear that States would be upset by the use of this term due to its historical link with the notion of head of State. The Special Rapporteur felt even more inclined to set aside this term due to the fact that he could not find more than one example in practice of ratification by an international organization.8 As a result, practice was clearly not upholding this point of view. The unique example came from an agreement between Italy and the UN Food and Agriculture Organization on 31 October 1950 which mentioned a resolution of the Conference authorizing the Director-General to negotiate an agreement provided that it was referred to the Council ‘for ratification’.9 6. The Commission was quite divided on the issue. Among those who were sensitive to the Special Rapporteur's arguments, were members who subscribed to them without any reservations,10 while others were more cautious and proposed maintaining the term ‘in order to keep up with further development’.11 In the end, the arguments for keeping the notion of ‘ratification’ as an expression of an international organization's consent to be bound partially overcame the Special Rapporteur's scruples.12 The main argument in favour was that the contemporary ratification procedures applied by States were so diverse that there was almost nothing left from their monarchic origins. Nevertheless, the Commission was itself keen on

reserving the term to States. With regard to international organizations it preferred the expression ‘act of formal confirmation’ to characterize an analogous procedure for international organizations to express their consent to be bound.13 7. These reflections on the necessity to adapt the 1969 text to the specific matter of treaties between States and international organizations or between international (p. 208) organizations aside, the 1986 Vienna Convention reiterates word for word Article 11 of the 1969 Convention. 8. The practice is here even more heterogeneous than in the field of treaties between States, as the Special Rapporteur so often indicated. It evades any attempt at systematization, so great is the freedom governing the matter, in particular when it comes to terminology.14 Hence, the final mention ‘by any other means if so agreed’ proves itself even more indispensable in this context. The conventional practice of international organizations is diversified subject to their internal rules, the matter concerned, and the contracting parties. It therefore did not seem useful to draw a distinction in Article 11 itself. 9. Some institutional practices are, however, peculiar enough to be worth mentioning. One of the classical means to express consent to be bound is the signature ad referendum, which is the signature made by a State following establishment of the final version and this by virtue of a competence granted by the treaty.15 This means to express consent, reserved to the member States of the organization (as is the case for the Council of Europe), is to be distinguished from the accession of a non-member State that can however become a party to a treaty, which allows this by signing a declaration of accession. Normally, the accession takes place by the deposit of an instrument of accession with the Council of Europe Secretary General. But more peculiar situations were identified by some authors. A.-C. Kiss gives the example of the European Convention on the International Classification of Patents for Invention that establishes a means of accession by notifying the Government of the Swiss Confederation through diplomatic channels.16 10. If the exchange of letters, notes, or communications is common practice, the exchange of letters consisting of two instruments, an offer and an acceptance, is too formalistic an international instrument, and is therefore less used than in State practice. One could compare these expressions of consent to be bound with the one encountered in treaties concluded in solemn form. Other means to express consent to be bound are even less formal. The adoption of understandings takes place without any signature, only through a list of participants, annexed to the treaty.17 Another expanding form to express consent is the establishment of a legal obligation in the absence of objection. This is the procedure of Article 3 of the Washington Convention of 2 December 1946 creating the International Whaling Commission.18

References 11. Finally, international agreements adopted within an international organization can enter into force ‘even though the consent of the States, necessary to this entry into force, was not expressly stated’.19 The technique of negative notification consists of notifying a treaty or a modification to a treaty to the States parties, so that their lack of objection results in the adoption of the act or the modification. A similar procedure was retained in Part XI of the 1982 United Nations Convention on the Law of the Sea. *

SANDRA SZUREK

References

Footnotes: 1 ILC, P. Reuter, First Report on the Law of Treaties between States and International Organizations or between International Organizations, A.CN.4/258, YILC, 1972, vol. II, p 188, para. 56. 2 ILC, P. Reuter, Fourth Report, A/CN.4/285, YILC, 1975, vol. II, p 27, para. 3. 3 YILC, 1975, vol. I, 1347th meeting, 9 July 1975, p 227, para. 4. 4 Ibid. 5 Ibid, para. 3. 6 YILC, 1982, vol. II, Part Two, p 30, para. 4. 7 YILC, 1975, vol. I, 1347th meeting, 9 July 1975, p 227, para. 5. 8 ILC, P. Reuter, Fourth Report, A/CN.4/285, YILC, 1975, vol. II, p 33, n 31. 9 Ibid. 10 Mr Sette Camara, 1347th meeting, 9 July 1975, YILC, 1975, vol. I, p 229, para. 16. 11 Mr Rossides, ibid, para. 20. 12 Mr Tammes, ibid, p 228, para. 10. 13 Draft Articles adopted by the ILC, 1750th meeting, 21 July 1982, YILC, 1982, vol. II, Part Two, p 30, para. 3. 14 ILC, Report to the General Assembly, A/10010/Rev.1, 5 May–25 July 1975. 15 A.-C. Kiss, ‘Accords conclus au sein du Conseil de l'Europe’, AFDI, 1962, p 726. 16 STE, No 17, Art. 5(2), cited by A. C. Kiss, ibid, p 734 and n 24. 17 E. Lagrange, La représentation institutionnelle dans l'ordre international. Une contribution à la théorie de la personnalité morale des organisations internationales (The

Hague: Kluwer, 2002), p 363, n 1. 18 Ibid, p 377. 19 P.-H. Imbert, ‘Le consentement des Etats en droit international. Réflexions à partir d'un cas pratique concernant la participation de la CEE aux traités du Conseil de l'Europe’, RGDIP, 1995, p 353. * Professeur à l'Université Paris Ouest Nanterre La Défense, Paris, France.

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Volume I, Part II Conclusion and Entry into Force of Treaties, s.1 Conclusion of Treaties, Art.12 1969 Vienna Convention Cédric van Assche From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Treaties, signature — Treaties, conclusion — Customary international law — State practice — Treaties, entry into force — Travaux préparatoires — Treaties, ratification

(p. 209) 1969 Vienna Convention Article 12 Consent to be bound by a treaty expressed by signature 1. The consent of a State to be bound by a treaty is expressed by the signature of its representative when: (a) the treaty provides that signature shall have that effect; (b) it is otherwise established that the negotiating States were agreed that signature should have that effect; or (c) the intention of the State to give that effect to the signature appears from the full powers of its representative or was expressed during the negotiation. 2. For the purposes of paragraph 1: (a) the initialling of a text constitutes a signature of the treaty when it is established that the negotiating States so agreed; (b) the signature ad referendum of a treaty by a representative, if confirmed by his State, constitutes a full signature of the treaty. A. General characteristics 210 Object and purpose 210 Customary status 214 Signature 214 Initialling 216 Signature ad referendum 217 B. Problems of interpretation 217 Signature 217 Definition 217 Methods of proof of consent by signature 218 Methods of proof of collective will (Article 12(1)(a) and (b)) 218 Intrinsic proof 218 Extrinsic proof 219 Methods of proof of individual will (Article 12(1)(c)) 224 Proof by full powers 225 Proof by unilateral declaration 226 Absence of any suppletory rule 227 Initialling 229 Definition 229 Proof of the agreement 229 State practice and practice of the UN Secretary-General 230 Intrinsic proof 231 Extrinsic proof 232 The initials of head of State, head of government, or minister for foreign affairs 232 Initialled accessory documents 234 Conclusion 234 The signature ad referendum 235 Definition 235 Act of confirmation 235 State practice and practice of the UN Secretary-General 237 (p. 210) C. Problems of validity 238 International validity 239 Internal validity 239

Bibliography Bastid, S., ‘Enquêtes sur les traités. Résultats d'une enquête sur les conditions de conclusion des traités et sur les clauses relatives au règlement des différends’, AFDI, 1967, pp 544–6

Blix, H., ‘The Requirement of Ratification’, BYBIL, 1953, pp 352–80 Bolintineanu, A., ‘Expression of Consent to Be Bound by a Treaty in the Light of the 1969 Vienna Convention’, AJIL, 1974, pp 672–86 Chayet, C., ‘Les accords en forme simplifiée’, AFDI, 1957, pp 3–13 Devaux, J., ‘La conclusion des traités internationaux en forme s’écartant des règles constitutionnelles et dite “conclusion en forme simplifiée” ', Revue internationale française du droit des gens, 1936, vol. I, pp 299–309 Fitzmaurice, G., ‘Do Treaties Need Ratification?’, BYBIL, 1934, pp 113–37 Frankowska, M., ‘De la prétendue présomption en faveur de la ratification’, RGDIP, 1969, pp 62–88 Hamzeh, F. S., ‘Agreements in Simplified Form—Modern Perspective’, BYBIL, 1968–69, pp 179–89 Jones, M., ‘International Agreements Other than “Inter-State Treaties”—Modern Developments’, BYBIL, 1944, pp 111–22 Marcus-Helmons, S., ‘Les accords en forme simplifiée et le droit constitutionnel’, ADSP, 1961, pp 293–313 Rosenne, S., ‘ “Consent” and Related Words in the Codified Law of Treaties’ in Mélanges offerts à Charles Rousseau. La communauté internationale (Paris: Pedone, 1974), pp 229–48 Smets, P.-F., La conclusion des accords en forme simplifiée. Etude de droit international et de droit constitutionnel et comparé (Brussels: Bruylant, 1969), p 282 Villiger, M. E., Commentary on the 1969 Vienna Convention on the Law of Treaties (Leiden: Martinus Nijhoff, 2009), pp 181–94 Wildhaber, L., ‘Executive Agreements’ in Rudolf Bernhardt (ed.), Encyclopedia of Public International Law, vol. II (Amsterdam: Elsevier, 1999), pp 312–18

A. General characteristics Object and purpose 1. With regard to its object, Article 12 of the 1969 Vienna Convention sets out three means of expressing consent to be bound by a treaty, namely signature, initialling, and signature ad referendum subsequently confirmed. Indeed, Article 12 allows States to express, if need be, their consent to be bound by a treaty by appending a signature, an initialling, or a signature ad referendum subsequently confirmed. 2. As regards its purpose, Article 12 undoubtedly aims at simplifying the international procedure of conclusion of treaties, allowing States willing to conclude a treaty immediately to express their consent to be bound by affixing a definitive signature, an initialling, or a signature ad referendum subsequently confirmed. As international cooperation between States nowadays becomes more intense and covers various fields, Article 12 meets a real need in the community of States. Arguably, reasons of simplicity, celerity, flexibility, discretion, efficiency, internal or external politics, reasons of domestic constitutional law, or the (p. 211) immediate certainty as to the commitments entered into explain why this means of conclusion nowadays experiences great success and is widespread.1 The conclusion of such treaties is, indeed, immediate. The procedure of conclusion is said to be ‘simplified’ or ‘short’.2 For this reason, treaties concluded pursuant to Article 12 are classically known in the literature as treaties in simplified form3 (in French: accords en forme simplifiée),4 as opposed to ‘formal’ or ‘solemn’ treaties. This means that their conclusion does not require any subsequent act (such as ratification, for instance), as the sole signature or initialling expresses the definitive consent of the signatory or initialling State. In this case, signature (p. 212) and initialling may be a means of authentication of a treaty as well as a means of expressing consent to be bound by it.5

References 3. Accordingly, treaties in simplified form are international treaties with particular methods of conclusion. As outlined by the ILC: The juridical differences, in so far as they really exist at all, between formal treaties and treaties in simplified form lie almost exclusively in the method of conclusion and entry into force. The law relating to such matters as validity, operation and effect, execution and enforcement, interpretation, and termination, applies to all classes of international agreements.6 4. If the conclusion of treaties in simplified form is immediate, the same applies in general to their entry into force. So, for instance, the entry into force of a treaty shall be immediate in case a final clause provides that the treaty will come into force on the day of its signature.7 However, this will not always be the case.8 Conclusion and entry into force are, indeed, two separate legal operations,9 even if they may coincide. If the conclusion stricto sensu of a treaty results from the meeting of two or more consents to be bound by a treaty,10(p. 213) the entry into force produces, in principle, the full juridical effects of the treaty concerned. Two examples will illustrate the difference between, on the one hand, the conclusion of a treaty and, on the other hand, the entry into force of a treaty and the production of legal effects. First, the Agreement between the government of the Federal Republic of Germany and the government of the Republic of Poland concerning the prevention of incidents at sea beyond the territorial sea, signed in Bonn on 27 November 1990.11 Article 9(2) of this Agreement provides that ‘[t]his Agreement with Annex shall enter into force one month after its signature’.12 The Agreement concluded on 27 November 1990 thus entered into force on 27 December 1990, one month after the date of its signature. Secondly, the General Framework Agreement (GFA)

that brought an end to the tragic conflict in Bosnia and Herzegovina, concluded in 1995 between the Republic of Bosnia and Herzegovina, the Republic of Croatia, and the Federal Republic of Yugoslavia.13 The GFA was initialled on 21 November 1995 at Wright-Patterson Air Force Base near Dayton, Ohio, and signed in Paris on 14 December 1995. In this respect, the parties agreed that their initialling also expressed their consent to be bound by the GFA.14 Consequently, the GFA was concluded in Dayton on 21 November 1995. However, pursuant to its Article XI,15 the GFA entered into force on the date of signature, on 14 December 1995.16 Moreover, treaty practice reveals instances where the treaty, although concluded by signature, enters into force according to the terms provided for in the final clause known as ‘notification of completion of internal legal requirements’ clause.17 So, for instance, the Agreement between the government of the Federal Republic of Germany and the government of the Republic of Poland concerning the German-Polish youth organization,18 concluded in Bonn on 17 June 1991, provides in Article 13: This Agreement shall enter into force as soon as the two Governments have notified one another that the respective domestic requirements for the entry into force of the Agreement have been fulfilled. The date of receipt of the final notification shall be considered the date of entry into force of the Agreement.19 The Agreement entered into force on 21 September 1992, the date of receipt of the last of these notifications through which the parties are informed about the completion of the respective internal formalities.20

References

(p. 214) Customary status 5. Preliminarily, it should be noted that Article 12 of the Vienna Convention was adopted by 95 votes to 1, with 5 abstentions,21 that Costa Rica, Guatemala, and Peru formulated reservations with regard to Article 12, and that Austria, Belgium, Denmark, Finland, Germany, and Sweden formulated objections against these reservations.22 Having said this, does Article 12 reflect customary international law? In this respect, we will successively study the question of the customary status of the signature, the initialling, and the signature ad referendum subsequently confirmed.

Signature 6. The customary status of the rule according to which the signature of a representative may definitively bind his State is firmly established in diplomatic practice.23 In this respect, it may unquestionably be held that Article 12(1) of the Vienna Convention states a customary means of expressing consent to be bound by a treaty. State practice abounds in this sense. This simplified procedure24 has, in fact, its origins in the US constitutional practice of ‘executive agreements’ developed since the late eighteenth century, which are agreements concluded by the President of the United States without the advice and consent of the US Senate.25 This US practice spread rapidly throughout the European continent at the beginning of the nineteenth century and became subsequently widespread during the twentieth century.26 If, at the beginning of the nineteenth century, formal treaties exceeded by far in number treaties in simplified form, this tendency was progressively reversed so that nowadays the vast majority of treaties are concluded in simplified form.27(p. 215) Concerning the opinio juris sive necessitatis, States have never disputed the binding legal value of treaties concluded in simplified form.28 In spite of different methods of conclusion, there exists a material equivalence between solemn treaties and treaties in simplified form, all having the same binding force.29 7. Moreover, the subjects covered by treaties in simplified form are the most varied. If it is true that at the outset treaties in simplified form were restricted to military, administrative, or technical questions, or connected to a formal treaty (interpretative agreement, implementing agreement, agreement containing provisional or preparatory measures, etc.), they presently cover all domains of international relations.30 For instance, numerous important political treaties were concluded in simplified form. The 1938 Munich Agreement on the cession of the Sudeten territory to Germany, the 1954 Franco-German Agreement on the Saar, the Final Act of the 1973 Paris Conference on Ending the War and Restoring Peace in Vietnam, the Geneva Agreements of 1962 on the neutrality of Laos are all treaties concluded in simplified form.31 States practice nowadays reveals a quasi-interchangeability of forms, treaties concluded in solemn or simplified form dealing with similar subjects and creating the same obligations.32

References 8. Legal literature also examined ‘signature’ as a means of expressing consent to be bound.33 Similarly, international case law concluded that signature may be tantamount to final consent of the signatory State. So for instance the International Court of Justice (ICJ), without however referring expressis verbis to Article 12(1) of the 1969 Vienna (p. 216) Convention,34 recognized in the Maritime Delimitation and Territorial Questions between Qatar and Bahrain case that the document entitled ‘Minutes’, signed at Doha on 25 December 1990 by the ministers of foreign affairs of Bahrain, Qatar, and Saudi Arabia, constituted an international agreement taking effect at the time of the signature and creating rights and obligations for the parties.35 Similarly, in the Land and Maritime Boundary between Cameroon and Nigeria case, the Court clearly affirmed the customary character of the rule pursuant to which the signature of a State representative may definitively bind his State:

The Court cannot accept the argument that the Maroua Declaration was invalid under international law because it was signed by the Nigerian Head of State of the time but never ratified. Thus while in international practice a two-step procedure consisting of signature and ratification is frequently provided for in provisions regarding entry into force of a treaty, there are also cases where a treaty enters into force immediately upon signature. Both customary international law and the Vienna Convention on the Law of Treaties leave it completely up to States which procedure they want to follow…. In the Court's view, that Declaration entered into force immediately upon its signature.36

References 9. However, it should be noted that the methods of proof of consent to be bound by signature as enumerated in sub-paragraphs (a), (b), and (c) of paragraph 1 of Article 12 are not all necessarily part of customary international law.37 With regard to the methods of proof of the collective will as listed in sub-paragraphs (a) and (b) of paragraph 1 of Article 12, it results from uniform and diplomatic practice that these methods undoubtedly form part of customary international law.38 However, as regards the two methods of proof of the individual will listed in Article 12(1)(c), if the production of full powers is a method of proof recognized by international law because of an uniform and constant diplomatic practice, it is unclear whether the unilateral declaration expressed during negotiations is part of customary international law, failing conclusive diplomatic practice to this effect.39

Initialling 10. Does initialling possibly constitute a customary means of expressing consent to be bound by a treaty? Diplomatic practice of States sometimes admits that initialling by a representative of a State may definitively bind that State if it is established that the negotiating (p. 217) States so agreed. State practice indeed provides some rare cases where initialling, especially by a head of State, a head of government, or a foreign minister was deemed to express consent.40 Initialling may hence be considered a customary means of expressing consent to be bound. One may therefore conclude that Article 12(2)(a) of the Vienna Convention codifies a rule of customary international law.41

References

Signature ad referendum 11. Lastly, one has to determine whether signature ad referendum may also be considered as a customary means of expressing consent to be bound by a treaty. Diplomatic practice— admittedly extremely rare—accepts that a signature ad referendum, if confirmed, constitutes a full signature for the purposes of the rules regarding consent to be bound by a treaty expressed by signature.42 Therefore, Article 12(2)(b) of the Vienna Convention probably declares a rule of customary international law.43

References

B. Problems of interpretation 12. Article 12 lists signature, initialling, and signature ad referendum subsequently confirmed as means of expressing consent to be bound by a treaty. The application of Article 12 may, however, raise some problems of interpretation. We will successively examine the problems of interpretation relating to signature, initialling, and signature ad referendum.

References

Signature Definition 13. The 1969 Vienna Convention does not contain any definition of the term ‘signature’. Pursuant to the general rule of interpretation as codified in Article 31 of the Vienna Convention, the term ‘signature’ shall be interpreted in accordance with the ordinary meaning to be given to this term. Signature may hence be defined as the name or mark of (p. 218) a person written in his or her own handwriting on a document.44 Signature is called ‘definitive’ when it expresses the consent of the State to be bound by the treaty. In this case, a State expresses its consent to be legally bound by signature alone. On the contrary, signature is called ‘simple’ when signature is subject to ratification, acceptance, or approval.45

Methods of proof of consent by signature 14. Methods of proof of the consent to be bound by signature are enumerated in subparagraphs (a), (b), and (c) of paragraph 1 of Article 12 of the Convention. These methods can be divided into two categories according to whether they express a collective or individual will.

Methods of proof of collective will (Article 12(1)(a) and (b)) 15. Methods of proof of collective will are stated in sub-paragraphs (a) and (b) of paragraph 1

of Article 12 which provides that the consent of a State to be bound by a treaty is expressed by the signature of its representative when the treaty provides that signature shall have that effect or when it is otherwise established that the negotiating States46 were agreed that signature should have that effect. The signature of a treaty will constitute, indeed, a method of expression of the consent to being bound insofar as the States expressed an agreement in this sense; either that the treaty in question envisages it expressly or implicitly (intrinsic proof), or that it is otherwise established that the negotiating States were expressly or implicitly agreed that it would be so (extrinsic proof). Let us analyse, in turn, these two methods of proof. Intrinsic proof

16. The first method of proof of collective will of the States, having taken part in the negotiation, is the proof known as ‘intrinsic’ as envisaged in Article 12(1)(a) of the Convention, by virtue of which the consent of a State to being bound by a treaty is expressed by the signature of the representative of that State when the treaty provides that signature shall have that effect.47 In other words, proof of the agreement to allot to the signature the quality of a means of expressing consent to be bound will be intrinsically found, either explicitly or implicitly, in the treaty itself.48 One can invoke, for illustrative purposes, Article 4 of the Agreement relating to the implementation of Part XI of the United Nations Convention on the Law of the Sea, adopted on 29 July 1994, which provides several possibilities for this purpose for the States eager to express their consent to be bound by the aforementioned Agreement, among which signature is not subject to ratification or formal confirmation.49 Thus, the proof of this collective will (explicit) is to be found in the treaty text itself.50 In the (p. 219) same way, one can reasonably infer from a final clause stipulating that the treaty will enter into force at the date of its signature, that the appended signatures are worth consent.51 Many bilateral treaties contain such a final clause.52 See, for example, Article XIII of the Air Transport Agreement,53 signed on 3 December 1946 by the government of the United States and the government of New Zealand, which is worded as follows: ‘This Agreement, including the provisions of the Annex thereof, will come into force on the date it is signed’.54 Proof of the common will of the two contracting parties is thus implicitly to be found in the treaty text itself, namely in the final clause pertaining to the entry into force of the treaty.55 Indeed, common will of the States as recorded in the text of the bilateral treaty admits that the signature is worth final consent.

References 17. In conclusion, in these cases, proof of common will of the States thus arises intrinsically from the treaty text itself. For this reason, the proof is said to be ‘intrinsic’. Extrinsic proof

18. The second method of proof of collective will is known as ‘extrinsic’. Indeed, in many cases the treaty in question remains silent on the legal consequences of signature. Proof of collective will consequently has to be sought outside the treaty text itself. Owing to the fact that general international law on the matter does not impose formal requirements, it is therefore advisable to examine whether the negotiating States did not otherwise express a collective will for this purpose. In this respect, the principle of the autonomy of will of the negotiating States constitutes a guiding principle.56 This is the ratio legis of Article 12(1)(b) of the Convention, which stipulates that the consent of a State to be bound by a treaty is expressed by the signature of its representative when it is otherwise established that the negotiating States were agreed that signature should have that effect. It may be, indeed, that these States expressed, in another manner, their will to regard the affixing of a signature as a final expression of their consent to be bound. In this respect, the Special Rapporteur on the law of treaties concluded between States and international organizations or between two or more international organizations, Paul Reuter, stressed in 1975 that: It could hardly be denied that, in the spirit of the Vienna Convention, the words ‘it is otherwise established that the…States…were agreed’ could apply to an oral or even a tacit agreement.57 (p. 220) 19. However, the Vienna Convention does not identify which are the means to detect the collective intention of the parties. In this respect, the ILC emphasized, in its final commentary, that ‘in this case it is simply a question of demonstrating the intention from the evidence’.58 Moreover, the expression ‘is otherwise established’ is extremely vague. Precisely because of its general and vague nature, Article 12(1)(b) seems to admit any means of proof of collective intention of the parties.59 Steps should be taken, nevertheless, to examine the diplomatic practice in order to determine which indices or elements of proof can, if need be, be described as relevant and even conclusive ones. While making it possible for the States to express their collective will elsewhere than in the text of the treaty, regarding the legal effect of their signature, the Vienna Convention is based, indeed, on precedents.60 In case the text of the treaty itself does not resolve the question of the legal consequences of the signature, the intention of the negotiating States shall have to be established in accordance with the principles of interpretation as set forth in Articles 31 to 33 of the Vienna Convention.61 Consequently, a careful examination will be necessary, among other things, of the context,62 of any later agreement,63 of any subsequent applicative and interpretative practice,64 of the travaux préparatoires of the treaty,65 as well as all the circumstances of its conclusion.66 20. It will fall, therefore, to the interpreter to examine the context, the preparatory work, and the circumstances surrounding the conclusion of the treaty, in order to be able to detect or, if necessary, to reconstitute the collective will (actual or presumed) of the negotiating States. An examination of the context can thus reveal the existence of a collateral agreement, related to

the principal treaty and entered into between all the parties at the time of the conclusion of the treaty concerned, which provides that the affixing of the signature amounts to final consent to the treaty. In the same way, it may be that out of the circumstances of the conclusion—such as the holding of unofficial conversations (p. 221) on this subject, published joint communiqués or joint statements made during the negotiations, the urgency of the conclusion,67 the high rank of the representatives signatories (head of State or government, minister of foreign affairs),68 the low rank of the signatory civil servants,69 the presence of ‘witness’ States at the time of the signing ceremony70—the collective will of the parties arises to regard the signature as a means of expressing consent to be bound by the treaty in question. Furthermore, subsidiary or accessory instruments (protocol, declaration, etc.) to a principal treaty concluded by signature will be assumed, in the absence of contrary intention, to be concluded by signature.71 21. In any event, each case is unique and everything boils down to a question of intention—if not real, at the very least presumed—of the States concerned.72 In this respect, the negotiating States have total freedom to express their will on this subject by any means whatsoever. This is why Article 12(1)(b) seems to accept all means of proof of the collective will of the negotiating States. Thus, recourse to the testimony of a representative of a ‘witness’ State, present during the signing ceremony, would be an admissible means of proof. 22. With the exception of the context, the preparatory work, and the circumstances surrounding the conclusion of the treaty, it is not impossible that the common and constant practice of the States concerned can also, if necessary, constitute an indicium, even an acceptable means of proof.73 Thus the fact that similar treaties concluded by the parties between them or concluded by each of the parties with third States were concluded by signature can constitute evidence of the will of the States concerned.74 In the same way, it (p. 222) is probable that the note published by the UN Secretariat accompanying the publication of the treaties in the United Nations Treaty Series and indicating that the treaty in question entered into force on the date of its signature, also constitutes an indicium, even an admissible means of proof.75

References 23. For some authors, the formal criterion of the denomination of the conventional instrument constitutes an indicium or a piece of evidence of the intention of the negotiating States to regard their signature as a means of expressing their final consent to be bound.76 Thus, the signature would express the consent to be bound by treaties termed ‘Agreement’, ‘Final Act’, ‘General Act’, ‘Aide-Mémoire’, ‘Arrangement’, ‘Avenant’, ‘Communication’, ‘Compromise’, ‘Joint Declaration’, ‘Joined Documents’, ‘Memorandum of Agreement’, ‘Modus Vivendi’, ‘Approved Minutes’, ‘Protocol of Signature’, ‘Regulation’, etc.77 In our opinion, such formal criterion must be used with great caution.78 Indeed, if it is true that these legal instruments are usually not subjected to a ‘long’ procedure, it is just as true that such is not always the case.79 Moreover, the choice of such-and-such denomination is sometimes due to considerations of mere opportunity.80 It is only if the use of a particular form corresponds to a particular intention resulting from a common and constant practice of the States concerned, that the denomination of the instrument could, if necessary, constitute an indicium, even a means of acceptable proof.81 24. Lastly, a certain doctrine contends that the nature, the contents, or the object of the treaty constitutes evidence of the collective will of the States in favour of the signature as a means of expressing consent.82 Thus, in the event the text is silent, technical and (p. 223) administrative agreements would be concluded by signature.83 If it is true that the practice of States admits in general that consent is expressed by signature for administrative or implementing agreements,84 this, however, is not an absolute rule.85 Here still, it is only if a particular intention can be deduced from the nature of the act due to a common and constant practice of the States in question, that the criterion of the nature of the conventional act could, if necessary, be taken into account. 25. In conclusion, in the best of the cases, the interpreter will infer from the context, the preparatory work, the circumstances of the conclusion of the treaty, the practice of the States concerned, and the note published in the United Nations Treaty Series, a number of indicia, even of evidences allowing detection of the collective intention of the States concerning the legal consequences of their signature.86 In the worst of the cases, the intention of the parties will have to be established, and even presumed, on the basis of one single element of evidence. International law, however, leaves to the free examination of the interpreter—if necessary, of the judge—the task of solving the delicate question of the weighting of the indicia or evidence thus obtained. As Manfred Lachs underlined, an international jurisdiction ‘enjoys a complete liberty of action and appreciation as for the evidence which are presented to [it], and that for the facts as for the law’.87 Thus, the interpreter will have to determine, on the basis of the indicia and evidence brought to his attention, if the parties in question wanted to affix a simple or definitive signature. Let us underline finally that neither the Vienna Convention on the Law of Treaties nor customary international law contain any suppletory rule in the event of absence of intention on behalf of the interested States.88

References (p. 224) Methods of proof of individual will (Article 12(1)(c)) 26. According to Article 12(1)(c), the consent of a State to be bound by a treaty is expressed by the signature of the representative of that State when the intention of the State to give that effect to the signature appears from the full powers of its representative or from the fact that

it was expressed during the negotiations. If the methods of proof of the collective will aim at detecting a collective intention of the negotiating States, the methods of proof of the individual will have, on the contrary, as their purpose, to identify the intention of a State considered individually. Indeed, it is not unusual in practice for certain States to express through ratification their consent to be bound by the treaty, while others express their consent by the affixing of a definitive signature.89 Legal and political reasons can explain that the same treaty can thus be concluded in a simplified form for some parties and in a solemn form for others.90 Indeed, in this respect, many conventions exist which allow the States to express their consent to be bound by various means.91 27. It should be noted that the methods of proof of individual will constitute, in principle, independent methods of proof with regard to the methods of proof of collective will. In this respect, one could probably speak of the application of the principle of the autonomy of the methods of proof. Thus, recourse to the methods of proof of individual will is perfectly justified when the treaty remains silent on the question or when it is not otherwise established that the negotiating States were agreed that the signature would entail final consent92 or when the treaty envisages, on the contrary, various means of expressing consent to be bound (among which definitive signature).93 Is the recourse to the methods of proof of individual will also acceptable if the treaty in question envisages ratification or accession as the sole means of expressing consent to be bound? Would the principle of the autonomy of the will of the State constitute, in this respect, a guiding (p. 225) principle? The question divides the legal literature.94 The ICJ, in the North Sea Continental Shelf, seemed to respond negatively.95 Indeed, the Court held that: In principle, when a number of States…have drawn up a convention specifically providing for a particular method by which the intention to become bound by the régime of the convention is to be manifested—namely by the carrying out of certain prescribed formalities (ratification, accession), it is not lightly to be presumed that a State which has not carried out these formalities, though at all times fully able and entitled to do so, has nevertheless somehow become bound in another way. Indeed if it were a question not of obligation but of rights,—if, that is to say, a State which, though entitled to do so, had not ratified or acceded, attempted to claim rights under the convention, on the basis of a declared willingness to be bound by it, or of conduct evincing acceptance of the conventional régime, it would simply be told that, not having become a party to the convention it could not claim any rights under it until the professed willingness and acceptance had been manifested in the prescribed form.96 The Court reserves, however, the situation of estoppel: Having regard to these considerations of principle, it appears to the Court that only the existence of a situation of estoppel could suffice to lend substance to this contention,—that is to say if the Federal Republic were now precluded from denying the applicability of the conventional régime, by reason of past conduct, declarations, etc., which not only clearly and consistently evinced acceptance of that régime, but also had caused Denmark or the Netherlands, in reliance on such conduct, detrimentally to change position or suffer some prejudice.97

References 28. Let us now briefly examine the two methods of proof of the individual will, as mentioned in Article 12(1)(c) of the Vienna Convention. Proof by full powers

29. It is accepted that the consent of a State to be bound by a treaty is expressed by the signature of the representative of that State when the intention of the State to give signature that effect appears from the full powers of its representative. The State in question, consequently, will have to deliver full powers containing a clause under the terms of which its representative is authorized to express, by the sole signature, the consent of that State to be bound by the treaty.98 However, State practice shows that such clauses are not (p. 226) always drafted in perfectly clear terms.99 The clear drafting of such clauses is most desirable as the purpose of the production of full powers is, in particular, to inform the other negotiating States of the intention of the State in question. 30. Finally, it should be noted that this method of proof of individual will is also envisaged in Article 7(1)(a) of the Vienna Convention which states that 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 he produces appropriate full powers.100 Proof by unilateral declaration

31. The consent of a State to be bound by a treaty is expressed by the signature of the representative of that State when the intention of the State to give that effect to the signature was expressed by that representative during the negotiation. This method of proof evidences a preoccupation of flexibility and an absence of formalism in the expression of the consent of the State to be bound by a treaty.101 32. Recourse to this method of proof is fully justified when the representative of a State, such as a head of State or of government or a minister for foreign affairs, acts without full powers. Here, a declaration made by this representative during the negotiation will be duly taken into account in the determination of the legal consequences of the signature on the international plane. It may be that such declarations are sometimes reproduced in the minutes of the 102

negotiation meetings.102 However, recourse to this method of proof causes real difficulties when the representative of the State is provided with full powers to sign a treaty subject to ratification, acceptance, or approval.103 In this case, what is the legal value of a statement made during the negotiation where the representative declares that he or she will sign the treaty with binding effect? On this subject, several remarks must be formulated. First, a representative of a State can, on his or her own initiative, neither modify his or her full powers nor make a statement during the negotiation that is in contradiction to his or her full powers.104 Second, it may be that the government will exceptionally revoke the full powers granted to its representative by authorizing him or her to make a statement for that purpose.105 It cannot thus be a (p. 227) question of any declaration by the representative of the State, but due to the fact that the State in question has, by the voice of its representative, clearly expressed during the negotiation its intention to give the desired effect to the signature.106 Lastly, by thus revoking the contents of the full powers, the State in question consequently relinquishes the right to invoke Article 47 of the Vienna Convention insofar as the specific restriction of the authority to express the consent of the State, even if notified to the other negotiating States, can no longer be invoked as invalidating the consent it expressed with regard to the treaty. This conclusion is justified due to the fact that good faith also applies during the negotiations.107

References 33. As for the question of the author of such declarations, Article 12(1)(c) covers with certainty the assumption where the statement was made by the representative of the State taking part in the negotiations in progress. However, considering the purpose of Article 12(1) (c) as well as the general character of the expression ‘or was expressed during the negotiation’, the statements made by organs or agents of the State not participating physically in the negotiations during the latter and communicated to the other States should also be taken into account. Thus a press release or a televised statement made by the head of the State constitutes an instance of proof of individual will of that State, acceptable under the terms of Article 12(1)(c). Arguably, such declarations could, in certain cases, also generate rights and obligations under the general theory of unilateral acts.108 In this respect, in principle it cannot be ruled out that the maxims declaratio est servanda or acta sunt servanda could, if necessary, be considered applicable.

Absence of any suppletory rule 34. The Vienna Convention does not contain any suppletory rule in cases where the intention of the signatory States was not expressed.109 This, in our opinion, is also the current state of general international law where no hierarchy whatsoever exists between the means of expression of the consent to be bound by a treaty or any presumption in favour of a particular means.110 Indeed, international law takes as a premise that States express, either explicitly or implicitly, a collective and/or individual will as regards the legal consequences of their signature. The principle of autonomy of the will of the negotiating States is the guiding principle on the matter.111 In order to ascertain this will, recourse to various (p. 228) methods of proof will facilitate the interpreter's task. The latter shall, if necessary, have to detect the smallest indicia or elements of evidence in order to release, or even presume, the will of the State or States in question. However, experience lists cases—indeed rather exceptional112— where the States did not express any intention as regards the means of expressing their consent to be bound by the treaty or, on the contrary, expressed conflicting claims as regards the means agreed.113 However, it should be noted that none of these cases gave rise to disputes, the States having arguably expressed their intention on this subject a posteriori or having settled the question by negotiations.114 35. Neither the Vienna Convention on the Law of Treaties nor customary international law thus contains any suppletory rule in the event of absence of evidence of the intention of the signatory States. To suppose, however, such an established suppletory rule, quod non, it is still necessary to note the insurmountable opposition in the legal literature of two legal theses as regards the exact contents of such a rule.115 Some authors think that in the absence of an intention for this purpose, international law would establish a presumption in favour of ratification.116 On the contrary, other authors consider (p. 229) that in the absence of such intention, international law contains a presumption in favour of signature.117 The same division existed within the ILC and during the Vienna Conference where none of the proposed amendments could finally obtain a sufficient number of votes.118 In this respect, we are resolutely of the opinion that neither of these presumptions belongs to positive international law and both must therefore be rejected. No suppletory rule exists in general international law on this subject. Ultimately, the question of determining whether the signature expresses consent to be bound by a treaty is essentially a question of intention.119

Initialling Definition 36. Initialling (in French, le paraphe) can be defined as a shortened signature, often reduced to the initials of the name of person who writes it.120 Under the terms of Article 12(2)(a) of the Vienna Convention, ‘for the purposes of paragraph 1’, ie for the purposes of expressing consent to be bound by the signature, ‘the initialling of a text constitutes a signature of the treaty when it is established that the negotiating States so agreed ’.121 It is, indeed, acceptable that the initialling of a text is worth final consent of the treaty when it is established that the negotiating States so agreed. The foundation of initialling as a means of expressing consent to be bound is thus in an agreement, formalized or solo consensu,122 concluded between the

negotiating States.

Proof of the agreement 37. How is one to establish that the negotiating States were agreed that the initialling of a text could be regarded as a means of expressing consent to be bound by a treaty? 38. Up until now, legal literature has not examined the question. We are of opinion that, by analogy with signature, the initialling of a text can be regarded as a means of (p. 230) expressing consent to be bound by a treaty when the treaty provides that initialling will have that effect; when it is otherwise established that the negotiating States were agreed that initialling should have that effect; or when the intention of the State to give that effect to the initialling appears from the full powers of its representative or was expressed during the negotiation and was accepted as a means of expressing the final consent to be bound by the other negotiating States.123 Indeed, insofar as an agreement on the legal effects of the initialling must always be established, Article 12(2)(a) of the Vienna Convention reserves for initialling a treatment more severe than is the case for signature. The unilateral expressions of the will to become committed conventionally by affixing initials are not sufficient. It is necessary, moreover, that this will is understood and accepted explicitly or implicitly by the other negotiating States. Consequently it results from the application of Article 12(2)(a) that the production of the full powers of the representative eager to express the consent of his or her State to be bound by the affixing of initials constitutes only one element of the agreement, the other element being made up by the acceptance of this individual will by the other States concerned. In the same way, a unilateral declaration made during the negotiation by a representative eager to conclude the treaty by the affixing of an initialling must be understood and accepted by the other States. However, with regard to the purpose of Article 12, it seems that the silence or the absence of objection from the other duly informed States would have, in casu, to be interpreted as a component of acquiescence on their part. Indeed, as previously emphasized, Article 12 of the Vienna Convention aims to simplify the international procedure of conclusion of treaties, thus allowing the States which wish to do so to conclude immediately. 39. In conclusion, the initialling of a text constitutes the final consent to be bound by a treaty when it is established that the negotiating States so agreed either that the treaty in question envisages it expressly or implicitly (the intrinsic proof), or that it is otherwise established that the negotiating States were expressly or implicitly agreed that it would be so (the extrinsic proof).124

State practice and practice of the UN Secretary-General 40. Let us note immediately that States do not usually have recourse to initialling to express their consent to be bound by a treaty. Diplomatic practice indeed shows that initialling is generally affixed ne varietur for purposes of authenticating the text of a treaty, ie in order to establish the text of the treaty as authentic and definitive.125 In practice, initialling is generally affixed when the negotiator is not entitled to sign the treaty or during the adoption of an agreement in simplified form which, for reasons of domestic law, must be submitted in advance for authorization or approval to the parliament, before being concluded by the affixing of a definitive signature.126 Extremely rare, on the other hand, are the cases where the States affix their initialling with the intention of expressing (p. 231) their final consent to be bound by a treaty.127 In this respect, the restrictive practice followed by the Secretary-General of the United Nations as depositary of multilateral treaties should be pointed out: The initialling of a treaty is one of the means by which its text can be authenticated…Unless the treaty provides otherwise, the procedure for the expression of consent to be bound by a treaty—as distinct from the authentication of its text— involves the full signature of the treaty, and possibly its subsequent ratification, and cannot be replaced by or equated with the mere initialling of the treaty.128 41. Nevertheless, by virtue of the principle of freedom of choice of the means of expressing consent,129 the negotiating States have freedom as regards the choice of methods of expression of their consent to be bound by a treaty.130 Paul Reuter, the Special Rapporteur on the law of treaties concluded between States and international organizations or between two or more international organizations, emphasized on this subject that: …in public international law, there [is] a very great deal of flexibility in the means of concluding treaties because treaties could be concluded by any means on which the parties agreed, irrespective of the nature or description of such means.131 42. Thus, it is possible that the negotiating States agree that the initialling can be affixed with the intention definitively to bind the initialling State or States. State practice on the matter indeed reveals some cases where the affixing of an initialling is worth consent to be bound; either that the treaty in question provides it expressly or implicitly, or that it is otherwise established that the negotiating States were agreed that it would be so.132 In other words, it emerges from diplomatic practice that the intention of the initialling States, as regards the exact scope of their initials, can be established either by examination of the text of the treaty itself (intrinsic proof), or by elements outside the text of the treaty (extrinsic proof).

Intrinsic proof 43. Thus there are cases—albeit exceptionally—where the text of the treaty provides that initialling is worth consent, either explicitly or implicitly. One can reasonably induce from a final clause stipulating that the treaty will enter into force on the date of initialling, (p. 232) that initialling is worth consent. In the same way, one can reasonably induce from provisions

of a treaty not containing any final clause but providing that the implementation of the treaty will have to take place as soon as the agreement is initialled, that the initialling of the States parties is worth consent. For instance, the Memorandum of Understanding of London dated 5 October 1954 concluded between the governments of the United Kingdom, the United States, Italy, and Yugoslavia regarding the Free Territory of Trieste stipulates, among other things, that the suppression of the regime of the military government and the assumption of responsibility of the administration by Italy as well as the withdrawal of Anglo-American troops and the entry of Italian troops will be carried out ‘[a]s soon as this Memorandum of Understanding has been initialled’.133

References

Extrinsic proof 44. Cases exist where it is otherwise established that the negotiating States were agreed that initialling would be worth consent. The intention of States as regards the exact scope of initialling must, consequently, be sought elsewhere than in the text of the treaty. It follows that a meticulous examination of the context and preparatory work are essential, also taking account of all the circumstances (for example, the conversations)134 surrounding the negotiations as well as the full powers produced or the declarations made during the negotiations and accepted explicitly or implicitly by the other States. State practice evidences two particular cases where it is otherwise established that the negotiating States were agreed that initialling would be worth consent: the initials of the head of State, the head of government, or the minister for foreign affairs, on the one hand, and the initials of accessory documents to a treaty, on the other hand. Let us examine these two cases successively.

The initials of head of State, head of government, or minister for foreign affairs 45. First of all, the ILC recognized that such could be the case especially when the initials are affixed by the head of the State, the head of government, or the minister for foreign affairs. Their initials are frequently intended to be the equivalent of a signature in due form expressing the final consent of their State to be bound by a treaty.135 For instance, the GFA (p. 233) of Dayton,136 which put an end to the conflict in Bosnia and Herzegovina, was initialled on 21 November 1995 at Wright-Patterson Air Force Base, close to Dayton, Ohio by the President of the Republic of Bosnia and Herzegovina, Mr Izetbegovic, the President of the Republic of Croatia, Mr Tudjman, and by the President of Serbia, Mr Milosevic acting in the name of the Federal Republic of Yugoslavia as well as the Republika Srpska. The GFA remained silent on the question of the legal scope of their initials. However, the three Presidents were agreed elsewhere that their initials would express their consent to be bound by the GFA. Indeed, an Agreement on Initialling was signed on the same day. This latter agreement, entering into force on the day of its signature, stipulated that the affixing of their initials would express the consent of the three States to be bound by the GFA of Dayton. Consequently, the GFA was concluded in Dayton on 21 November 1995.137 The result was that the intention of the States as regards the exact scope of their initials had, in casu, to be sought elsewhere than in the text of the GFA, namely in a collateral agreement. 46. Moreover, other duly authorized representatives138 will also be able to have recourse to the initials to engage their State definitively.139 For example, the ‘Algiers Agreements’, consigned in particular in two declarations of the Algerian government—the Declaration of the Government of the Popular and Democratic Republic of Algeria and the Declaration of the Government of the Popular and Democratic Republic of Algeria concerning the settlement of claims by the Government of the United States and the Government of the Islamic Republic of Iran—dated 19 January 1981, were initialled by representatives of the United States140 and Iran.141 The text of the declarations not offering clear and sufficient indices regarding the value of the initials, a careful examination of the context and circumstances was essential. It emerged from the full powers of the US representative, lodged with the Algerian government, that he was authorized to approve the two declarations by the affixing of a signature or initials.142

References

(p. 234) Initialled accessory documents 47. Furthermore, cases exist—rather infrequently, it is true—where the negotiating States are agreed explicitly or implicitly that their initials affixed on accessory or subsidiary documents, such as memoranda or minutes of interpretation, initialled statements or agreed interpretations, express the definitive consent of the States to be bound by the aforementioned documents, when these documents constitute the accessory of a treaty which enters into force by signature.143 Arguably, this constitutes an application, as rebuttable presumption, of the principle accessorium sequitur principale by virtue of which the entry into force of accessory instruments occurs, in theory, at the time of the entry into force of the principal instrument.144

Conclusion 48. Ultimately, the question of determining the circumstances under which initials constitute the expression of consent to be bound by a treaty, must be regarded as intrinsically linked to the intention of the negotiating States.145 It is all a question of a case-by-case approach. The will of the initialling State to be bound by the initials of its representative must, however, be 146

definitely established.146 Except when a clearly contrary intention has been expressed, it indeed emerges from State practice that initials do not express in any way consent to be bound by a treaty.147 Contrary to the practice followed by the UN Secretary-General (see supra para. 40),148 Article 12(2)(a) of the Vienna Convention nevertheless allows States to express their intention to be bound through their initials, either by the very terms of the treaty, or in addition, taking the circumstances of the conclusion of the treaty, the full powers produced, or the statements made during the negotiations into account. Moreover, it is also essential that the other States have fully understood and accepted that initials were worth consent to be bound by the treaty. 49. Finally, it is important that the will of the initialling State (or States) to be bound by the initials of its (or their) representative(s) is clearly established, understood, and accepted as such by the other States. If States have retained initials as a means of expressing their consent, it is preferable that all the States parties affix their initials. A juxtaposition of initials affixed by some and signatures by others can only cause confusion and create uncertainty as regards the exact effect of the initials.149 On the other hand, if initials are only a means of authentication, it is preferable that their affixing is not done in the signature block but rather in the lower corner of each page.150

(p. 235) Signature ad referendum Definition 50. Signature ad referendum signifies something less than full signature and can be defined as a signature given on a provisional basis and subject to confirmation.151 Once confirmed, it constitutes a signature in due form. Under the terms of Article 12(2)(b) of the Vienna Convention, ‘for the purposes of paragraph 1’, ‘the signature ad referendum of a treaty by a representative, if confirmed by his State, constitutes a full signature of the treaty’. In other words, a signature ad referendum, if it is confirmed, constitutes a signature in due form for the purposes of the rules relating to the expression, by signature, of the consent to be bound by a treaty. Consequently, a confirmed signature ad referendum can, if necessary, express the final consent of a State to be bound by a treaty. Finally, unlike full signature, signature ad referendum does not oblige the State concerned to refrain from acts which would defeat the object and purpose of a treaty.152

Act of confirmation 51. As regards the confirmation, this is not subjected to particular formal conditions, should not intervene within any time limit, and retroacts, in theory, at the date of the signature ad referendum. 52. First of all, with regard to the form that the act of confirmation must take, it should be noted that the Vienna Convention does not prescribe any particular form. Usually the confirmation is given in the form of a note or a letter.153 Although it cannot be ruled out that an oral confirmation can theoretically produce effects if it is also accepted by the other State(s) concerned154 as, if necessary, by the (p. 236) depositary,155 it is, however, preferable that the confirmation takes place in writing in the form of a note or a letter.156 53. Further, it is to be noticed that the Vienna Convention does not prescribe any time limit within which the confirmation of a signature ad referendum must intervene.157 The signatory ad referendum States have, in this respect, discretionary power. 54. Lastly, as regards the effects of the confirmation, the Vienna Convention remains silent. However the ILC158 and numerous authors159 are of the opinion that the confirmation retroacts, in theory, at the date of the signature ad referendum. Indeed, according to the ILC, ‘[u]nlike “ratification,” the “confirmation” of a signature ad referendum is not a confirmation of the treaty but simply of the signature’.160 Consequently, the confirmation in principle gives the State the capacity of a signatory State as from the date and place at which the signature ad referendum was affixed.161 However, it cannot be ruled out that the negotiating States decide by mutual agreement (explicit or implicit), to depart from the principle of retroactivity of the confirmation. Indeed, if these do not raise any objection so that a later date is indicated at the time of the confirmation of the signature ad referendum, the question will resolve itself.162 On the other hand, if a State raises an objection with the (p. 237) indication of such a later date, the solution would be different. Indeed, in the relation between the State having formulated such an objection and the State which confirms its signature, we are of opinion that the confirmative act will produce retroactive effects until the date of affixing of the signature ad referendum.163

State practice and practice of the UN Secretary-General 55. Usually, it should be noted that the representatives of States do not sign ad referendum with the intention of expressing consent of their State to be bound by a treaty.164 More often than not, the signature ad referendum constitutes a method of authentication of the text of the treaty when the negotiator in question has not received full powers or sufficient instructions to sign purely and simply.165 Furthermore, it is important to mention the practice as regards signature ad referendum followed by the Secretary-General of the United Nations as depositary of multilateral treaties: As concerns signatures ad referendum, the Secretary-General has accepted such signatures even when that procedure was not expressly provided for by the treaty…. In most cases, these signatures ad referendum are not expressly confirmed stricto sensu, as provided for by article 12 (2) (b) of the Vienna Convention on the Law of Treaties, but rather implicitly by the subsequent deposit of an instrument of 166

ratification.166 Indeed, it would appear that the use of the term ‘ad referendum’ is for a number of States a reference to the need to ‘refer’ the treaty for approval to their legislative bodies prior to its ratification.167 As indicated above, the Secretary-General accepts such signatures ad referendum even when no provisions exist in the treaty in that respect and treats them simply as signatures subject to ratification.168 (p. 238) 56. In conclusion, sub-paragraph (b) of paragraph 2 of Article 12 of the Vienna Convention indicates that a signature ad referendum, if confirmed, constitutes a signature in due form for the purposes of the rules relating to the expression, by signature, of the consent to be bound by a treaty.

C. Problems of validity 57. On the one hand, certain authors supported the thesis according to which the expression ‘agreements in simplified form’ covered agreements concluded by bodies constitutionally incompetent to engage the State.169 Some authors have even alleged that treaties in simplified form are not ‘treaties in a strict sense’, but ‘international agreements other than treaties’.170 58. In addition, certain Latin-American States, such as Costa Rica, Guatemala, and Peru, have expressed reservations with regard to Article 12 of the 1969 Vienna Convention.171 Thus, Costa Rica made a reservation with regard to Articles 11 and 12 ‘to the effect that the Costa Rican system of constitutional law does not authorize any form of consent which is not subject to ratification by the Legislative Assembly’.172 As for Guatemala, during the signing of the Vienna Convention it expressed three reservations, of which the second is drawn up as follows: ‘II. Guatemala will not apply articles 11, 12, 25 and 66 in so far as they are contrary to the provisions of the Constitution of the Republic’. Upon ratification of the Convention on the Law of Treaties by Guatemala, With respect to reservation II, which was formulated [upon signature] and which indicated that the Republic of Guatemala would not apply articles 11, 12, 25 and 66 of the [said Convention] insofar as they were contrary to the Constitution, Guatemala states:…(ii) That it also confirms the reservation with respect to the non-application of articles 11 and 12 of the Convention. Guatemala's consent to be bound by a treaty is subject to compliance with the requirements and procedures established in its Political Constitution. For Guatemala, the signature or initialling of a treaty by its representative is always understood to be ad referendum and subject, in either case, to confirmation by its Government. On 15 March 2007, however, the government of Guatemala informed the Secretary-General that it had decided to ‘[w]ithdraw in their entirety the reservations formulated by the Republic of Guatemala on 23 May 1969 and confirmed upon 14 May 1997 to Articles 11 and 12 of the Vienna Convention on the Law of Treaties’. Finally, for the government of Peru: … the application of articles 11, 12 and 25 of the Convention must be understood in accordance with, and subject to, the process of treaty signature, approval, ratification, accession and entry into force stipulated by its constitutional provisions.173 (p. 239) 59. Other States, such as Austria, Belgium, Denmark, Finland, Germany, the Netherlands, and Sweden formulated objections to such reservations for the reason that the rules formulated in Article 12 of the Vienna Convention are firmly anchored in customary international law and reflect universally accepted legal norms. Consequently, these States deem such reservations incompatible with the object and purpose of the Vienna Convention. However, it should be noted that these objections do not prevent the Vienna Convention from entering into force between the States having formulated objections, on the one hand, and the States authors of the reservations, on the other hand. 60. The problem of validity in the international legal order and in the domestic legal order of States of treaties concluded in accordance with Article 12 of the Vienna Convention then arises. It is advisable, consequently, to examine their international and national validity.174

International validity 61. The international validity of treaties concluded by signature, initialling, or signature ad referendum confirmed later, is undisputed. As already mentioned, Article 12 of the Vienna Convention restates a rule of customary international law. Indeed, international treaty law puts several means at the disposal of States by which they can express their consent to be bound by a treaty.175 Article 12 lists three of these means, namely signature, initialling, as well as signature ad referendum confirmed later. 62. As stated previously,176 contemporary diplomatic practice moreover shows that States conclude treaties, today more than ever, by signature.177 The undeniable success of this method of conclusion is explained by its simplicity, its promptness, its flexibility, and its effectiveness. Signed immediately, concluded immediately. 63. In conclusion, subject to the grounds of invalidity listed in the Vienna Convention, the international validity of treaties concluded by signature, initialling, signature ad referendum confirmed later is firmly established in international law. Article 12 codifies, in this respect, customary international law.178

Internal validity

64. International law, in theory, refers to the internal law of each State to determine the organs vested with treaty-making power, ie these organs having competence to conclude treaties. Two particular hypotheses must hold our attention here. 65. The first hypothesis covers the situations where competence to conclude treaties or, at the very least, certain categories of treaties, is, according to the constitutional law of a State,179 shared between the executive power and the legislative power. In this case, the (p. 240) executive will be unable to conclude treaties without prior legislative authorization.180 In other words, two State organs are vested with treaty-making power, the intervention of the legislative organ being a prerequisite to any final consent of the State expressed by the executive in the treaty-concluding procedure. Consequently, for this purpose, in order to be able to conclude a treaty by signature, the executive will have to be duly authorized by the legislative organ. Absent such authorization, the treaty concluded by the executive will be tainted with a defect in constitutionality and could be declared invalid in the internal legal order, although Article 27 of the Vienna Convention is opposed, in theory, to the fact that the State invokes on the international plane such a declaration of invalidity of the treaty with regard to its internal law.181 The international validity of the treaty in question could also be challenged. Indeed, under Article 46 of the Vienna Convention, the fact that the consent of a State to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties can be invoked by that State as invalidating its consent to the double restrictive condition that this violation was manifest and concerns a rule of its internal law of fundamental importance.182 In this regard, the ICJ notes that there is no general legal obligation for States to keep themselves informed of legislative and constitutional developments in other States which are or may become important for the international relations of these States.183

References 66. The second hypothesis covers cases where, although only the executive is vested with competence to conclude treaties, the production of effects of treaties in the internal legal order is subject to an act of consent or approval, thus allowing its reception in the internal order.184 In this case, the default of consent or approval does not affect the international validity of a treaty,185 but ‘only’ its reception in the internal legal order.186 In the (p. 241) absence of such legislative approval, the treaty concluded by the executive will be although valid on the international plane, inapplicable on the internal plane. In this respect, it should be noted that the inapplicability of a treaty concluded and entered into force on the international plane can engage the international responsibility of the State in question.187 Thus, insofar as the treaty must produce its effects in the internal legal order,188 the executive will take care not to conclude a treaty by affixing a definitive signature, in case the reception of the treaty in question is submitted to parliamentary approval. In this case, the executive shall affix a signature subject to ratification, acceptance, or approval189 or shall successfully negotiate a final clause known as ‘notification of the fulfilment of the internal legal requirements’.

References 67. Finally, the fact that Article 12 makes it possible to conclude treaties by signature, initialling, or signature ad referendum confirmed subsequently, does not exempt the signatory or initialling agent or organ from complying with the constitutional provisions or practices governing the internal aspects of the procedure for the conclusion of treaties.190 In any event, although treaty law allows States to conclude treaties in simplified form, the executive willing to conclude a treaty by affixing a definitive signature, initialling, or a signature ad referendum confirmed later, shall, at any time, be bound to respect the requirements and practices of its constitutional law pertaining to the internal aspects of the procedure for the conclusion of treaties.191 Thus, when it results from constitutional law that the head of State, a minister, a head of mission, or a permanent representative cannot, on behalf of the State, express the final consent of that State to be bound by the treaty, he or she will affix either a signature subject to ratification,192 or a deferred definitive signature after completion of internal procedures if the treaty provides for this faculty.193 It remains, however, that Article 12 of the Vienna Convention constitutes a rule of international law which grants States the faculty to conclude by signature, initialling, or signature ad referendum confirmed later. However, Article 12 does not in any way oblige States to conclude treaties in such a way. In other words, Article 12 contains a (p. 242) permissive norm, authorizing a conduct and not a prescriptive norm, requiring a given conduct.194 In this respect, the ICJ recalled that ‘[b]oth customary international law and the Vienna Convention on the Law of Treaties leave it completely up to States which procedure they want to follow’.195 cédric van assche*

References

Footnotes: 1 A. Cassese, International Law (2nd edn, Oxford: Oxford University Press, 2005), p 172; C. Chayet, ‘Les accords en forme simplifiée’, AFDI, 1957, p 7; R. Jongbloet-Hamerlijnck, Het aanwenden van de ratificatie in het volkenrecht. Ontwikkeling en hedendaagse praktijk (Brussels: Elsevier-Sequoia, 1972), pp 224–5; M. Lueke and Ch. Wickremasinghe, ‘Analytical Report’ in Council of Europe and the British Institute of International and Comparative Law (eds), Treaty Making—Expression of Consent by States to be Bound by a Treaty. Conclusion

des traités—Expression par les Etats du consentement à être liés par un traité (The Hague: Kluwer Law International, 2001), p 9; Ch. Rousseau, Droit international public, vol. I (Paris: Sirey, 1970), p 72, para. 47. 2 See J. Salmon (ed.), Dictionnaire de droit international public (Brussels: Bruylant, 2001), ‘Procédure courte’, p 888. 3 ‘Treaties in simplified form’ is the expression used by the ILC during the codification work on the law of treaties. See eg draft Art. 1(d), draft Art. 4(4)(b), and draft Art. 12(2)(d), and their commentary, provisionally adopted by the ILC at its 14th session, Report of the ILC to the General Assembly (A/5209), YILC, 1962, vol. II, pp 161, 165, and 171. See also paras 3 and 8 of the final commentary relating to draft Art. 1 adopted by the ILC at its 18th session, Report of the ILC to the General Assembly (A/6309/Rev.1), YILC, 1966, vol. II, pp 188–9, paras 3 and 8. See also, on the one hand, I. Brownlie, Principles of Public International Law (7th edn, Oxford: Oxford University Press, 2008), p 611 and A. Cassese, supra n 1, p 172 (using the expression ‘treaties in simplified form’) and, on the other hand, R. Jennings and A. Watts, Oppenheim's International Law, 9th edn (Paper), vol. 1, part 4 (Harlow: Longman, 1996), p 1207, para. 585, fn 5 (using the expression ‘agreements in simplified form’). Moreover, Special Rapporteur Sir Humphrey Waldock used in his First Report on the Law of Treaties (A/CN.4/144) the expression ‘ “accords en forme simplifiée”—to use the apt French term’ (YILC, 1962, vol. II, p 33, para. 8). Finally, it should be noted that executive agreements are a feature of US constitutional practice. See, in this respect, L. Wildhaber, ‘Executive Agreements’ in R. Bernhardt (ed.), Encyclopedia of Public International Law, vol. II (Amsterdam: Elsevier, 1999), p 316. See also infra para. 6. 4 Treaties in simplified form are to be divided into two categories, namely treaties concluded by signature (Art. 12 of the Vienna Convention) and treaties concluded by exchange of instruments (Art. 13 of the Vienna Convention). With regard to Art. 13, see the commentary in this work. For treaties in simplified form in general, see among others S. Bastid, Les traités dans la vie internationale. Conclusion et effets (Paris: Economica, 1985), pp 46–50, paras 36–8; D. Carreau, Droit international (6th edn, Paris: Pedone, 1999), p 118, para. 267 and p 127, para. 293; C. Chayet, supra n 1, pp 3–13; J. Combacau and S. Sur, Droit international public (7th edn, Paris: Montchrestien, 2006), pp 120–1; J. Dehaussy, ‘Les traités. Conclusion et conditions de validité formelle’ in B. Goldman, Ph. Kahn, and L. Vogel (eds), Juris-classeur de droit international, vol. 1 (Paris: Juris-classeur, Sources du droit international, Fasc. 11, 1958), pp 26–30, paras 47–57; S. Dreyfus, Droit des relations internationales (4th edn, Paris: Cujas, 1992), p 132; P.-M. Dupuy, Droit international public (9th edn, Paris: Dalloz, 2008), pp 255–6, para. 251; J. Masquelin, Le droit des traités dans l'ordre juridique et dans la pratique diplomatique belge (Brussels: Bruylant, 1980), pp 293–303, paras 234–43 and pp 347–8, para. 287; Nguyen Quoc Dinh, P. Daillier, M. Forteau, and A. Pellet, Droit international public (8th edn, Paris: LGDJ, 2009), pp 157–60, paras 82–4; Ch. Rousseau, supra n 1, vol. I, pp 70–3, paras 46–8; J. Salmon, Droit des gens, vol. 1 (13th edn, Brussels: Presses Universitaires de Bruxelles, 1995–96), pp 64–5 and 76–7; P.-F. Smets, La conclusion d'accords en forme simplifiée. Etude de droit international et de droit belge et comparé (Brussels: Bruylant, 1969), p 282. Contra: J. Basdevant, ‘La conclusion et la rédaction des traités et des instruments diplomatiques autres que les traités’, RCADI, 1926-V, vol. 15, pp 615 and 617; J. Devaux, ‘La conclusion des traités internationaux en forme s’écartant des règles constitutionnelles et dite “conclusion en forme simplifiée” ', Revue international française du droit des gens, 1936, vol. I, pp 299–309; Ph. Gautier, Essai sur la définition des traités entre Etats. La pratique de la Belgique aux confins du droit des traités (Brussels: Bruylant, 1993), pp 68–70, 149–309, 533–5; J. Verhoeven, Droit international public (Brussels: Larcier, 2000), pp 387–9. These authors allege that the expression ‘treaties in simplified form’ designates treaties concluded by State organs that are not constitutionally authorized to bind the State. In their view, as international law is basically non-formalistic, the distinction between solemn form and simplified form has no sense. For various possible definitions of ‘treaties in simplified form’, see L. Wildhaber, ‘Executive Agreements’, supra n 3, pp 313–16. 5 See the Report of the ILC to the General Assembly covering the work of its 11th session (A/4169), YILC, 1959, vol. II, pp 103–4 and Ph. Manin, Droit international public (Paris: Masson, Coll. Droit-Sciences Economiques, 1979), p 85. Cf Reservations to the Convention on Genocide case, Advisory Opinion of 28 May 1951, ICJ Reports 1951, p 28 where the ICJ considered that ‘the legal effect of signing an international convention…necessarily varies in individual cases’. With regard to the authentication of the text of a treaty, see supra the commentary on Art. 10 in this work. 6 See para. 3 of the final commentary relating to draft Art. 2 (Art. 1 of the Convention) adopted by the ILC during its 18th session, Report of the ILC to the General Assembly (A/6309/Rev.1), YILC, 1966, vol. II, p 188 and fn 38. See also J. Dehaussy, ‘Le problème de la classification des traités et le projet de convention établi par la Commission du droit international des Nations Unies’ in Recueil d'études de droit international en hommage à Paul Guggenheim (Geneva: Institut Universitaire de Hautes Études Internationales, 1968), p 321; T. O. Elias, The Modern Law of Treaties (New York: Oceana; Leiden: Sijthoff, 1974), p 13; P.-M. Martin, Droit international public (Paris: Masson, 1995), p 127, para. 249; Nguyen Quoc Dinh, P. Daillier, M. Forteau, and A. Pellet, supra n 4, p 160, para. 84; J. Salmon, Droit des gens, supra n 4, pp 64–5. 7 Failing any final clause relating to the entry into force of a treaty or failing any agreement on this subject between the negotiating States, see Art. 24(2) of the 1969 and 1986 Vienna Conventions on the Law of Treaties. 8 J. Salmon, Droit des gens, supra n 4, p 82. For numerous examples, see P.-F. Smets, supra n 4, pp 167–71. 9 In this regard, it should be noted that the 1969 and 1986 Vienna Conventions on the Law of

Treaties also treat these topics separately. Indeed, Part II, entitled ‘Conclusion and Entry into Force of Treaties’, has three sections: Section 1 entitled ‘Conclusion of Treaties’; Section 2 entitled ‘Reservations’; and Section 3 entitled ‘Entry into Force and Provisional Application of Treaties’. 10 P. Reuter, Introduction au droit des traités (3rd revsd edn by Ph. Cahier (Paris: PUF, 1995), pp 51–2, paras 89–90. Lato sensu, the term ‘conclusion’ designates the whole procedure to be followed in order to be bound by the treaty, consisting of the negotiations, the adoption and authentication of the text of the treaty, and the expression by States of their consent to be bound by the treaty. See, in this respect, J. Salmon (ed.), Dictionnaire, supra n 2, see ‘Conclusion(s)’, under I.C.a) and b), p 225; and E. W. Vierdag, ‘The Time of “Conclusion” of a Multilateral Treaty: Article 30 of the Vienna Convention on the Law of Treaties and Related Provisions’, BYBIL, 1988, p 83. Contra: A. Aust, Modern Treaty Law and Practice (2nd edn, Cambridge: Cambridge University Press, 2007), p 92; and S. Rosenne, ‘Treaties, conclusion and entry into force’ in R. Bernhardt (ed.), Encyclopedia of Public International Law, vol. IV (Amsterdam: Elsevier, 2000), p 933. Cf H. Neuhold, ‘Organs Competent to Conclude Treaties for International Organizations and the Internal Procedure Leading to the Decision to Be Bound by a Treaty. Negotiation and Conclusion of Treaties by International Organizations’, ÖZöRV, 1971, Suppl. 1, p 195, fn 1. The determination of the exact date of conclusion is also relevant in European law. See, in this respect, P. Manzini, ‘The Priority of Pre-Existing Treaties of EC Member States within the Framework of International Law’, EJIL, 2001, pp 785–96. However, the author confuses the operations of conclusion and entry into force of a treaty. 11 For the text of the agreement, see 1910 UNTS 70–5. 12 Ibid, p 73. 13 The text of the General Framework Agreement and its 11 Annexes can be found in ILM, 1996, vol. 35, pp 89–152. 14 See in this respect infra para. 45. 15 Article XI of the GFA reads as follows: ‘This Agreement shall enter into force upon signature’. 16 On this original legal construction, see P. C. Szasz, ‘Bosnia and Herzegovina-CroatiaYugoslavia: General Framework Agreement for Peace in Bosnia and Herzegovina with Annexes. Introductory Note’, ILM, 1996, vol. 35, pp 75–80. See also A. Aust, supra n 10, p 101 and M. N. Shaw, International Law (4th edn, Cambridge: Cambridge University Press, 1997), p 638. 17 See R. Jongbloet-Hamerlijnck, supra n 1, p 225. 18 For the text of the agreement, see 1910 UNTS 96–100. 19 Ibid, p 100. 20 For other examples, see Art. 21, paras 1–2 of the Agreement between the government of the Federal Republic of Germany and the government of the Republic of Poland on inland navigation, done at Warsaw on 8 November 1991 (1910 UNTS 188) and Section 28 of the Agreement between the United Nations and the United States of America regarding the headquarters of the United Nations, done at Lake Success on 26 June 1947 (11 UNTS 34 and 38–40). See, in this respect, H. Neuhold, supra n 10, p 231, fn 134 and pp 251–2. 21 United Nations Conference on the Law of Treaties, 2nd session, Official Records, Summary Records, Vienna, 9 April–22 May 1969, p 26, para. 84. 22 These reservations and objections will be examined infra at paras 58–67. 23 P. Reuter, La Convention de Vienne du 29 mai 1969 sur le droit des traités (Paris: Armand Colin, 1970), pp 7 and 11. 24 As said previously, treaties in simplified form mainly cover two categories of agreements, namely treaties concluded by signature (Art. 12 of the Vienna Convention) and treaties concluded by exchange of instruments (Art. 13 of the Vienna Convention). 25 See among others S. Bastid, supra n 4, pp 47–50, paras 37–8; D. Carreau, supra n 4, pp 123–6, paras 281–8; J. Dehaussy, ‘Les traités. Conclusion et conditions de validité formelle’ in supra n 4, pp 28–9, paras 52–3; S. Dreyfus, supra n 4, p 132; R. Jongbloet-Hamerlijnck, supra n 1, pp 226–8; Nguyen Quoc Dinh, P. Daillier, M. Forteau, and A. Pellet, supra n 4, p 158, para. 83 and pp 148–9, para. 87; Ch. Rousseau, supra n 1, vol. I, pp 96–7, para. 73; M. N. Shaw, supra n 16, p 641; P.-F. Smets, supra n 4, pp 58–63; P. de Visscher, De la conclusion des traités internationaux. Etude de Droit constitutionnel comparé et de Droit international (Brussels: Bruylant, 1943), pp 88–91. As regards the three categories of ‘executive agreements’, see inter alia D. J. Bederman, International Law Frameworks (New York: Foundation Press, 2001), pp 166–9; F. S. Hamzeh, ‘Agreements in Simplified Form—Modern Perspective’, BYBIL, 1968–69, p 184; G. J. Horvath, ‘The Validity of Executive Agreements’, ÖZöRV, 1979, pp 108–18; Lord McNair, The Law of Treaties (Oxford: Clarendon Press, 1961), pp 64–5, fn 5; D. P. O'Connell, International Law, vol. I (2nd edn, London: Stevens & Sons, 1970), pp 206–10; and Ph. R. Trimble, International Law: United States Foreign Relations Law (New York: Foundation Press, 2002), pp 109–40. 26 M. Frankowska, ‘De la prétendue présomption en faveur de la ratification’, RGDIP, 1969, pp 69 and 71; Nguyen Quoc Dinh, P. Daillier, M. Forteau, and A. Pellet, supra n 4, p 158, para. 83. 27 In this respect, it should also be noted that Art. 11 of the Vienna Convention mentions ‘signature’ as the first means, among others, of expressing consent to be bound by a treaty. For the different statistics in this regard, see inter alia S. Bastid, ‘Enquêtes sur les traités.

Résultats d'une enquête sur les conditions de conclusion des traités et sur les clauses relatives au règlement des différends’, AFDI, 1967, pp 544–6 (stating that more than 50 per cent of the treaties under review entered into force by signature. However, this study curiously enough does not mention the category of treaties concluded by exchange of instruments so much so that the percentage of 50 per cent should probably comprise both categories of treaties in simplified form); D. J. Bederman, supra n 25, p 166; H. Blix, ‘The Requirement of Ratification’, BYBIL, 1953, pp 359–60; C. Chayet, supra n 1, pp 4–7 and 10; J. Dehaussy, ‘Les traités. Conclusion et conditions de validité formelle’ in supra n 4, p 27, para. 49 (stating that already under the League of Nations 50 per cent of all treaties registered with the Secretariat were not subject to ratification and stating that this percentage is nowadays higher); P.-M. Dupuy, supra n 4, p 256, para. 252, fn 1; M. Frankowska, supra n 26, pp 77–9; Ph. Gautier, supra n 4, pp 150–2; F. S. Hamzeh, supra n 25, pp 182–3; Nguyen Quoc Dinh, A. Pellet, and P. Daillier, Droit international public (7th edn, Paris: LGDJ, 2002), p 144, para. 83 (more than 60 per cent of all treaties concluded by France and the US would be in simplified form); C. Roche and A. Potot-Nicol, L'essentiel du droit international et du droit des relations internationales (Paris: Gualino éditeur, Coll. les Carrés, 1999), p 16 (treaties in simplified form would represent more than 60 per cent of all treaties concluded); G. Schwarzenberger, International Law, vol. 1, International Law as Applied by International Courts and Tribunals (3rd edn, London: Stevens & Sons, 1957), p 432; J. L. Weinstein, ‘Exchanges of Notes’, BYBIL, 1952, pp 224–5 (more than 85 per cent of all treaties concluded by the UK would be in simplified form); L. Wildhaber, ‘Executive Agreements’ in supra n 3, pp 313 and 317. See also the First Report (A/CN.4/63) of Sir Hersch Lauterpacht dated 24 March 1953, YILC, 1953, vol. II, p 114, fn 39 and his Second Report (A/CN.4/87*) dated 8 July 1954, YILC, 1954, vol. II, pp 127–8, para. 2. See finally para. 3 of the final commentary relating to draft Art. 2(1)(a) adopted by the ILC during its 18th session, Report of the ILC to the General Assembly (A/6309/Rev.1), YILC, 1966, vol. II, p 188. 28 C. Chayet, supra n 1, p 5; F. S. Hamzeh, supra n 25, p 182, fn 4 and p 185; R. JongbloetHamerlijnck, supra n 1, p 233, fn 203. 29 F. S. Hamzeh, supra n 25, p 186. 30 See J. Dehaussy, ‘Les traités. Conclusion et conditions de validité formelle’ in supra n 4, pp 26–7, para. 48; R. Jongbloet-Hamerlijnck, supra n 1, pp 218–24; H. Neuhold, supra n 10, p 228; Nguyen Quoc Dinh, P. Daillier, M. Forteau, and A. Pellet, supra n 4, p 160, para. 84; Ch. Rousseau, supra n 1, vol. I, pp 71–3, para. 47; P.-F. Smets, supra n 4, pp 27 ff. 31 Examples cited by S. Dreyfus, supra n 4, p 132. For more examples, see S. Bastid, supra n 4, pp 46–7, para. 36; C. Chayet, supra n 1, p 5; F. S. Hamzeh, supra n 25, p 182; Nguyen Quoc Dinh, P. Daillier, M. Forteau, and A. Pellet, supra n 4, pp 159–60, para. 84; P.-F. Smets, supra n 4, pp 29–30; and J. L. Weinstein, supra n 27, p 225. 32 J. Dehaussy, ‘Les traités. Conclusion et conditions de validité formelle’ in supra n 4, p 26, para. 48 and Ch. Rousseau, supra n 1, vol. I, p 71, para. 47. 33 See introductory bibliography and references quoted supra n 4. 34 It should be noted that the parties, namely Qatar and Bahrain, are not parties to the 1969 Vienna Convention on the Law of Treaties. 35 Maritime Delimitation and Territorial Questions between Qatar and Bahrain case, Jurisdiction and Admissibility, Judgment of 1 July 1994, ICJ Reports 1994, pp 120–2, paras 21– 30 and p 126, para. 41. On this subject, see also A. Aust, supra n 10, pp 51–2; A. Cassese, supra n 1, pp 172–3; and S. Rosenne, ‘The Qatar/Bahrain Case. What is a Treaty? A Framework Agreement and the Seising of the Court’, LJIL, 1995, pp 166–71. 36 Land and Maritime Boundary between Cameroon and Nigeria case, Judgment of 10 October 2002, ICJ Reports 2002, pp 429–30, para. 264. 37 The question of methods of proof will be examined infra at paras 14–33. 38 Contra: Alexandru Bolintineanu alleging that, with regard to Art. 12(1)(b), ‘these provisions are partly new insofar they require an agreement’ (A. Bolintineanu, ‘Expression of Consent to Be Bound by a Treaty in the Light of the 1969 Vienna Convention’, AJIL, 1974, p 684). See also M. E. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Leiden: Martinus Nijhoff, 2009), p 194. 39 In this sense, see A. Bolintineanu, supra n 38, p 685: ‘The rule that states can determine the procedure they may resort to in order to be bound by a treaty by expressing their intention during the negotiations seems to be a rule de lege ferenda. To our knowledge, there is no instance in state practice to substantiate this rule’. Contra: the intervention at the 9th plenary meeting of the Vienna Conference of the Expert Consultant Sir Humphrey Waldock stating that ‘[s]uch cases were extremely common’ (in United Nations Conference on the Law of Treaties, 2nd session, Official Records, Summary Records, Vienna, 9 April–22 May 1969, p 26, para. 81). 40 See eg the General Framework Agreement for Peace in Bosnia and Herzegovina initialled on 21 November 1995 at Wright-Patterson Air Force Base, near Dayton. The problems of interpretation regarding initialling as revealed by diplomatic practice will be examined infra at paras 40–7. 41 P. Reuter, La Convention de Vienne du 29 mai 1969 sur le droit des traités, supra n 23, p 7. Contra: M. Frankowska alleging that initialling was not until recent times considered a method for concluding treaties (supra n 26, p 76); M. E. Villiger, supra n 38, p 192. See also the intervention of Mr Bindschedler (Switzerland) asserting during the 2nd session of the Vienna Conference that ‘[i]nitialling could never express consent to be bound and could never have the same legal force as signature’ (United Nations Conference on the Law of Treaties, 2nd session, Official Records, Summary Records, Vienna, 9 April–22 May 1969, p 25, para. 77). However, this assertion deserves little credit as the same representative stated during the first

session that it was admitted that ‘[c]onsent was given by signature or initialling’ (1st session, Official Records, Summary Records, Vienna, 26 March–24 May 1968, p 94, para. 3). 42 So eg the 1947 GATT protocols signed ad referendum by the representatives of Austria and the Federal Republic of Germany, whose signatures were confirmed subsequently. See in this respect, the ‘Practice of the United Nations Secretariat in relation to certain questions raised in connexion with the articles on the law of treaties. Note of the Secretariat’ (A/CN.4/121) in YILC, 1959, vol. II, p 82, point A.3. See also the Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties (New York: Treaty Section of the Office of Legal Affairs, United Nations, 1999), p 33, para. 112. The problems of interpretation regarding signature ad referendum as revealed by diplomatic practice will be examined infra at para. 55. 43 P. Reuter, La Convention de Vienne du 29 mai 1969 sur le droit des traités, supra n 23, p 7. Contra: M. E. Villiger, supra n 38, p 192. 44 M. E. Villiger, supra n 38, p 187. Cf J. Basdevant (ed.), Dictionnaire de la terminologie du droit international (Paris: Sirey, 1960), ‘Signature’, pp 565–8; J. Salmon (ed.), Dictionnaire, supra n 2, ‘Signature’, p 1033. 45 On the distinction between simple and definitive signature, see Final Clauses of Multilateral Treaties. Handbook (New York: United Nations, 2003), pp 32–5 and A. Aust, supra n 10, p 96. 46 For the purposes of Art. 2(1)(e) of the Vienna Convention, a ‘negotiating State’ means a State which took part in the drawing-up and adoption of the text of the treaty. 47 See, in this respect, A. Bolintineanu, supra n 38, p 681. For the treaties concluded in the Council of Europe, see J. Polakiewicz, Treaty-making in the Council of Europe (Strasbourg: Council of Europe, 1999), p 30. 48 H. Blix, ‘The Requirement of Ratification’, supra n 27, p 352; M. Lueke and Ch. Wickremasinghe, ‘Analytical Report’ in supra n 1, p 9. 49 For the text of Art. 4, see 1836 UNTS 44. 50 See Art. 4(3)(a) of the Agreement. For numerous other examples, see R. JongbloetHamerlijnck, supra n 1, pp 195–233. On the ‘triple option clause’ (definitive signature, signature subject to ratification, accession) and its variants, see also R. Jongbloet-Hamerlijnck, supra n 1, pp 191–2. 51 A. Aust, supra n 10, p 96 and the Harvard Research Draft Code on the Law of Treaties, AJIL, Suppl. 1935, vol. 29, p 767. See also Sir Ernest Satow, Satow's Guide to Diplomatic Practice (5th edn, London: Longman, 1979), p 270, para. 32.1. See also draft Art. 14, adopted by the ILC during its 11th session: In addition to authenticating the text where this has not been done in some other way…, signature operates as a provisional consent to the text, as constituting an international agreement, in those cases where it is subject to ratification; and as a final consent in those cases where the treaty comes into force on signature…(Report of the ILC to the General Assembly (A/4169), YILC, 1959, vol. II, p 105) 52 Cf para. 3 of the final commentary relating to draft Art. 10 (Art. 12 of the Convention) adopted by the ILC during its 18th session, Report of the ILC to the General Assembly (A/6309/Rev.1), YILC, 1966, vol. II, p 196. 53 For the text of the agreement, see 7 UNTS 175 ff. 54 Ibid, p 188. 55 For another example, see the final clause of the Special Agreement concluded between the French and Spanish governments in the Lake Lanoux case (RIAA, vol. XII, p 286). 56 H. Blix, ‘The Requirement of Ratification’, supra n 27, p 359; A. Bolintineanu, supra n 38, pp 673–4, 677, and 684; P. Reuter, La Convention de Vienne du 29 mai 1969 sur le droit des traités, supra n 23, pp 15–16; I. Sinclair, The Vienna Convention on the Law of Treaties (2nd edn, Manchester: Manchester University Press, 1984), p 41. 57 Intervention of Mr Reuter during the 27th session, 1353rd meeting of the ILC (YILC, 1975, vol. I, p 269). 58 Paragraph 3 of the final commentary relating to draft Art. 10 (Art. 12 of the Convention) adopted by the ILC during its 18th session, Report of the ILC to the General Assembly (A/6309/Rev.1), YILC, 1966, vol. II, p 196. 59 In this sense: A. Bolintineanu, supra n 38, p 683; M. Frankowska, supra n 26, p 86; S. Rosenne, ‘ “Consent” and Related Words in the Codified Law of Treaties’ in Mélanges offerts à Charles Rousseau. La communauté internationale (Paris: Pedone, 1974), p 245. 60 See in this respect A. Bolintineanu, supra n 38, pp 682–4 and the references quoted therein. 61 As signature is an inscription being part and parcel of the treaty, rules on treaty interpretation also apply to signature in order to determine the exact content of the will of the States. 62 For recourse to the context as a general rule of treaty interpretation, see Art. 31(1)–(2) of the Vienna Convention. 63 For recourse to any subsequent agreement as a general rule of treaty interpretation, see Art. 31(3)(a) of the Vienna Convention. 64 For recourse to any subsequent practice as a general rule of treaty interpretation, see Art.

31(3)(b) of the Vienna Convention. On the distinction between applicative, interpretative, modifying, and abrogative subsequent practice, see G. Distefano, ‘La pratique subséquente des Etats parties à un traité’, AFDI, 1994, pp 41–71. 65 For recourse to the preparatory work of the treaty as a supplementary rule of treaty interpretation, see Art. 32 of the Vienna Convention. 66 For recourse to the circumstances of the conclusion as a supplementary rule of treaty interpretation, see Art. 32 of the Vienna Convention. See also A. Bolintineanu, supra n 38, p 682. In this respect, draft Art. 11(1)(b) (Art. 12(1)(b) of the Convention) adopted by the ILC in 1965 stipulated that ‘[t]he consent of a State to be bound by a treaty is expressed by the signature of its representative when: […] b) It appears from the circumstances of the conclusion of the treaty that the States concerned were agreed that signature should have that effect’ (YILC, 1965, vol. II, p 161). It should be noted that the expression ‘It is otherwise established’ mentioned in Art. 12(1)(b) of the Vienna Convention, as proposed by the Drafting Committee (see Revised Draft Articles of 13 and 14 July 1966 (A/CN.4/L.117 and Add.1), YILC, 1966, vol. II, p 115) has, as we will demonstrate hereafter, a larger scope. Contra: A. Bolintineanu, supra n 38, p 683. 67 See Harvard Research Draft Code on the Law of Treaties, supra n 51, pp 768–9 and the references quoted therein. Cf Art. 7(1)(b) of the Vienna Convention and its commentary supra in this work. 68 See G. Fitzmaurice, ‘Do Treaties Need Ratification?’, BYBIL, 1934, p 119 and the example quoted therein as well as pp 126–7; Harvard Research Draft Code on the Law of Treaties, supra n 51, pp 767–8 and the references quoted therein. Cf Art. 7(2)(a) of the Vienna Convention and its commentary supra in this work. 69 See Harvard Research Draft Code on the Law of Treaties, supra n 51, pp 768–9 and the references quoted therein. Cf Art. 7(1)(b) of the Vienna Convention and its commentary supra in this work. 70 With regard to ‘witness’ States, see A. Aust, supra n 10, pp 101–2. For an example of appending signatures by representatives of ‘witness’ States, see the conclusion of the DaytonParis General Framework Agreement. 71 In this sense: H. Blix, ‘The Requirement of Ratification’, supra n 27, p 360, fn 4. 72 See S. Rosenne, ‘ “Consent” and Related Words in the Codified Law of Treaties’ in supra n 59, p 247 and G. Schwarzenberger, supra n 27, p 431. 73 Cf the First Report (A/CN.4/63) of Sir Hersch Lauterpacht dated 24 March 1953, YILC, 1953, vol. II, p 112 and p 115, para. 5(d); the Second Report (A/CN.4/87*) of Sir Hersch Lauterpacht dated 8 July 1954, YILC, 1954, vol. II, pp 127–9 and the observations of the government of the United States and the Special Rapporteur, Sir Waldock, in Fourth Report on the Law of Treaties of the Special Rapporteur, Sir Humphrey Waldock (A/CN.4/177 and Add.1 and 2), YILC, 1965, vol. II, pp 37 and 39. 74 Cf the observations of Special Rapporteur, Sir Waldock: The Special Rapporteur recognizes that there may be cases where the joint and regular practice of two States in concluding bilateral treaties, or the well-established practice of one State known to the other, may provide evidence of their common understanding regarding the requirement of ratification in the case of certain types of treaties (Fourth Report, Sir Humphrey Waldock (A/CN.4/177 and Add.1 and 2), YILC, 1965, vol. II, p 39). Cf also Harvard Research Draft Code on the Law of Treaties, supra n 51, p 769. On the question of recourse to the relevant practice of parties vis-à-vis third States, see in particular the case concerning the Air Service Agreement of 27 March 1946 between the United States of America and France, decision of 9 December 1978 (RIAA, vol. XVIII, p 441, paras 70–1) and the case concerning the Interpretation of the Air Transport Services Agreement between the United States of America and Italy of 6 February 1948, Advisory Opinion of 17 July 1965 (RIAA, vol. XVI, p 101, para. 7). On the limited application of the analogy in search of the intention of the parties, see V. D. Degan, L'interprétation des accords en droit international (The Hague: Martinus Nijhoff, 1963), pp 100–2, paras 65–6, p 116, para. 72 and pp 132–4, para. 78 (and the references to arbitral case law and case law of the PCIJ and ICJ). 75 See esp. Art. 5(2) and Art. 12(5) of the Regulations on the registration and the publication of treaties and international agreements. For a consolidated version of the aforesaid Regulations, see 859/860 UNTS XII–XX. See also the note verbale LA 41 TR/230 of the Legal Counsel of the United Nations dated 3 February 2010. Cf M. Frankowska, supra n 26, p 79 as well as the Second Report of 8 July 1954 (A/CN.4/87*) by Sir Hersch Lauterpacht, YILC, 1954, vol. II, p 129. As regards the requirement of the temporal character of the registration or filing and recording of treaties as well as their publication, see infra in this work the commentary on Art. 80 of the 1969 Convention. 76 J. L'Huillier, Éléments de droit international public (Paris: Ed. Rousseau, 1950), p 188, para. 319; L. Wildhaber, ‘Executive Agreements’ in supra n 4, p 314. In the same sense: Harvard Research Draft Code on the Law of Treaties, supra n 51, pp 756, 763, and 765. See also for the definition of the expression agreement in simplified form, the text of draft Art. 12(2)(d) as well as para. 7 of the commentary, provisionally adopted by the ILC during its 14th session, Report of the ILC to the General Assembly (A/5209), YILC, 1962, vol. II, pp 171–3. See also the observation of Special Rapporteur Sir Waldock, in his Fourth Report on the Law of Treaties (A/CN.4/177 and Add.1 and 2), YILC, 1965, vol. II, p 38, para. 4. 77 For agreements in simplified form concluded by exchange of instruments such as notes or

letters, see infra the commentary on Art. 13 of the Vienna Convention. 78 Cf the First Report, dated 24 March 1953 (A/CN.4/63), by Sir Hersch Lauterpacht, YILC, 1953, vol. II, p 102, as well as Sir R. Jennings and Sir A. Watts, supra n 3, p 1208, para. 586 and pp 1229–30, para. 603. 79 See final commentary relating to draft Arts 2 (Art. 2 of the Convention) and 11 (Art. 14 of the Convention) adopted by the ILC at its 18th session, Report of the ILC to the General Assembly (A/6309/Rev.1), YILC, 1966, vol. II, p 188, para. 3 and p 197, para. 3. 80 See P.-F. Smets, supra n 4, p 11, fn 4 and J. L. Weinstein, supra n 27, p 226. In this respect, the terminology for naming conventional instruments rightly was described as ‘confusing, often inconsistent, unscientific and in a perpetual state of flux’ (Harvard Research Draft Code on the Law of Treaties, supra n 51, p 712). See also R. Jennings and A. Watts, supra n 3, p 1208, para. 586; Ernest Satow, supra n 51, p 238, para. 29.5. 81 In this sense: D. Anzilotti, Cours de droit international. Premier volume: Introduction— Théorie générale, French translation by Gilbert Gidel (Paris: Sirey, 1929), p 374. 82 Harvard Research Draft Code on the Law of Treaties, supra n 51, pp 756, 763, and 765; R. Jennings and A. Watts, supra n 3, p 1230, para. 603; S. Rosenne, ‘Consent and Related Words in the Codified Law Treaties’ in supra n 59, p 247; the observations of Special Rapporteur Sir Humphrey Waldock in his Fourth Report on the Law of Treaties (A/CN.4/177 and Add.1 and 2), YILC, 1965, vol. II, p 38, para. 4. 83 Thus, Bolivia, Chile, Colombia, the Dominican Republic, Guatemala, Honduras, Mexico, Peru, and Venezuela presented a joint amendment (A/CONF.39/C.1/L.107), drawn up as follows: ‘The consent of a State to be bound by a treaty is expressed by the signature of its representative when:…; b) In conformity with the internal law of that State the treaty is an administrative or an executive agreement’. It should be noted that the aforementioned amendment was rejected by 60 votes to 10, with 16 abstentions (see United Nations Conference on the Law of Treaties, Reports of the Committee of the Whole, Official Records, Documents of the Conference, p 126, paras 119 and 122). See also the interventions of Mr Kebreth (Ethiopia) and Mr Vargas (Chile) at the 17th meeting of the Committee of the Whole (in United Nations Conference on the Law of Treaties, 1st Session, Official Documents, Summary Records, pp 89–90, para. 16 and pp 91–2, para. 39). Cf F. S. Hamzeh, supra n 25, p 181. 84 See United Nations Conference on the Law of Treaties, 1st Session, Official Documents, Summary Records, the interventions of the Ethiopian delegation (pp 89–90, para. 16), the Chilean delegation (pp 91–2, para. 39) as well as the amendment mentioned supra (A/CONF.39/C.1/L.107) proposed by Bolivia, Chile, Colombia, Guatemala, Honduras, Mexico, Peru, the Dominican Republic, and Venezuela. 85 See A. Bolintineanu, supra n 38, pp 677–8; J. Dehaussy, ‘Les traités. Conclusion et conditions de validité formelle’ in supra n 4, pp 26–7, para. 48; P.-F. Smets, supra n 4, p 31. Cf L. Wildhaber, ‘Executive Agreements’ in supra n 3, p 314. 86 Cf the observation of Special Rapporteur Sir Humphrey Waldock in his Fourth Report on the Law of Treaties (A/CN.4/177 and Add.1 and 2), YILC, 1965, vol. II, p 38, para. 3. As regards research by the interpreter of the parties' common will, see inter alia the arbitral award rendered on 9 December 1966 by HM Queen Elizabeth II with the Report, in appendix, of the Court of Arbitration chaired by Lord McNair in the Argentina-Chile Frontier Case (in ILR, 1966, vol. 38, p 89); the decision regarding Delimitation of the Border between Eritrea and Ethiopia, dated 13 April 2002, adopted unanimously by the Eritrea-Ethiopia Boundary Commission, chaired by Sir Elihu Lauterpacht (previously unpublished, p 21, para. 3.4); as well as the arbitral award of 12 March 2004 in the case concerning the Auditing of accounts between the Kingdom of the Netherlands and the French Republic pursuant to the additional Protocol of 25 September 1991 to the Convention on the Protection of the Rhine against pollution by Chlorides of 3 December 1976 (previously unpublished, p 26, para. 62) where the Arbitral Tribunal concludes that ‘[a]ll the elements of the general rule of interpretation [codified in Art. 31 of the Vienna Convention] provide the basis for establishing the common will and intention of the parties by objective and rational means’. 87 M. Lachs, ‘La preuve et la Cour internationale de Justice’ in Ch. Perelman and P. Foriers (eds), La preuve en droit (Brussels: Bruylant, 1981), p 111. See also G. Niyungeko, La preuve devant les juridictions internationales (Brussels: Bruylant, Editions de l'Université de Bruxelles, Collection de droit international, 2005), p 484. 88 For the examination of the question of the absence of a suppletory rule, see infra paras 34– 5. 89 See para. 3 of the final commentary relating to draft Art. 10 (Art. 12 of the Convention) adopted by the ILC during its 18th session, Report of the ILC to the General Assembly (A/6309/Rev.1), YILC, 1966, vol. II, p 196; S. Bastid, supra n 4, p 47, para. 36; H. Blix, ‘The Requirement of Ratification’, supra n 27, pp 357–8; A. Bolintineanu, supra n 38, pp 680–1; C. Chayet, supra n 1, p 9; F. S. Hamzeh, supra n 25, p 187; P. Reuter, Introduction au droit des traités, supra n 10, p 60, para. 107; D. Ruzié, Droit international public (16th edn, Paris: Dalloz, Coll. Mémentos, 2002), p 39 (noting that ‘[It]’ is the case of the conventions passed by the United States or with international organizations'). See also the Fourth Report on the Law of Treaties of Special Rapporteur Sir Humphrey Waldock (A/CN.4/177 and Add.1 and 2), YILC, 1965, vol. II, pp 39–40, para. 8. Cf A. Aust, supra n 10, p 97; J. Dehaussy, ‘Le problème de la classification des traités et le projet de convention établi par la Commission du droit international des Nations Unies’ in supra n 6, p 322. For examples of treaties concluded between States and international organizations or between international organizations and envisaging the definitive signature for one party and the ratification or approval for the other,

see H. Neuhold, supra n 10, pp 241–2. 90 R. Jongbloet-Hamerlijnck, supra n 1, pp 225–6. 91 For multilateral conventions, see, as an example, Art. 4 of the Agreement relating to the implementation of Part XI of the United Nations Convention on Law of the Sea, adopted on 29 July 1994, which provides for the States willing to express their consent to be bound by the aforementioned Agreement several possibilities for this purpose. Consent to be bound can, indeed, be expressed by: (a) signature; (b) ratification or formal confirmation; (c) signature subject to the simplified procedure set out in Art. 5 of the Agreement; or (d) accession (see 1836 UNTS 44–5). For many other examples of multilateral treaties, see R. JongbloetHamerlijnck, supra n 1, pp 191–2 and 195–233. For examples of bilateral treaties, see Ch. Rousseau, supra n 1, vol. I, pp 72–3, para. 47. 92 A. Bolintineanu, supra n 38, p 684. 93 In this last case, it should be noted that methods of proof of individual will constitute methods of proof supplementary to the methods of proof of collective will. 94 Pro: A. Aust, supra n 10, p 97 and A. Bolintineanu, supra n 38, p 684. Contra: Special Rapporteur Sir Humphrey Waldock in his Fourth Report on the Law of Treaties (A/CN.4/177 and Add.1 and 2), YILC, 1965, vol. II, p 39, para. 8; H. Blix, ‘The Requirement of Ratification’, supra n 27, p 352; M. Frankowska, supra n 26, p 62; and E. W. Vierdag, ‘The International Court of Justice and the law of treaties’ in V. Lowe and M. Fitzmaurice (eds), Fifty years of the International Court of Justice. Essays in honour of Sir Robert Jennings (Cambridge: Cambridge University Press, 1996), pp 162–3. 95 J. Polakiewicz, supra n 47, p 30; E. W. Vierdag, ‘The International Court of Justice and the law of treaties’ in supra n 94, p 151. 96 North Sea Continental Shelf case, Judgment of 20 February 1969, ICJ Reports 1969, pp 25–6, para. 28. See also Military and Paramilitary Activities in and against Nicaragua case, Jurisdiction and Admissibility, Judgment of 26 November 1984, ICJ Reports 1984, pp 403–4, paras 25–7; E. W. Vierdag, ‘The International Court of Justice and the law of treaties’ in supra n 94, pp 154–5 and 157–8. 97 North Sea Continental Shelf case, Judgment of 20 February 1969, ICJ Reports 1969, p 26, para. 30. See in this respect J.-P. Jacqué, ‘A propos de la promesse unilatérale’ in Mélanges offerts à Paul Reuter. Le droit international: unité et diversité (Paris: Pedone, 1981), pp 336–7 and esp. fn 18. 98 For an example, see the full powers delivered jointly by the President and the Secretary of State of the United States to the Vice-Secretary of State, authorizing him to approve the Agreements of Algiers dated 19 January 1981 by the affixing of a signature or initials. For the text of the full powers, see ILM, 1981, vol. 20, p 223. 99 For an example of a clause subject to various interpretations, see A. Bolintineanu, supra n 38, p 685, fn 65: An example of a clause from which it would be difficult to infer the intention of a State regarding the means of expressing consent to be bound by a treaty is that used in British full powers to the effect that what has been agreed by the plenipotentiary will be submitted to ratification if necessary. 100 In this respect, M. Frankowska (supra n 26, p 87) pointed out that Art. 12(1)(c) relating to proof by full powers could easily be deleted, Art. 7(1)(a) of the Convention regulating this problem in a sufficiently clear way. See also supra in this work the commentary on Art. 7 of the Convention. 101 A. Bolintineanu, supra n 38, p 686. In this respect, it should be stressed that the Italian amendment (A/CONF.39/C.1/L.81) requiring that the intention of the State in question to give that effect to the signature was to be formally manifested during the negotiations, was not retained by the Drafting Committee. See United Nations Conference on the Law of Treaties, Reports of the Committee of the Whole, Official Records, Documents of the Conference, p 126, para. 119 and paras 124–5. The Drafting Committee probably considered this requirement excessively formal. 102 A. Bolintineanu, supra n 38, p 685. 103 M. Frankowska, supra n 26, p 87; R. Jennings and A. Watts, supra n 3, p 1229, para. 603. 104 R. Jennings and A. Watts, supra n 3, p 1229, para. 603 and fn 4. 105 Mr Kramer, the representative of the Netherlands to the Vienna Conference, stressed that ‘[a] Government would so rarely withdraw in that way the order given in the full powers that there seemed to be no point in providing for it under the general law of treaties’ (in United Nations Conference on the Law of Treaties, 1st session, Official Records, Summary Fecords, Vienna, 26 March–24 May 1968, p 93, para. 50). 106 See the remark of Mr Yasseen, Chairman of the Drafting Committee at the Vienna Conference (in United Nations Conference on the Law of Treaties, 2nd session, Official Records, Summary Records, Vienna, 9 April–22 May 1969, p 25, para. 78). 107 See in this respect Res. 53/101 adopted without a vote by the General Assembly on 8 December 1998 and entitled ‘Principles and guidelines for international negotiations’. Cf Land and Maritime Boundary between Cameroon and Nigeria case, Judgment of 10 October 2002, ICJ Reports 2002, p 424, para. 244. 108 For the obligatory foundation of at least certain types of unilateral acts, see Jean Salmon, ‘Les accords non formalisés ou solo consensu’, AFDI, 1999, pp 13–15 and 26. Cf also the intervention of Mr Bartoš at the 40th session, 637th meeting of the ILC (YILC, 1962, vol. I, p

48, paras 43–8). 109 A. Aust, supra n 10, p 96; A. Bolintineanu, supra n 38, p 676; R. D. Kearney and R. E. Dalton, ‘The Treaty on Treaties’, AJIL, 1970, p 508; S. E. Nahlik, ‘La Conférence de Vienne sur le droit des traités. Une vue d'ensemble’, AFDI, 1969, p 38, para. 12; H. Neuhold, supra n 10, p 240; I. Sinclair, supra n 56, p 41; H. H. M. Sondaal, De Nederlandse Verdragspraktijk (The Hague: TMC Asser Instituut, 1986), p 46; M. E. Villiger, supra n 38, p 187. 110 In this sense: A. Bolintineanu, supra n 38, p 676; J. Combacau and S. Sur, supra n 4, pp 119–20; Ph. Manin, supra n 5, p 87; and J. Salmon, Droit des gens, supra n 4, p 79. 111 H. Blix, ‘The Requirement of Ratification’, supra n 27, p 359; A. Bolintineanu, supra n 38, pp 673–4, 677, and 684; H. H. M. Sondaal, supra n 109, p 46. In this respect, Ian Sinclair speaks about the ‘principle of the procedural autonomy of the negotiating States’ (I. Sinclair, supra n 56, p 41). 112 H. Blix, ‘The Requirement of Ratification’, supra n 27, p 366; A. Bolintineanu, supra n 38, p 677, fn 30; R. Jennings and A. Watts, supra n 3, p 1229, para. 603; R. D. Kearney and R. E. Dalton, supra n 109, p 508. See also para. 4 of the final commentary relating to draft Art. 11 (Art. 14 of the Convention) adopted by the ILC during its 18th session, Report of the ILC to the General Assembly (A/6309/Rev.1), YILC, 1966, vol. II, p 197. See also the interventions of Mr Thierfelder (Federal Republic of Germany) and Mr Blix (Sweden) to the 16th meeting of the Committee of the Whole (in United Nations Conference on the Law of Treaties, 1st session, Official Records, Summary Records, Vienna, 26 March–24 May 1968, pp 87–8, paras 30–1). Contra: the intervention of the Polish representative, Mr Nahlik, at the 17th meeting of the Committee of the Whole, who referred to the researches of Mrs Frankowska, according to whom ‘of 1,000 treaties selected from among those registered and published by the United Nations, about 10 per cent contained no express provision on the mode of conclusion’ (in United Nations Conference on the Law of Treaties, 1st session, Official Records, Summary Records, Vienna, 26 March–24 May 1968, p 86, para. 14). See in this respect S. E. Nahlik, supra n 109, p 37, para. 12. 113 Anthony Aust thus reports the case of the ‘Agreed Minutes between the State of Kuwait and the Republic of Iraq regarding the restoration of friendly relations, recognition and related matters’, signed at Baghdad on 4 October 1963, and formally recognizing the boundaries between Iraq and Kuwait and the attribution of islands (text in 485 UNTS 326–8). Iraq claimed that the aforementioned treaty was subject to ratification, while Kuwait upheld that the signatures affixed by the parties were definitive. It should be noted that the UN Security Council, in its Res. 687 (1991) of 3 April 1991, adopted the position defended by Kuwait. See in this respect, A. Aust, supra n 10, p 96. 114 A. Bolintineanu, supra n 38, p 677; I. Sinclair, supra n 56, p 41. On the subsequent practice as evidence of the later will of the parties, see J.-P. Cot, ‘La conduite subséquente des parties à un traité’, RGDIP, 1966, pp 647–53 and G. Distefano, supra n 64, pp 52–4. Cf R. Jennings and A. Watts, supra n 3, p 1229, para. 603. 115 For a complete analysis of the two theses, see M. Frankowska, supra n 26, pp 62–88. 116 M. Frankowska thus reviews W. E. Hall, G. Jellinek, A. W. Heffter, Ch. Calvo, A. Rivier, E. Nijs, F. Martens, P. Fauchille, F. Dehousse, L. Oppenheim, Ch. Rousseau, A. D. McNair, F. Berber, J. Makowski, L. Ehrlich, and K. Libera. For the references, see M. Frankowska, supra n 26, p 70. See also R. Jennings and A. Watts, supra n 3, p 1229, para. 603. See also Art. 7(d) and its commentary of the Harvard Research Draft Code on the Law of Treaties, supra n 51, pp 658 and 763. See also J. L'Huillier, supra n 76, p 187, para. 318. See finally Art. 5 of the PanAmerican Convention of Havana on Treaties of 20 February 1928. For the text of the Convention and the status of ratifications, see H. Blix, ‘The Requirement of Ratification’, supra n 27, p 368; M. Frankowska, supra n 26, p 63 as well as the Second Report (A/CN.4/87*) by Sir Hersch Lauterpacht dated 8 July 1954, YILC, 1954, vol. II, p 128, para. 5, which regards Art. 5 of the aforesaid Convention as ‘evidence of regional practice’. Lastly, as regards international case law, the PCIJ referred to ‘a convention made effective in accordance with the ordinary rules of international law amongst which is the rule that conventions, save in certain exceptional cases, are binding only by virtue of their ratification’ (Case relating to the Territorial Jurisdiction of the International Commission of the River Oder, judgment of 10 September 1929, PCIJ, Series A, no. 23, p 20). See on this subject, H. Blix, ‘The Requirement of Ratification’, supra n 27, pp 370–1; Nguyen Quoc Dinh, P. Daillier, M. Forteau, and A. Pellet, supra n 4, p 157, para. 81; G. Schwarzenberger, supra n 27, pp 435–7; P.-F. Smets, supra n 4, p 34. 117 M. Frankowska thus reviews G. F. Martens, J.L. Klüber, P. Fiore, R. Phillimore, G. Fitzmaurice, H. Kelsen, H. Blix, G. Dahm, G. Schwarzenberger, V. M. Chouchalov, S. E. Nahlik, and L. Gelberg. For the references, see M. Frankowska, supra n 26, p 73. It should be noted that M. Frankowska also adopts the presumption in favour of signature. See also A. Aust, supra n 10, p 97 and S. E. Nahlik, supra n 109, pp 37–8, para. 12. See finally J. Masquelin, supra n 4, p 283, para. 221 who alleges that ‘la convention de Vienne du 29 mai 1969 sur le droit des traités rejette la doctrine de la réserve tacite de ratification (articles 12 à 14 combinés) et la pratique est dans le même sens’. 118 For an analysis of the situation, see I. Brownlie, supra n 3, p 611; M. Frankowska, supra n 26, pp 81–7; S. E. Nahlik, supra n 109, pp 36–8, para. 12; S. Rosenne, The Law of Treaties. A Guide to the Legislative History of the Vienna Convention (Leiden: A. W. Sijthoff; New York: Oceana, 1970), pp 148–9 and I. Sinclair, supra n 56, pp 39–41. For the withdrawal of the amendment proposing a suppletory rule in favour of signature as well as the roll-call vote on the amendment proposing a suppletory rule in favour of ratification, see the 18th meeting of the Committee of the Whole in United Nations Conference on the Law of Treaties, 1st session, Official Records, Summary Records, Vienna, 26 March–24 May 1968, pp 94–5, paras 7–8 and

14. 119 I. Brownlie, supra n 3, p 611; Nguyen Quoc Dinh, P. Daillier, M. Forteau, and A. Pellet, supra n 4, p 157, para. 81. Cf M. Dixon, Textbook on International Law (6th edn, Oxford: Oxford University Press, 2007), p 64; G. Schwarzenberger, supra n 27, p 431. 120 See J. Basdevant (ed.), supra n 44, ‘Paraphe’, p 437; S. Bastid, supra n 4, p 39, para. 30. Cf Ch. Rousseau, supra n 1, vol. I, p 84, para. 60; J. Salmon (ed.), Dictionnaire, supra n 2, ‘Paraphe’, p 802; M. E. Villiger, supra n 38, p 191. 121 Emphasis added. 122 On agreements solo consensu, see J. Salmon, ‘Les accords non formalisés ou solo consensu’, supra n 108, pp 1–28. 123 See para. 4 of the final commentary relating to draft Art. 10 (Art. 12 of the Convention) adopted by the ILC during its 18th session, Report of the ILC to the General Assembly (A/6309/Rev.1), YILC, 1966, vol. II, p 196 where the ILC ‘felt that it was important that the use of initials as a full signature [expressing the consent of the State to be bound by the treaty] should be understood and accepted by the other States’. 124 For examples, see infra paras 43–7. 125 See supra the commentary in this work on Art. 10 of the 1969 Vienna Convention. 126 A. Aust, supra n 10, p 100; J. Dehaussy, ‘Les traités. Conclusion et conditions de validité formelle’ in supra n 4, p 11, para. 13; Nguyen Quoc Dinh, P. Daillier, M. Forteau, and A. Pellet, supra n 4, pp 148–9, para. 74; J. Salmon, Droit des gens, supra n 4, p 74. 127 See also the practice observed by Hans Blix, Treaty-Making Power (London: Stevens & Sons; New York: Frederick A. Praeger, 1960), p 72: It appears certain that unless there is clear evidence to the contrary, the initialling of a treaty does not bind a State. It merely constitutes evidence that the draft text has been drawn up and personally approved by those who have initialled it, and the authority to initial seems to be comprised in the power to negotiate. 128 Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, supra n 42, p 33, para. 115, emphasis added. 129 See inter alia the First Report dated 24 March 1953 (A/CN.4/63) by Sir Hersch Lauterpacht, YILC, 1953, vol. II, p 107, fn 1. Ian Sinclair (supra n 56, p 41) speaks in this respect of the ‘principle of the procedural autonomy of the negotiating States’. See also H. Blix, ‘The Requirement of Ratification’, supra n 27, p 359; A. Bolintineanu, supra n 38, p 673; A. Cassese, supra n 1, p 172; and M. Fitzmaurice, ‘The Practical Working of the Law of Treaties’ in M. D. Evans (ed.), International Law (2nd edn, Oxford: Oxford University Press, 2006), p 192. 130 See in this respect supra the commentary on Art. 11. 131 YILC, 1975, vol. I, p 227, para. 4. See also the First Report by Paul Reuter dated 3 April 1972 (A/CN.4/258) on the question of treaties concluded between States and international organizations or between two or more international organizations, YILC, 1972, vol. II, p 188, para. 56 and p 196, para. 81. 132 See J. Combacau and S. Sur, supra n 4, p 121; R. Jennings and A. Watts, supra n 3, p 1225, para. 600, fn 2. 133 235 UNTS 100–20. The example is quoted by Sir Ernest Satow, supra n 51, pp 249–50, para. 29.41 and commented on by Hans Blix, Treaty-Making Power, supra n 127, p 73, fn 8. See also the intervention by Milan Bartoš at the 17th session, 783rd meeting of the ILC (YILC, 1965, vol. I, pp 54–5, paras 68–9). 134 See the observation of the Belgian delegation at the 17th meeting of the Committee of the Whole (in United Nations Conference on the Law of Treaties, 1st session, Official Documents, Summary Records, p 91, para. 38). 135 See the final commentary relating to draft Art. 10 (Art. 12 of the Convention) adopted by the ILC during its 18th session, Report of the ILC to the General Assembly (A/6309/Rev.1), YILC, 1966, vol. II, p 196. See also I. Sinclair, supra n 56, p 41. In the same sense, the observation of the Japanese government (YILC, 1965, vol. II, p 34) as well as the intervention by Manfred Lachs at the 17th session, 783rd meeting of the CDI (YILC, 1965, vol. I, p 55, para. 74). See also the text of draft Art. 10(2) as well as para. 2 of the commentary, adopted by the ILC during its 7th session, Report of the ILC to the General Assembly covering the work of its 11th session (A/4169), YILC, 1959, vol. II, pp 104–5. Special Rapporteur Sir Humphrey Waldock proposed in his Fourth Report on the Law of Treaties (A/CN.4/177 and Add.1 and 2) to establish a presumption pursuant to which the initialling by a head of State, a head of government, or a foreign minister would be ipso jure considered as the equivalent of signature (YILC, 1965, vol. II, pp 35–6, para. 6). It is, rightly, that such a proposal was not adopted by the ILC. See revised draft Arts 10 and 11 (A/CN.4/L.117 and Add.1), YILC, 1966, vol. II, p 115. Indeed, such a presumption corresponds neither to the practice of the States nor to a need for progressive development of the law of treaties. See the interventions at the 17th session, 783rd meeting of the ILC by Manfred Lachs (YILC, 1965, vol. I, p 55, paras 74–5) and by Sir Humphrey Waldock (ibid, p 55, paras 77–81). 136 For the text of the General Framework Agreement and its 11 appendices, see ILM, 1996, vol. 35, pp 89–152. 137 See A. Aust, supra n 10, p 101 and M. N. Shaw, supra n 16, p 638. 138 Concerning authorization as regards conclusion of treaties and the notion of full powers

in particular, see supra the commentary on Art. 7 of the Vienna Convention in this work as well as Hans Blix, Treaty-Making Power, supra n 127, p 414. With regard to the question of the excess of powers committed by a representative of a State in the procedure of conclusion of a treaty, see infra in this work the commentary on Art. 46 of the Vienna Convention. This could be identified as the problem of ‘imperfect initialling’ (by analogy with the question of the imperfect ratifications). 139 See para. 4 of the final commentary relating to draft Art. 10 (Art. 12 of Convention) adopted by the ILC at its 18th session, Report of the ILC to the General Assembly (A/6309/Rev.1), YILC, 1966, vol. II, p 196. For an example, see supra the Memorandum of Understanding of London initialled on 5 October 1954. See on this subject Sir Ernest Satow, supra n 51, pp 249–50, para. 29.41; Ian Sinclair, supra n 56, p 41, fn 48; and the intervention by Milan Bartoš at the 17th session, 783rd meeting of the ILC (YILC, 1965, vol. I, pp 54–5, paras 68–9). Cf C. Parry, ‘The Law of Treaties’ in M. Sørensen (ed.), Manual of Public International Law (London: Macmillan; New York: St Martin's Press, 1968), pp 198–9. 140 The United States was represented by the Vice-Secretary of State, Warren M. Christopher. 141 For the text of the Declarations of Algiers and related instruments, see ILM, 1981, vol. 20, pp 224–40 or AJIL, 1981, pp 418–32. Apart from the initialling, see also declarations of formal accession formulated by the US and Iranian governments. On the Agreements of Algiers, see inter alia B. Audit, ‘Les “Accords” d'Alger du 19 janvier 1981 tendant au règlement des différends entre les Etats-Unis et l'Iran’, JDI, 1981, pp 721–4; G. Guillaume, Les grandes crises internationales et le droit (Paris: Ed. du Seuil, 1994), pp 210–18; P. Juillard, ‘Le rôle joué par la République populaire et démocratique d'Algérie dans le règlement du contentieux entre les Etats-Unis d'Amérique et la République islamique d'Iran’, AFDI, 1981, pp 33–5. Cf United States Diplomatic and Consular Staff in Tehran case, Order of 12 May 1981, ICJ Reports 1981, pp 46–7. See also J. Klabbers, The Concept of Treaty in International Law (The Hague: Kluwer Law International, 1996), p 74. 142 For the text of the full powers, see ILM, 1981, vol. 20, p 223. 143 See comment of the US government (YILC, 1965, vol. II, pp 34–5). See also the intervention by Paul Reuter at the 17th session, 783rd meeting of the ILC (YILC, 1965, vol. I, p 54, para. 64). 144 Cf H. Blix, ‘The Requirement of Ratification’, supra n 27, p 360, fn 4. 145 See para. 4 of the final commentary relating to draft Art. 10 (Art. 12 of the Convention) adopted by the ILC during its 18th session, Report of the ILC to the General Assembly (A/6309/Rev.1), YILC, 1966, vol. II, p 196. 146 See T. O. Elias, supra n 6, p 22. 147 See in the same sense H. Blix, Treaty-Making Power, supra n 127, p 72. 148 Indeed insofar as the Secretary-General as depositary of multilateral treaties accepts initialling as a means of expressing consent to be bound by a treaty only when the treaty itself provides that initialling will have that effect, the practice of the Secretary-General restricts the scope of Art. 12(2)(a) of the Vienna Convention. Arguably, this restrictive practice regarding multilateral treaties concluded within the UN is inspired by considerations of pragmatism as well as of safety of the final engagement with regard to a multilateral treaty. It follows that the Secretary-General will not scrutinize all the circumstances of the conclusion of the treaty to determine if the States participating in multilateral negotiations were ‘otherwise’ agreed that initialling would (also) constitute consent. 149 A. Aust, supra n 10, p 100. 150 Id. 151 J. P. Grant and J. Craig Barker, Parry & Grant Encyclopaedic Dictionary of International Law (3rd edn, Oxford: Oxford University Press, 2009), p 555, ‘Signature ad referendum’; and para. 5 of the final commentary relating to draft Art. 10 (Art. 12 of the Convention) adopted by the ILC during its 18th session, Report of the ILC to the General Assembly (A/6309/Rev.1), YILC, 1966, vol. II, p 196. Cf J. Basdevant (ed.), supra n 44, ‘Signature ad referendum’, p 568; J. Salmon (ed.), Dictionnaire, supra n 2, ‘Signature ad referendum’, p 1033. As pointed out by Malgosia Fitzmaurice, ‘[t]his commonly indicates either that the signatory State is currently unable to accept the terms of the treaty, or that the plenipotentiary concerned had no definitive instructions in the matter’ (M. Fitzmaurice, ‘The Practical Working of the Law of Treaties’ in supra n 129, p 192). 152 J. P. Grant and J. Craig Barker, supra n 151, p 555. 153 For two examples of confirmation in the form of ‘formal communications’, see the ‘Practice of the UN Secretariat in relation to certain questions raised in connection with the articles on the law of treaties’, Note by Secretariat (A/CN.4/121) in YILC, 1959, vol. II, p 82, point A.3. Professor Jacques Dehaussy alleged that: Paraphe et signature ad referendum doivent, pour valoir signature—avec effet rétroactif au jour où ils ont été donnés—être suivis soit d'une signature complète…, soit d'un avis formel donné aux autres Etats parties ou au dépositaire—qui en donne connaissance aux Etats—par le gouvernement en indiquant que ces actes sont à considérer comme valant signature. (J. Dehaussy, ‘Les traités. Conclusion et conditions de validité formelle’ in supra n 4, p 11, para. 13) 154 It should be stressed that the autonomy of will, consensualism, and the absence of formalism constitute fundamental principles of the law of treaties. See in this respect P.-M. Dupuy, supra n 4, pp 245–6, paras 237–8 and pp 256–7, para. 252, as well as the First Report

by Paul Reuter dated 3 April 1972 (A/CN.4/258) on the question of treaties concluded between States and international organizations or between two or more international organizations, YILC, 1972, vol. II, p 188, para. 56 and p 196, para. 81. As regards consent and (explicit or tacit) verbal agreement, see inter alia A. Aust, supra n 10, p 9; Ph. Gautier, supra n 4, pp 85– 90 and 500–2; P. Reuter, Droit international public (6th edn, Paris: PUF, 1983), p 120; Ph. Manin, supra n 5, pp 75–6; P. Reuter, Introduction au droit des traités, supra n 10, pp 11–12, para. 28, pp 27–8, paras 66–8, and p 51, para. 89; A. Rivier, Principes de droit des gens, vol II (Paris: Arthur Rousseau, 1896), p 64; J. Salmon, Droit des gens, supra n 4, p 61; J. Salmon, ‘Les accords non formalisés ou solo consensus’, supra n 108, pp 20–1; P.-F. Smets, supra n 4, pp 22–6. Cf Ph. Cahier, ‘Changements et continuité du droit international. Cours général de droit international public’, RCADI, 1985–VI, vol. 195, pp 165–6. As regards the reading of a dispatch instead of the delivery of a note, see J. Basdevant, ‘La conclusion et la rédaction des traités et des instruments diplomatiques autres que les traités’, supra n 4, p 605. 155 With regard to the will expressing final consent to be bound by a treaty, it should be noted that the UN Secretary-General only accepts, apart from signature and initialling, the deposit of written instruments. See Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, supra n 42, p 38, para. 128. 156 See A. Aust, supra n 10, p 98. 157 See also the observations of Special Rapporteur Sir Waldock, formulated in his Fourth Report on the Law of Treaties (A/CN.4/177 and Add.1 and 2): ‘In the case of a treaty which is expressed to come into force on signature, there does not appear to be any time-limit within which a signature ad referendum may be confirmed’ (YILC, 1965, vol. II, p 35, para. 4). 158 See para. 5 of the final commentary relating to draft Art. 10 (Art. 12 of the Convention) adopted by the ILC during its 18th session, Report of the ILC to the General Assembly (A/6309/Rev.1), YILC, 1966, vol. II, p 196. See also the text of draft Art. 10(2)(c) and para. 3 of the commentary, provisionally adopted by the ILC during its 14th session, Report of the ILC to the General Assembly (A/5209), YILC, 1962, vol. II, p 170. Cf the text of draft Art. 10(3) and para. 3(c) of the commentary, provisionally adopted by the ILC during its 7th session, Report of the ILC to the General Assembly covering the work of its 11th session (A/4169), YILC, 1959, vol. II, pp 104–5. 159 See inter alia A. Aust, supra n 10, p 98; J. Dehaussy, ‘Les traités. Conclusion et conditions de validité formelle’ in supra n 4, p 11, para. 13; R. Jennings and A. Watts, supra n 3, p 1225, para. 600, fn 5; M. Lueke and Ch. Wickremasinghe, ‘Analytical Report’ in supra n 1, p 10; Nguyen Quoc Dinh, P. Daillier, M. Forteau, and A. Pellet, supra n 4, p 159, para. 83; P. Reuter, Introduction au droit des traités, supra n 10, p 57, para. 100; Ernest Satow, supra n 51, p 270, para. 32.1; M. E. Villiger, supra n 38, p 192. 160 Paragraph 5 of the final commentary relating to draft Art. 10 (Art. 12 of the Convention) adopted by the ILC during its 18th session, Report of the ILC to the General Assembly (A/6309/Rev.1), YILC, 1966, vol. II, p 196. See also Nguyen Quoc Dinh, P. Daillier, M. Forteau, and A. Pellet, supra n 4, p 159, para. 83. 161 See the text of draft Art. 10(2)(c) and para. 3 of the commentary, provisionally adopted by the ILC during its 14th session, Report of the ILC to the General Assembly (A/5209), YILC, 1962, vol. II, p 170. Moreover, the US government underlined that such retroactivity may cause difficulty for States having requirements under their national law to satisfy before they can agree to be bound (YILC, 1965, vol. II, p 34). Similar difficulties may also arise for these States that still have to adopt or modify internal legislation in order to ensure that their national law be in full conformity with their treaty obligations. Special Rapporteur Sir Humphrey Waldock, replied, rightly, that ‘[n]ormally, a State would protect its position under its internal law by making its signature subject to ratification or approval’ (YILC, 1965, vol. II, p 35, para. 4). 162 See para. 5 of the final commentary relating to draft Art. 10 (Art. 12 of the Convention) adopted by the ILC at its 18th session, Report of the ILC to the General Assembly (A/6309/Rev.1), YILC, 1966, vol. II, pp 196–7. In this sense also, see R. Jennings and A. Watts, supra n 3, p 1225, para. 600, fn 5; M. Lueke and Ch. Wickremasinghe, ‘Analytical Report’ in supra n 1, p 10; Ernest Satow, supra n 51, p 270, para. 32.1; M. E. Villiger, supra n 38, p 192. 163 In this respect, it should be noted that the US government had suggested accompanying the principle whereby the confirmation operates retroactively with a restrictive clause thus drawn up: ‘unless the State concerned specifies a later date when it confirms its signature’ (YILC, 1965, vol. II, p 34). See in the same sense the intervention by the Spanish representative, Mr Cuenca, during the 17th meeting of the Committee of the Whole (in United Nations Conference on the Law of Treaties, 1st session, Official Records, Summary Records, Vienna, 26 March–24 May 1968, p 92, para. 42). However, this unilateral exemption was not retained by the ILC on the grounds that ‘this would enable a State to choose unilaterally, in the light of what had happened in the interval, whether to be considered as a party from the earlier or later date’. See para. 5 of the final commentary relating to draft Art. 10 (Art. 12 of the Convention) adopted by the ILC during its 18th session, Report of the ILC to the General Assembly (A/6309/Rev.1), YILC, 1966, vol. II, p 196. 164 See the ‘Practice of the United Nations Secretariat in relation to certain questions raised in connexion with the articles on the law of treaties’, Note by Secretariat (A/CN.4/121) in YILC, 1959, vol. II, p 82, point A.1. 165 Nguyen Quoc Dinh, P. Daillier, M. Forteau, and A. Pellet, supra n 4, pp 148–9, para. 74 and J. Salmon, Droit des gens, supra n 4, p 82. 166 The Swedish government had already drawn the attention of the ILC to a practice which it believed to exist of sometimes attaching to the signature ad referendum the meaning of a

signature ‘subject to ratification’ (YILC, 1965, vol. II, p 34). See also H. Blix, Treaty-Making Power, supra n 127, p 72, fn 6. A note prepared by the UN Secretariat in 1959 surveying the practice of member States specified that apart from two cases, signatures ad referendum were followed by the deposit of an instrument of ratification or acceptance. See the ‘Practice of the United Nations Secretariat in relation to certain questions raised in connexion with the articles on the law of treaties’, Note by Secretariat (A/CN.4/121) in YILC, 1959, vol. II, p 82, point A.4. 167 ‘See Multilateral Treaties Deposited with the Secretary-General, op cit. (UN Publication, Sales No. E.95.V.5), ch. VI.16, note 10’ (original note). 168 Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, supra n 42, p 33, para. 112. A similar practice as regards signature ad referendum is also followed by the Secretary-General of the Council of Europe. See in this respect J. Polakiewicz, supra n 47, p 32. 169 See eg J. Basdevant, ‘La conclusion et la rédaction des traités et des instruments diplomatiques autres que les traités’, supra n 4, pp 615, 617, and 544; J. Devaux, supra n 4, pp 299–309; Ph. Gautier, supra n 4, pp 68–70, 149–309, 533–5; J. Masquelin, supra n 4, pp 293– 300, paras 235–40; J. Verhoeven, supra n 4, pp 387–9. 170 J. Basdevant, ‘La conclusion et la rédaction des traités et des instruments diplomatiques autres que les traités’, supra n 4, pp 617 and 544. 171 See also the interventions by Messrs Carmona (Venezuela), Alvarez (Uruguay), Amado (Brazil), Keita (Guinea), and Vargas (Chile) during the 16th and 17th meetings of the Committee of the Whole (in United Nations Conference on the Law of Treaties, 1st Session, Official Documents, Summary Records, p 85, para. 4; p 86, paras 9–10; p 88, para. 35 and para. 2; pp 91–2, para. 39). 172 This Costarican reserve was made upon signature and confirmed upon ratification. 173 This Peruvian reservation was made upon ratification of the Vienna Convention. 174 L. Wildhaber, ‘Executive Agreements’ in supra n 3, p 316. 175 See, in this respect, Art. 11 of the Vienna Convention and the commentary to it in this work. See also P.-M. Dupuy, supra n 4, p 256, para. 252; E. W. Vierdag, ‘The Law Governing Treaty Relations Between Parties to the Vienna Convention on the Law of Treaties and States Not Party To the Convention’, AJIL, 1982, p 788. 176 For diplomatic practice, see supra paras 6–7. 177 C. Chayet, supra n 1, p 7; M. Frankowska, supra n 26, p 71. 178 P. Reuter, La Convention de Vienne du 29 mai 1969 sur le droit des traités, supra n 23, p 7. 179 It should be noted that the expression ‘constitutional law’ of a State must be understood here in its broadest sense, including, among other things, the constitution, institutional laws and other laws, as well as the customs and constitutional practices of the State. Indeed, it can result from a custom or a constitutional practice of the State that the treaty-making power is also granted to organs other than those officially indicated by the constitution of that State. 180 J. L'Huillier, supra n 76, pp 187–8, para. 319. This act of the Parliament is sometimes characterized by the doctrine as ‘constitutional ratification’. See H. Blix, ‘The Requirement of Ratification’, supra n 27, p 352; G. Fitzmaurice, supra n 68, pp 113–18; Ph. Gautier, supra n 4, p 160; G. Schwarzenberger, supra n 27, p 432. See also para. 1 of the final commentary relating to draft Art. 11 (Art. 14 of the Convention) adopted by the ILC during its 18th session, Report of the ILC to the General Assembly (A/6309/Rev.1), YILC, 1966, vol. II, p 197. 181 As Luzius Wildhaber points out, jurisprudence, in general, is not very prepared to declare an agreement in simplified form invalid under national law (L. Wildhaber, ‘Executive Agreements’ in supra n 3, p 316). 182 See Art. 46 of the Vienna Convention and the commentary to it in this work. See also Land and Maritime Boundary between Cameroon and Nigeria case, Judgment of 10 October 2002, ICJ Reports 2002, p 430, para. 265. 183 Land and Maritime Boundary between Cameroon and Nigeria case, Judgment of 10 October 2002, ICJ Reports 2002, p 430, para. 266. 184 See eg J. Dehaussy, ‘Les traités. Conclusion et conditions de validité formelle’ in supra n 4, p 28, para. 51 and Ph. Gautier, supra n 4, p 160. 185 The reason is that the executive, being only vested with the treaty-making power, no provision of internal law regarding competence to conclude treaties, therefore, was breached within the meaning of Art. 46 of the Vienna Convention. In this sense: J. Salmon, Droit des gens, supra n 4, p 151. Cf Maritime Delimitation and Territorial Questions between Qatar and Bahrain case, Jurisdiction and Admissibility, Judgment of 1 July 1994, ICJ Reports 1994, pp 121–2, paras 26–7 where the Court accepts the international validity of the Minutes signed at Doha on 25 December 1990 by the Ministers of Foreign Affairs of Bahrain, Qatar, and Saudi Arabia and rejects the argument invoked by Bahrain that according to the Constitution of Bahrain, treaties concerning the territory of the State can enter into force only after their positive enactment as a law. 186 Cf J. Salmon, Droit des gens, supra n 4, p 96. 187 S. Rosenne, ‘Treaties, conclusion and entry into force’ in supra n 10, p 935; J. Salmon, Droit des gens, supra n 4, p 97. 188 Indeed, it is not ruled out that the executive believes, if necessary, that the treaty in question should not be integrated in the internal legal order of the State.

189 Regarding ratification, see in this work infra the commentary on Art. 14. 190 J. Dehaussy, ‘Les traités. Conclusion et conditions de validité formelle’ in supra n 4, p 27, paras 48–9; P.-M. Dupuy, supra n 4, p 255, para. 250 and pp 256–7, para. 252; R. JongbloetHamerlijnck, supra n 1, pp 209 and 213; Nguyen Quoc Dinh, P. Daillier, M. Forteau, and A. Pellet, supra n 4, pp 160–1, para. 85; P. Reuter, Introduction au droit des traités, supra n 10, p 56, para. 98; H. H. M. Sondaal, supra n 109, p 46. Contra: A. Cassese, supra n 1, p 172. 191 C. Chayet, supra n 1, p 11. Cf J. Combacau and S. Sur, supra n 4, p 121. 192 See in this respect Art. 14(1)(c) of the Vienna Convention. Special Rapporteur Sir Humphrey Waldock, underlined, rightly, that ‘[n]ormally, a State would protect its position under its internal law by making its signature subject to ratification or approval’ (YILC, 1965, vol. II, p 35, para. 4). See also paras 3 and 8 of the final commentary relating to Art. 11 (Art. 14 of the Convention) adopted by the ILC during its 18th session, Report of the ILC to the General Assembly (A/6309/Rev.1), YILC, 1966, vol. II, pp 197–8. See further the intervention by Mr Blix (Sweden) during the 16th meeting of the Committee of the Whole (in United Nations Conference on the Law of Treaties, 1st Session, Official Documents, Summary Records, p 88, para. 32). See finally J. Masquelin, supra n 4, p 355, para. 297. 193 R. Jongbloet-Hamerlijnck, supra n 1, p 213. 194 A. Cassese, supra n 1, p 172. 195 Land and Maritime Boundary between Cameroon and Nigeria case, Judgment of 10 October 2002, ICJ Reports 2002, p 429, para. 264. * Visiting Professor in public international law, Vrije Universiteit Brussel (VUB); research associate at the International Law Centre of the Université Libre de Bruxelles (ULB), Belgium.

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Volume I, Part II Conclusion and Entry into Force of Treaties, s.1 Conclusion of Treaties, Art.12 1986 Vienna Convention Cédric van Assche From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Treaties, signature — Treaties, conclusion — Customary international law — State practice

(p. 243) 1986 Vienna Convention Article 12 Consent to be bound by a treaty expressed by signature 1. The consent of a State or of an international organization to be bound by a treaty is expressed by the signature of the representative of that State or of that organization when: (a) the treaty provides that signature shall have that effect; (b) it is otherwise established that the negotiating States and negotiating organizations or, as the case may be, the negotiating organizations were agreed that signature should have that effect; or (c) the intention of the State or organization to give that effect to the signature appears from the full powers of its representative or was expressed during the negotiation. 2. For the purposes of paragraph 1: (a) the initialling of a text constitutes a signature of the treaty when it is established that the negotiating States and negotiating organizations or, as the case may be, the negotiating organizations so agreed; (b) the signature ad referendum of a treaty by the representative of a State or an international organization, if confirmed by his State or organization, constitutes a full signature of the treaty. 1. Article 12 of the 1986 Vienna Convention restates, mutatis mutandis, the wording of Article 12 of the 1969 Vienna Convention, the heading of the Article remaining, furthermore, unchanged. The commentary devoted to this latter provision is thereby, mutatis mutandis, applicable to the present commentary.1 2. Let us mention, on a preliminary basis, that Article 12 was adopted at the 5th plenary meeting of the Conference without a vote.2 3. The customary character of the rule embodied in Article 12(1) of the 1986 Vienna Convention is well established in general international law.3 Indeed, the practice whereby international organizations conclude treaties by signature is both rich and relatively old. Let us stress that this practice evidences many treaties thus concluded between international organizations as well as between international organizations and States. A few examples will illustrate this practice. For instance, the protocol concluded between the League of Nations and the United Nations concerning the transfer of the library endowment fund from the League of Nations to the United Nations constitutes an example of a treaty concluded between international organizations by signature.4 Indeed, the protocol, signed in Geneva on 14 April 1947 by Mr Sean Lester, Secretary-General of the League of Nations, on the one hand, and Mr Wlodzimierv Moderow, Director of the European (p. 244) Office of the United Nations, representing the Secretary-General of the United Nations, on the other hand, came into force on 15 April 1947 with retroactive effect as from 1 August 1946.5 Their respective signatures expressed, in the case in point, the final consent of the League of Nations and the UN to be bound by the aforementioned instrument. Another example can be found in the Agreement concluded between the International Atomic Energy Agency, the government of Malaysia and the government of the United States concerning the transfer of a research reactor and enriched uranium.6 Article XIV(1) of the Agreement stipulates that ‘[t]his Agreement shall enter into force upon signature by the Director-General of the Agency and by the authorized representatives of Malaysia and the United States’.7 The Agreement, signed on 22 September 1980, thus entered into force on the same day, in accordance with its Article XIV(1). It should be noted that the affixing of the signatures produced, in fact, a triple effect, namely the authentication of the Agreement, the expression of the consent of the three parties to be bound by the Agreement, as well as the entry into force of the aforesaid Agreement. Mention may also be made of the Memorandum of Understanding concluded between the UN and the government of Romania concerning contributions to the United Nations Standby Arrangements System (with annex).8 The Memorandum was signed on 24 September 1998 by Mr Bernard Miyet, Under-Secretary-General for Peacekeeping Operations, representing the UN, and by H. E. Andrei-Gabriel Plesu, Minister of Foreign Affairs of Romania, representing the government of Romania.9 It came into force, in accordance with its Article IV, on 24 September 1998, the date of the affixing of the two signatures.10 The affixing of the signatures produced here again a triple effect of authentication, final conclusion, and entry into force. 4. In contrast, the practice of affixing initials by a representative of an international organization for the purposes of expressing final consent to be bound by a treaty, is, if not nonexistent, at the very least extremely rare.11 5. Lastly, the practice of the signature ad referendum in the opinion of the international organizations has achieved undeniable success. As emphasized by Mr Calle y Calle at the time of his intervention at the ILC: Generally speaking, the Secretary-General or other person authorized to sign the agreement on behalf of the organization did so ad referendum and the signature had to be approved or confirmed by the supreme organ of the organisation.12 13

By analogy with the practice of the States on the matter,13 the act of confirmation of signature affixed ad referendum by the representative of the international organization retroacts, (p. 245) in theory, at the date of the signature ad referendum.14 Nevertheless, it seems that certain representatives of international organizations affix their signature ad referendum (explicitly or implicitly) subject to a subsequent act of formal confirmation (or approval) emanating from the competent organ to conclude treaties, just as certain representatives of State affix their signature ad referendum subject to ratification.15 In this case, the act of formal confirmation will produce its effects ex nunc. However, because of the confused character of the terminology on the matter, it is more than probable that the practice does not always make the distinction between a ‘confirmation’ operating ex tunc and an ‘act of formal confirmation’ operating ex nunc. 6. It should be recalled, finally, that the fact that Article 12 of the 1986 Vienna Convention makes it possible to conclude by definitive signature, does not exempt the signatory representing an international organization from complying with the rules of the international organization16 governing the internal aspects of the procedure of conclusion of treaties.17 *

CÉDRIC VAN ASSCHE

Footnotes: 1 See also the final commentary relating to draft Art. 12 adopted by the ILC, Report of the ILC to the General Assembly on the work of its 34th session (A/37/10), YILC, 1982, vol. II, Part Two, p 30, para. 1. 2 United Nations Conference on the Law of Treaties between States and International Organizations or between International Organizations, Vienna, 18 February–21 March 1986, Official Documents, vol. I, Summary Records, p 13, para. 51. 3 See the final commentary relating to draft Art. 11 adopted by the ILC, Report of the ILC to the General Assembly on the work of its 34th session (A/37/10), YILC, 1982, vol. II, Part Two, p 29, para. 2. 4 4 UNTS 449–57. 5 On the distinction between the conclusion of a treaty and its entry into force, see supra para. 4 of the commentary on Art. 12 of the 1969 Vienna Convention. In casu, the protocol was concluded on 14 April 1947 by affixing of signatures and entered into force retroactively on 1 August 1946. 6 1227 UNTS 216 ff. 7 Ibid, p 220. 8 2031 UNTS 92–4. 9 Ibid, p 92. 10 Article IV reads as follows: ‘The present Memorandum of Understanding shall enter into force on the date of its signing’. See ibid, p 92. 11 Cf the intervention of Mr Ushakov during the 27th session, 1347th meeting of the ILC, in YILC, 1975, vol. I, p 230, para. 26. 12 Intervention of Mr Calle y Calle during the 27th session, 1347th meeting of the ILC, in YILC, 1975, vol. I, p 229, para. 14. 13 See supra para. 54 of the commentary on Art. 12 of the 1969 Vienna Convention. 14 H. Neuhold, ‘Organs Competent to Conclude Treaties for International Organizations and the Internal Procedure Leading to the Decision to be Bound by a Treaty. Negotiation and Conclusion of Treaties by International Organizations’, ÖZöRV, 1971, Suppl. 1, p 239. 15 See supra para. 55 of the commentary on Art. 12 of the 1969 Vienna Convention. 16 Under Art. 2(1)(j) of the 1986 Vienna Convention, the expression ‘rules of the organization’ means, in particular, the constituent instruments, decisions, and resolutions adopted in accordance with them, and established practice of the organization. In this respect, it is interesting to note that under the terms of the twelfth paragraph of the preamble to the aforesaid Convention, the parties to the Convention are ‘recognizing that the practice of international organizations in concluding treaties with States or between themselves should be in accordance with their constituent instruments’ (emphasis added). 17 See the final commentary relating to draft Art. 12 adopted by the ILC, Report of the ILC to the General Assembly on the work of its 34th session (A/37/10), YILC, 1982, vol. II, Part Two, p 30, para. 2. For the question of the rules of international organizations governing the internal and external aspects of the procedure of concluding treaties, see H. Neuhold, supra n 14, pp 195–268, and esp. pp 243–6. * Visiting Professor in public international law, Vrije Universiteit Brussel (VUB) and research associate at the International Law Centre of the Université Libre de Bruxelles (ULB).

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Volume I, Part II Conclusion and Entry into Force of Treaties, s.1 Conclusion of Treaties, Art.13 1969 Vienna Convention Cédric van Assche From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Consensual arrangements other than treaties — State practice — Customary international law — Opinio juris — Diplomatic missions — Treaties, conclusion — Treaties, signature — Treaties, ratification — Treaties, entry into force — BITs (Bilateral Investment Treaties)

(p. 246) 1969 Vienna Convention Article 13 Consent to be bound by a treaty expressed by an exchange of instruments constituting a treaty The consent of States to be bound by a treaty constituted by instruments exchanged between them is expressed by that exchange when: (a) the instruments provide that their exchange shall have that effect; or (b) it is otherwise established that those States were agreed that the exchange of instruments should have that effect. A. General characteristics 247 Object and purpose 247 Customary status 250 State practice and opinio juris sive necessitates 251 United Nations Conference on the Law of Treaties 252 Subsidiary means for determination of rules of law 255 Case law 255 Legal writings 256 Conclusion 257 B. Problems of interpretation 258 Conclusion by exchange of instruments 258 Definition of the term ‘instrument’ 259 Characteristics of the instrument 259 Absence of particular denomination 259 Absence of formalism 260 Methods of proof of consent 265 Diplomatic practice 265 Methods of proof of collective will 265 Intrinsic proof 265 Extrinsic proof 267 Methods of proof of individual will 270 Suppletory presumption? 271 The Vienna Convention 271 Customary international law 272 Date of conclusion 274 Date of entry into force 279 Bilateral or multilateral treaty 280 C. Problems of validity 281 International validity 283 Internal validity 283

Bibliography Bastid, S., ‘Enquêtes sur les traités. Résultats d'une enquête sur les conditions de conclusion des traités et sur les clauses relatives au règlement des différends’, AFDI, 1967, pp 544–6 Blix, H., ‘The Requirement of Ratification’, BYBIL, 1953, pp 352–80 (p. 247) Bolintineanu, A., ‘Expression of Consent to Be Bound by a Treaty in the Light of the 1969 Vienna Convention’, AJIL, 1974, pp 672–6 Chayet, C., ‘Les accords en forme simplifiée’, AFDI, 1957, pp 3–13 Devaux, J., ‘La conclusion des traités internationaux en forme s’écartant des règles constitutionnelles et dite “conclusion en forme simplifiée” ', Revue internationale française du droit des gens, 1936, vol. I, pp 299–309 Fitzmaurice, G., ‘Do Treaties Need Ratification?’, BYBIL, 1934, pp 113–37 Frankowska, M., ‘De la prétendue présomption en faveur de la ratification’, RGDIP, 1969, pp 62–88 Hamzeh, F. S., ‘Agreements in Simplified Form—Modern Perspective’, BYBIL, 1968–69, pp 179–89 Marcus-Helmons, S., ‘Les accords en forme simplifiée et le droit constitutionnel’, ADSP, 1961, pp 293–313 Rosenne, S., ‘ “Consent” and Related Words in the Codified Law of Treaties’ in Mélanges

offerts à Charles Rousseau. La communauté internationale (Paris: Pedone, 1974), pp 229–8 Smets, P.-F., La conclusion des accords en forme simplifiée. Etude de droit international et de droit constitutionnel et comparé (Brussels: Bruylant, 1969), p 282 Villiger, M. E., Commentary on the 1969 Vienna Convention on the Law of Treaties (Leiden: Martinus Nijhoff, 2009), pp 195–202 Weinstein, J. L., ‘Exchanges of Notes’, BYBIL, 1952, pp 205–26 Wildhaber, L., ‘Executive Agreements’ in Rudolf Bernhardt (ed.), Encyclopedia of Public International Law, vol. II (Amsterdam: Elsevier, 1999), pp 312–18 Wilmanns, J., ‘Note’ in Rudolf Bernhardt (ed.), Encyclopedia of Public International Law, vol. III (Amsterdam: Elsevier, 1997), pp 694–5

A. General characteristics Object and purpose 1. With regard to its object, Article 13 of the 1969 Vienna Convention sets out a means of expressing consent to be bound by a treaty through the exchange of instruments constituting a treaty. It provides that the consent of States to be bound by a treaty constituted by the instruments exchanged between them is expressed by that exchange when the instruments provide that their exchange will have that effect or when it is otherwise established that these States were agreed that the exchange of the instruments should have that effect. 2. Consequently, Article 13 envisages cases where the agreement of the parties is embodied not in a single instrument, but in two or several instruments constituting a treaty. Such agreements are incontestably treaties.1 The treaty is thus concluded by a duality or plurality of juridical instruments, of which one constitutes the offer or pollicitation (or, if necessary, the counter-offer) to conclude, on the one hand, and the other the acceptance of that offer (or, if necessary, of that counter-offer), on the other hand.2 It (p. 248) results from the examination of State practice in this respect that the exchange of instruments is usually carried out by an exchange of correspondence (letters or notes)3 between the head of the diplomatic mission— duly authorized4—accredited to the receiving State, on the one hand, and the minister for foreign affairs of that receiving State, on the other hand.5 Then, as Claude Chayet emphasizes: La volonté d'aboutir à un accord exprès en forme simplifiée résulte donc en général d'une volonté clairement exprimée antérieurement et qui se traduit par la formule coutumière suivante: ‘Si les propositions qui précèdent rencontrent l'agrément du Gouvernement de…un échange de lettres pourrait constater l'accord ainsi réalisé’. C'est la raison pour laquelle et, fort naturellement, de nombreux échanges de lettres commencent par la formule suivante: «Comme suite à l'échange de correspondance intervenu entre le Ministère des Affaires étrangères et l'Ambassade de…au sujet de… j'ai l'honneur de vous faire savoir que le Gouvernement de…accepte de considérer…6 In order to dissipate any misunderstanding as to the exact contents of the agreement, the confirmative letter or note (acceptance) usually reproduces the contents of the initial letter or note (the offer) in extenso.7 However, this is not always the case, especially when the text of the offer presents a certain length.8 The contents of the instruments are usually (p. 249) negotiated or approved beforehand9 and the instruments intended to be exchanged are in general communicated as a preliminary, on an unofficial basis.10 On the other hand, as Jean Masquelin notes: Il ne faut pas confondre les accords qui comportent une dualité d'instruments et qui ne sont conclus que par la conjonction de ces deux instruments, avec les accords faits en une dualité ou en une pluralité d'originaux. Comme on le sait, les accords bilatéraux sont généralement faits en deux exemplaires originaux identiques, destinés respectivement à chacune des Parties contractantes. Dans cette hypothèse, il ne s'agit pas d'accords conclus par la jonction de deux instruments distincts.11 Consequently, only the first category of agreements concerns Article 13 of the Vienna Convention. As for the letter agreement technique,12 this does not relate to Article 13, as the agreement is not concluded by joining two distinct instruments. Finally it must be emphasized that the disjunctive exchanges of notes does not fall, in principle, under the law of treaties insofar as there is no exchange of instruments constituting a treaty, either that the initial note does not formulate an offer to conclude a treaty, or that the acceptance of the initial note formulating an offer to conclude a treaty is not carried out by a confirmative note but through a different behaviour (recognition, acquiescence, etc.).13 These agreements must be described as not formalized or solo consensu.14 3. The purpose of Article 13 of the Vienna Convention is to simplify the international procedure for concluding treaties, allowing States eager to conclude immediately to express their consent to be bound by a treaty through a simple exchange of notes or letters constituting a treaty.15 Arguably, considerations of simplicity, celerity, flexibility, discretion, efficiency, internal or external politics, reasons of domestic constitutional law, or the immediate certainty as to the commitments entered into explain why this means of conclusion is nowadays an undeniable success and very widespread.16 The conclusion of such treaties is, indeed, immediate. The procedure of conclusion is known as ‘simplified’ or (p. 250) ‘short’.17 For this reason, exchange of letters or notes constituting a treaty are traditionally 18

characterized in the legal literature as treaties in simplified form18 (in French: accords en forme simplifiée19), as opposed to treaties known as ‘formal’ or ‘solemn’. Their conclusion does not require any subsequent act (such as, for example, ratification), the exchange of instruments constituting a treaty amounting to final consent of the States concerned, if such is however their intention. 4. Accordingly, treaties in simplified form are international treaties with particular methods of conclusion. As outlined by the ILC: The juridical differences, in so far as they really exist at all, between formal treaties and treaties in simplified form lie almost exclusively in the method of conclusion and entry into force. The law relating to such matters as validity, operation and effect, execution and enforcement, interpretation, and termination, applies to all classes of international agreements.20 In consideration of the definition of the term ‘treaty’ in Article 2(1)(a) of the Vienna Convention, it should be noticed that the Vienna Convention does not make any distinction between treaties in solemn form and treaties concluded by exchange of instruments.

Customary status 5. In order to determine whether Article 13 of the Vienna Convention reflects a customary means of expressing consent to be bound by a treaty, it is advisable successively to (p. 251) examine the practice of States and their opinio juris sive necessitatis, the works of the UN Conference on the Law of Treaties, as well as case law and legal writings as subsidiary means for the determination of the rules of international law.

State practice and opinio juris sive necessitatis 6. The question of the customary character of exchange of instruments as a means of expressing consent to be bound by a treaty must be examined on the basis of State practice and their opinio juris sive necessitatis. 7. The customary character of the rule according to which States can conclude a treaty by exchange of instruments constituting a treaty is firmly established in diplomatic practice. Among the two categories of agreements in simplified form, the category of treaties concluded by exchange of instruments is, by far, the most prevalent and the most widespread.21 The practice of States, which is relatively old,22 is indeed abundant. Have been concluded, accordingly, by exchange of instruments: • circa 25 per cent of all treaties registered with the Secretariat of the League of Nations and published in the League of Nations Treaty Series; • approximately one-third of the treaties registered each year with the Secretariat of the UN; and • nearly 53 per cent of the treaties published in the Treaty Series of the United Kingdom. 23 (p. 252) As for the opinio juris sive necessitatis, States have never disputed the binding character of treaties in simplified form.24 Despite the different methods of conclusion, States deem that there is a material equivalence between solemn treaties and those concluded in simplified form, all being vested with the same binding force.25 It arises from the final clauses of the instruments that it is actually by the act of exchange of instruments that the treaty is concluded and that the consent of the States to be bound by it is expressed.26 In other words, States have the legal conviction that the exchange truly concludes the treaty and commits them definitively. 8. In addition, the object of treaties in simplified form is varied. If it is true that initially these treaties were confined to military, administrative, or technical questions, or were related to a treaty in solemn form (interpretative agreements, agreements adopting implementing, provisional, preparatory measures, etc.), treaties in simplified form, nowadays, have truly invaded all fields of international relations.27 This is evidenced by the multiple exchanges of instruments constituting treaties concluded in the areas of politics, commerce, finance, culture, taxation, aviation, or pertaining to defence, territorial demarcation, dispute settlement, suppressing visas, granting loans, transfer and lease of military bases, development cooperation, compensation, indemnity, etc.28 As Jacques Dehaussy emphasizes: aujourd'hui, on observe en pratique, une quasi-interchangeabilité des formes, traités [en forme solennelle] et accords en forme simplifiée ayant des objets semblables et pouvant comporter, à la charge des Etats, les mêmes obligations.29 9. Consequently, based on the practice of States and their opinio juris sive necessitatis, it may safely be concluded that Article 13 of the Vienna Convention incontestably reflects a customary means of expression of consent to be bound by a treaty.

United Nations Conference on the Law of Treaties 10. Can the customary character of Article 13 can also be inferred from the work of the UN Conference on the Law of Treaties? The paternity of Article 13 of the Vienna (p. 253) Convention belongs to Poland. This provision originates, indeed, in a proposal (A/CONF.39/C.1/L.89) presented by the Polish delegation aiming at adding an Article 10bis, which was worded as follows:

Consent to be bound by a treaty expressed by an exchange of instruments constituting

a treaty The consent of States to be bound by a treaty embodied in two or more related instruments is expressed by the exchange of such instruments, unless the States in question otherwise agreed.30 11. For the author of the proposal, Article 10bis reflected customary international law in its principle. Indeed, the Polish representative, Mr Nahlik, remarked to the Committee of the Whole that: Articles 10, 11 and 12 in the [International Law] Commission's draft did not cover all the methods whereby a State could express its consent to be bound, and notably the most frequent of them, namely, an exchange of notes, not necessarily signed, where that exchange alone expressed the consent of the parties.31 At the ninth plenary meeting of the Conference, he confirmed again the customary character of the exchange of letters as a means of expressing consent to be bound by a treaty. In his view, the draft Articles of the ILC: did not exhaust the matter, since they left out treaties concluded by an exchange of instruments. In such cases it was simply the act of exchange that should be regarded as constituting the expression of the consent of the parties to be bound by the agreement.… As treaties of that type were becoming more and more frequent, the Polish delegation had thought it useful…to propose the inclusion of a new Article 10 bis (A/CONF.39/C.1/L.89) governing the case of such treaties…32 12. Some delegations at the Conference supported the Polish proposal without reservation and considered that it formulated a customary rule concerning the expression of consent to be bound by a treaty. So Mr Bevans, on behalf of the United States, approved this proposal as ‘[m]any agreements were, in fact, concluded by an exchange of notes, and some by notes verbales without signature. The draft convention did not cover that case, and the gap should be filled’.33 Hans Blix, on behalf of Sweden, affirmed the existence of a rule—undisputed in his delegation's view—that when a treaty had been entered into by means of an exchange of notes, the expression of consent lay in that exchange, unless otherwise expressly agreed.34 13. Also supporting Poland's proposal, Mr Jiménez de Aréchaga, on behalf of Uruguay, considered, however, that it constituted ‘a rule of progressive development’.35 In this respect, Mr Alvarez, also intervening on behalf of Uruguay, argued that signature would arguably be the customary means of expressing consent to be bound by a treaty.36 (p. 254) 14. On the contrary, Mr Bindschedler, on behalf of Switzerland, considered that he could not support the Polish proposal for the following reason: It seemed to be based on a confusion between a State's consent, which was a unilateral act whereby it agreed to be bound by a treaty, and the entry into force of a treaty. Consent was given by signature or initialling; it could not be expressed by a material act such as an exchange of instruments. It was the entry into force of the treaty that was determined by the exchange of instruments, though the date of entry into force might also be that of the later instrument, if they were not dated identically, or might be laid down in the agreement itself.37 As an answer to the intervention of the Swiss representative, Mr Denis, on behalf of Belgium, replied that ‘notes exchanged were as often as not unsigned and that their reciprocal delivery was in such cases the means of expressing consent’.38 15. In conclusion, the delegations that expressed themselves about the Polish proposal were, at the very least, divided as to the customary character of the means of expressing consent to be bound by a treaty through the exchange of instruments. It results from an examination of the interventions that three positions were thus defended at the Conference. According to the first position, the exchange is a customary means of expression of the consent to be bound by a treaty. The second position supported the view according to which the exchange of instruments as a means of expressing final consent was a matter of progressive development of international law. Finally, a third position claimed that the exchange of instruments can never be a means of expressing the final consent to be bound by a treaty. 16. Nevertheless, it should be noted that States ultimately approved the exchange of instruments as a means of expressing consent to be bound by a treaty. Put to the vote, the Polish proposal was adopted by the Committee of the Whole by 42 votes to 10, with 27 abstentions,39 on the understanding that the Drafting Committee would make the necessary drafting changes. The Committee of the Whole then adopted the text of Article 10bis as redrafted by the Drafting Committee40 by 69 votes to 1, with 18 abstentions.41 The UN Conference on the Law of Treaties finally adopted Article 13 of the Vienna Convention, on 29 April 1969, in plenary meeting, by 91 votes to 0.42

(p. 255) Subsidiary means for determination of rules of law 17. Case law and legal writings, as subsidiary means for the determination of the rules of public international law, confirm that an exchange of notes or letters can constitute an international treaty producing obligatory legal effects for the parties. However, as to the question of determining whether the exchange itself constitutes a means of expressing consent to be bound by a treaty, these subsidiary means do not bring a concordant answer.

Case law 18. International case law recognizes that an exchange of notes or letters can indisputably constitute an international treaty producing binding legal effects for the parties. Some decisions even seem to indicate that the exchange of instruments constituting a treaty can constitute a means of expressing consent to be bound by a treaty. Max Huber, in the case of British possessions in Spanish Morocco, decided in 1925 ‘que l’échange de lettres mentionné ci-dessus et qui a eu lieu entre les agents autorisés des deux Gouvernements établit de façon manifeste l'accord de leurs volontés'43 and concludes that an ‘accord exécutoire’44 exists, as a consequence, between the two governments. Thus the arbitral award seems to indicate that the exchange of letters constituting a treaty can constitute a means of expressing consent to be bound by a treaty. Examining the question of the form of binding international engagements in the case concerning the Customs Régime between Germany and Austria (Protocol of March 19th, 1931), the Permanent Court of International Justice (PCIJ) was of the opinion that: From the standpoint of the obligatory character of international engagements, it is well known that such engagements may be taken in the form of treaties, conventions, declarations, agreements, protocols, or exchanges of notes.45 However, insofar as the Court did not examine the question from the perspective of the means of expressing consent to be bound by a treaty, one cannot conclude from this Advisory Opinion that the exchange of instruments constitutes a means of expression of the consent to be bound by a treaty. In the Maritime Delimitation and Territorial Questions between Qatar and Bahrain case, the International Court of Justice (ICJ), without referring expressis verbis to Article 13 of the 1969 Vienna Convention46, took note that ‘[the] Parties agree that the exchanges of letters of December 1987 constitute an international agreement with binding force in their mutual relations’47 and concluded that the exchanges of letters of December 1987 constitutes ‘an international agreement creating rights and obligations for the Parties’.48 If the Court did not explicitly specify that the exchange as such constitutes a means of expressing consent to be bound by a treaty, it nevertheless seems to admit it implicitly.

References (p. 256) 19. In addition, it results from a careful examination of domestic case law carried out by J. L. Weinstein, that national courts and tribunals also accept that exchanges of instruments can constitute treaties, producing legal effects.49 20. Three conclusions emerge from this survey of the case law. First, international courts and tribunals considers that an exchange of notes or letters can constitute an international treaty producing obligatory legal effects for the parties. Furthermore, the arbitral award delivered by Max Huber as well as the judgment delivered by the ICJ in the matter of Maritime Delimitation and territorial questions between Qatar and Bahrain seem to indicate that the exchange as such can constitute a means of expressing consent to be bound by a treaty. Lastly, it should be noted that no arbitral or judicial decision has, to our knowledge, asserted that Article 13 of the Convention of Vienna as such reflects customary international law.

Legal writings 21. Legal writings also confirm that an exchange of notes or letters can constitute an international treaty producing binding legal effects for the parties. However, as to the question of determining whether the exchange as such constitutes a means of expressing the consent to be bound, the doctrine is, to say the least, divided. Some authors consider that the exchange of notes or letters constitutes a customary means of expression of the consent to be bound by a treaty.50 Other authors believe, however, that Article 13 codifies custom only in certain respects. Thus, Alexandru Bolintineanu, while not disputing that Article 13 restates a customary means of expression of the consent to be bound by a treaty, nevertheless maintains that the means of proof known as extrinsic of the consent of States to be bound by the exchange of instruments constituting a treaty, such as stated in paragraph (b) of Article 13, are not encountered in diplomatic practice, and do not, consequently, seem to belong to customary international law.51 Other authors still think that Article 13 falls under the progressive development of international law and has subsequently generated a customary rule.52 So Maria Frankowska argues that ‘ni l’échange de notes, ni le paraphe n'étaient considérés, jusqu'à ces derniers temps, comme un procédé de conclusion de traités'.53 A great number of authors finally assert that exchange of notes or letters are treaties in simplified form concluded by signature.54 They confirm that an (p. 257) exchange of notes or letters can constitute an international treaty producing binding legal effects for the parties. However, it is the signature which, in their opinion, would constitute the means by which the States express their consent to be bound by a treaty composed of exchanged instruments. For these authors, it follows that the exchange does not constitute a means of expressing consent to be bound by a treaty. It is true that these authors can find an argument in the Vienna Convention itself. Just as ratification (Art. 14)—and not the exchange of instruments of ratification (Art. 16(a))— constitutes the means of expressing consent to be bound,55 in the same way the signature affixed to the instruments (Art. 12)—and not the exchange of these signed instruments (Art. 13)—would constitute the means of expressing consent to be bound.56 However, these authors do not explain how the exchange of unsigned instruments (eg notes verbales) constituting a treaty can, if necessary, definitively engage the States concerned.57 With respect to exchange of notes, the ILC stated that: these agreements are usually intended by the parties to become binding by signature alone. On the other hand, an exchange of notes or other informal agreement, though

employed for its ease and convenience, has sometimes expressly been made subject to ratification because of constitutional requirements in one or the other of the contracting States.58 Consequently, in its draft Article adopted in 1966, the ILC does not mention the exchange of instruments as a means of conclusion of treaties, such treaties being concluded by signature or, if necessary, by ratification. 22. It results from this short outline that the legal literature—intended to be a subsidiary means for the determination of customary international law—is not of any assistance in determining whether Article 13 presents a customary character.

Conclusion 23. In our opinion, the question of the customary character of the exchange as a means of expressing consent to be bound by a treaty must be settled on the basis of the practice of States themselves and their opinio juris sive necessitatis. It arises from the examination of State practice and their opinio juris sive necessitatis that Article 13 of the Vienna Convention incontestably reflects a customary means of expression of the consent to be bound by a treaty.

(p. 258) B. Problems of interpretation 24. Article 13 considers the exchange of instruments constituting a treaty as a means of expressing the States' consent to be bound by a treaty. The application of Article 13 can nevertheless raise various problems of interpretation. Therefore, we will successively examine the question of conclusion by exchange of instruments, the definition of the term ‘instrument’, the characteristics of the instrument, the methods of proof of consent, the date of conclusion, the date of entry into force, and the bilateral or multilateral character of the treaty concluded by exchange of instruments between several States.

Conclusion by exchange of instruments 25. It must be stressed that it is the act of exchange of instruments which expresses and establishes the consent of States to be bound by a treaty thus concluded.59 Taking into consideration Article 13 of the Vienna Convention, the conclusion stricto sensu of a treaty results, indeed, in the confluence of two or several consents to be bound by the treaty through the exchange of instruments.60 Salmon's Dictionnaire de droit international public defines the expression ‘exchange of letters, of notes’ as follows: A. Acte diplomatique constitué par l'échange entre représentants de gouvernements ou d'organisations internationales de deux ou plusieurs lettres ou notes dont le contenu a été préalablement négocié ou agréé. Ces notes sont liées entre elles en ce sens que la note initiale propose que son contenu et la réponse constituent un accord.… B. L'instrument diplomatique constitué par les documents ainsi échangés.…61 26. As regards Article 13, the exchange, in our opinion, has a double function: on the one hand, it constitutes or forms the treaty62 and, on the other hand, it constitutes a means of expressing consent to be bound by that treaty. 27. However, as already stressed, one cannot but note that, more than three decades after the adoption of the Vienna Convention, part of the literature continues to deny the exchange its status as a means of expressing consent to be bound by a treaty. In this respect, some (p. 259) confusion between the exchange of instruments and the signature of these instruments still reigns as regards the conclusion stricto sensu of treaties by exchange of instruments.

Definition of the term ‘instrument’ 28. Article 13 provides that the exchange of instruments constituting a treaty can express the consent to be bound by a treaty. It poses, consequently, the question of the interpretation of the term ‘instrument’. Basdevant's Dictionnaire de la terminologie du droit international defines the term ‘instrument’ as follows: A.—Terme qui, pris dans son sens propre, désigne le document, l'écrit qui constate un acte juridique, en énonce le contenu. B.—Par extension, terme employé parfois pour désigner l'acte juridique lui-même.63 The Dictionnaire de droit international public, published in 2001 and edited by Jean Salmon, defines the term ‘instrument’ as follows: A. De manière générale acte formel opposé à l'acte substantiel. Origine: du latin ‘instrumentum’. Ant. ‘negotium’.… B. Dans le droit des traités: document officiel contenant l'expression de la volonté des sujets de droit.…64 29. Considering these definitions, the term instrument can, within the framework of Article 13 of the Vienna Convention, be defined precisely as a written document containing the will of a subject of law expressing either an offer or pollicitation (or, if necessary, a counter-offer) to conclude a treaty, or an acceptance of such an offer (or, if necessary, of such a counter-offer).

Characteristics of the instrument 30. The instrument is characterized by the fact that it should not have a particular denomination or be accomplished in accordance with a particular formality.

Absence of particular denomination 31. It is important to note that the instrument in question should not have a particular denomination.65 If it emerges from diplomatic practice that the instrument is usually called a note or a letter,66 practice evidences cases—albeit rare—where the instrument is called correspondence,67 communication,68 message,69 telegram,70(p. 260) aidé-mèmoire,71 or memorandum.72 In addition, the principle of absence of particular denomination is confirmed by the preparatory work. During the second session of the Vienna Conference, Belgium submitted an amendment (A/CONF.39/L.13), of which the first part aimed at replacing the expression ‘exchange of instruments’ by the expression ‘exchange of letters or notes’.73 However, Poland objected for the reason that: The Belgian amendment…would surely not improve the text, since it would unduly restrict the Article's scope. The exchange of letters or notes was certainly the most frequent case of its kind but it was not the only one, since there might be an exchange of memoranda, aide-memoires, and so on. It would be better, therefore, to keep the words ‘Exchange of instruments’. The chairman of the Drafting Committee, Mr Yasseen, stated that: he regarded the…Belgium amendment…as a substantive change, because it would restrict the scope of the Article as approved by the Committee of the Whole. It was therefore for the Conference to take a decision on the matter.74 Belgium finally decided to withdraw the first part of its amendment as ‘the discussion had shown that there might be other cases’75 than these of exchanges of letters or notes. 32. In conclusion, it emerges from diplomatic practice that an exchange of notes, letters, correspondence, communications, telegrams, messages, or memorandum can constitute a treaty and that the consent to be bound by such a treaty can be expressed by the exchange of the aforesaid instruments. 33. Just as the instruments are characterized by an absence of particular denomination, in the same way the treaty itself constituted by these exchanged instruments is not governed by a particular denomination. So the denomination of the treaty thus formed is of little importance.76 The practice, in this respect, is indeed varied. If it is true that the treaty constituted by exchanged instruments is usually described as an agreement, it can also be referred to as an understanding, a modus vivendi, a modus ad interim or provisional agreement, a pactum de contrahendo, etc.77

Absence of formalism 34. The absence of formalism constitutes the instrument's second characteristic. The instrument is not governed by any particular formality other than demanding that it takes the form of a written document. However, the doctrine has sometimes considered that the instruments must be signed and that they must have a relatively solemn form. Consequently, it is advisable to examine these two questions. 35. On the one hand, do the instruments necessarily have to be signed or can they, for example, take the form of a note verbale?78 The question divides the literature. Some (p. 261) authors admit that the exchange of instruments constituting a treaty can be carried out by an exchange of notes verbales.79 Other authors deem that the instruments must necessarily be signed.80 Others still are of the opinion that the exchange of notes verbales is not governed by Article 13, but can nevertheless constitute a means of expressing consent to be bound by a treaty aimed at by Article 11 in fine of the Vienna Convention which admits ‘any other means, if so agreed’.81 In our opinion, the question must be settled on the basis of the practice of States themselves. Diplomatic practice is acquainted with cases where the exchange of instruments constituting a treaty takes the form of an exchange of notes verbales.82 Having studied the practice on the matter, Weinstein stresses that: However, a practice, never widely adopted, developed during the era of the League of Nations of such notes being in the form of notes verbales. These were unsigned documents—sometimes stamped with the seal of a Foreign Office or Embassy—and were phrased in a more personal manner than is customary in exchanges of notes. Apart from these features there is no clear distinction between an exchange of notes composed of notes verbales and one composed of ordinary notes. The range of subjectmatter of notes verbales is equally unrestricted…In recent years a development of the note verbale—although the parties still, on rare occasions, use the latter title expressly —has been the use of notes, which, though not termed notes verbales, are identical in form. These are in some cases unsigned, and in others initialled or stamped with a seal. This, too, is a practice which is not widespread.83 Moreover, during the tenth plenary meeting of the Vienna Conference, Mr Denis, intervening on behalf of Belgium, even alleged that ‘exchanges of notes were as often as not unsigned’.84 Finally, let us note that the exchange of two notes verbales constituting an agreement satisfies the definition of the term ‘treaty’ as provided by Article 2(1)(a) of the Vienna Convention.85 (p. 262) 36. One can therefore conclude that the instruments should not necessarily be signed and that they sometimes could be initialled and/or sealed with the seal of the Ministry of

Foreign Affairs or of the embassy. 37. Moreover, one can raise the question of determining whether the instrument should not assume a slightly solemn form. In this respect, Claude Chayet alleges that: l'examen attentif de la correspondance diplomatique conduit à la constatation suivante: les fonctionnaires du Ministère des Affaires étrangères, que ce soit en France ou ailleurs, sont conduits…à considérer que la conclusion d'un accord entre chancelleries doit intervenir dans une forme légèrement plus solennelle que celle d'une lettre ou d'une ‘note verbale’ ordinaire.86 This solution, according to Chayet, would be justified insofar as: il convient de rappeler que la correspondance entre Chancelleries est quotidienne et que l'objet même de cette correspondance est de résoudre les problèmes soulevés par des thèses opposées. On perçoit donc aisément que si la correspondance diplomatique est quotidienne, quotidienne aussi doivent être des lettres par lesquelles sont acceptées ou rejetées, partiellement ou totalement, les prétentions d'Etats étrangers. Il est clair que tous ces textes constituent, dans une certaine mesure, des accords en forme simplifiée; mais il est tout aussi évident que l'on ne peut retenir une telle conclusion dont l'effet serait de rendre imprécises les limites de cette catégorie d'engagements internationaux.87 38. Chayet's thesis calls for several remarks, however. First of all, as already mentioned, the careful examination of diplomatic practice proved that the exchange of instruments constituting a treaty can take place by a simple exchange of notes verbales. Moreover, neither the Vienna Convention in general, nor the definition of the term ‘treaty’ in Article 2(1)(a) of the Convention, requires that the instruments be written in a slightly solemn form. Finally, would Article 13 impose any solemnity in this respect? The following answer, given by Philippe Manin, undoubtedly appears justified: Cette formule finale qui indique que les notes échangées constituent bien un accord entre États est utile pour distinguer l'accord ainsi conclu de la simple correspondance diplomatique. La C.V. tend d'ailleurs à préconiser qu'il en soit ainsi (Art. 13: ‘Le consentement des États à être lié par un traité constitué par les instruments échangés entre eux s'exprime par cet échange, lorsque les instruments prévoient que leur échange aura cet effet’. Lorsqu'il n'en aura pas été ainsi: il faudra rechercher si l'intention des parties était bien de se lier par un accord (CV Art. 13/b)).88 Indeed, the cardo quaestionis consists less in determining whether the instruments are subjected to a certain solemnity, than in establishing the true intention of the parties. Looking at the definition of the term ‘treaty’ retained by the Vienna Convention, namely an international agreement concluded between States in written form and governed by international law, it is, indeed, essential to identify the nature of the intention of the parties involved. Did the parties have a political or legal intention ‘to conclude an agreement’? There is no choice but to accept that an exchange of notes can constitute a treaty as well as a political agreement.89 Two assumptions must, in fact, be distinguished in this (p. 263) respect. On the one hand, from a political intention to conclude, a political agreement (gentlemen's agreement or memorandum of understanding) can result which does not contain legal obligations—but only political obligations—for the gentlemen involved. On the other hand, from a legal intention to conclude, a legal agreement can result which will not necessarily be a treaty. If, and only if, subjects of international law had the legal intention to conclude a written agreement and had submitted it to international law (and not to another legal order, such as, for example, the national law of one of the parties), the legal agreement could be described as a ‘treaty’.90 In the case of exchange of instruments constituting a treaty, it emerges from diplomatic practice that States usually have recourse to formulae or formal clauses in order to express their legal intention clearly to conclude a treaty.91 The States' resort, in their diplomatic correspondence, to slightly solemn formulae or formal clauses is precisely to dispel any ambiguity as to the legal nature of their pollicitation or acceptance. 39. So, for example, are the following formulae and formal clauses mostly stipulated in the pollicitations or counter-offers of States willing to conclude a treaty by exchange of notes or letters: If the proposals that precede meet the approval of your Government, I propose that the present note and your reply in the affirmative shall constitute an Agreement between our two Governments, which will enter into force on the date of your reply; I have the honour to inform you that the Government of…is prepared to conclude with the Government of…an Agreement under the following conditions, which will enter into force on…; The Embassy proposes that the present note and the confirmative answer of the Ministry of Foreign Affairs constitute an agreement between…and…which will enter into force a month after the date of reception of the aforesaid confirmative note of the Ministry of Foreign Affairs and which will remain in force for the duration of a year. Such clauses or formulae using the term ‘agreement’ or the expression ‘to enter into force’ indicate that the State in question is prepared to conclude a treaty and formulates, for this purpose, a legal offer. In the same way, the following formulae and clauses are often stipulated in the confirmative note (the acceptance) addressed to the State author of the initial note (the offer): I have the honour to acknowledge receipt of note No…of Your Excellency on…,

conceived in these terms: [Text of the initial note] I have the honour to inform Your Excellency that the Government…accepts the aforesaid proposals and that Your Excellency's note, as well as the present reply, are regarded as constituting an Agreement made between our two Governments on the matter; or, The Ministry of Foreign Affairs of the Kingdom of…presents its compliments to the Embassy of the Republic of…and has the honour to acknowledge receipt of the note of the Embassy of…, No…, which reads as follows: [Text of the initial note] (p. 264) The Ministry has the honour to inform the Embassy that the proposals which precede meet the approval of the Kingdom of…and that the Embassy's note and the present confirmative note constitute an Agreement between the Kingdom of…and the Republic of…which will enter into force on the date of this note. Such clauses or formulas employing the terms ‘approval’ and ‘agreement’, combined with the expression ‘to enter into force’ indicate that, on the one hand, the recipient State of the initial note has understood that the author State of the initial note has the intention to conclude a treaty and that, on the other hand, by sending a confirmative note he expresses his acceptance with regard to the offer formulated in the initial note. 40. However, such slightly solemn formulae or clauses cannot be considered as essential formal conditions. Unlike Claude Chayet claims, one cannot a priori exclude that the ordinary and daily correspondence between Ministries of Foreign Affairs and diplomatic missions can be described as treaties constituted by exchanges of letters or notes.92 As Paul Reuter emphasizes: on peut conclure de l'examen d'une masse de correspondence échangée, qu'il en résulte un traité.93 The question of determining whether an exchange of correspondence constitutes a treaty must amount to a question of intention. Did the ministers, diplomatic agents, or empowered civil servants intend to solve the problem in question by means of a legal agreement governed by public international law, thus offering an obligatory legal answer to the parties in question?94 If such is the case, a treaty was concluded. Just as the majority of natural persons contract daily in national law, in the same way it is not impossible that States conclude, through their ordinary correspondence, treaties daily, most of the time—it is true—on minor matters. It is, however, to be noted that States are not always aware of the legal consequences of their intentions and their acts on the matter.95

References 41. In conclusion, it emerges from the diplomatic practice of States that an exchange of notes, letters, correspondence, communications, telegrams, messages, memoranda, or notes verbales can constitute a treaty if such is the intention of the States and that the consent to be bound by such a treaty can be expressed by the exchange of the said instruments.

(p. 265) Methods of proof of consent Diplomatic practice 42. On a preliminary basis, from contemporary diplomatic practice the following observation ensues. The exchanged instruments constituting a treaty are usually not submitted to ratification, acceptance, or approval.96 Consequently, the conclusion of the treaty is immediate and in simplified form. 43. However, practice evidences cases—rather rare, it is true97—where States conduct an exchange of notes,98 letters,99 declarations,100 or notes verbales101 subject to ratification or approval.102 In this case, the exchange of instruments does not constitute a mode of conclusion, the treaty being concluded by ratification or approval. Since it must be concluded in solemn form, the treaty, consequently, is not concluded immediately.

Methods of proof of collective will 44. The methods of proof of consent to be bound by exchange of instruments constituting a treaty are enumerated in paragraphs (a) and (b) of Article 13 of the Vienna Convention according to which the consent of States to be bound by a treaty constituted by instruments exchanged between them is expressed by that exchange: when the instruments provide that their exchange will have that effect; or when it is otherwise established that those States were agreed that the exchange of instruments would have that effect. These methods can be described as methods of proof of collective will. The exchange of instruments constituting a treaty will constitute, indeed, a means of expressing consent of the States to be bound by the treaty insofar as these States have expressed an agreement in that sense: either the instruments constituting the treaty in question envisage it expressly or implicitly (intrinsic proof ), or it is otherwise established that these States were expressly or implicitly agreed that it would be so (extrinsic proof).

Intrinsic proof 45. The first method of proof of collective will of States is the proof known as ‘intrinsic’ such as provided for in Article 13(a) of the Convention, by virtue of which the exchange (p. 266) between States of instruments constituting a treaty expresses their consent to be bound by the treaty when the instruments provide that their exchange will have that effect. In other words, the proof of the agreement to grant to the exchange the quality of means of expression of the consent to be bound will be found, either explicitly or implicitly, intrinsically in the text of the treaty itself. One can cite, as an example, the exchange of notes of 17 and 25 August 1950 constituting an agreement between the Netherlands and Luxembourg regarding the placement of Dutch agricultural workers in Luxembourg.103 The initial note No. 1277 dated 17 August 1950, written by the envoy extraordinary and minister plenipotentiary of the Netherlands in Luxembourg and addressed to the minister for foreign affairs of Luxembourg, contains the following final clause: The present note, and Your Excellency's reply, shall be considered as constituting an agreement between our two Governments on the subject.104 The confirmative note written by the Luxembourg minister for foreign affairs addressed to the envoy extraordinary and minister plenipotentiary of the Netherlands to Luxembourg first acknowledges receipt of the Dutch note, then reproduces the contents of the aforesaid note in full, and ends with the following final clause: Your Excellency's note, and the present reply, shall be considered as constituting an agreement between our two Governments on the subject.105 Thus, the proof of this (explicit) will can be found in the text of the treaty itself.106 In the same way, one can reasonably infer from a final clause stipulating that the treaty will enter into force on the date of the confirmative note, that the exchange amounts to final consent. Also, for example, the exchange of notes of 23 May 1950 constituting an agreement between the United States and Iran relating to mutual defence assistance.107 The initial note originating from the US Acting Secretary of State and addressed to the chargé d'affaires ad interim of Iran contains the following final clause: I propose that, if these understandings meet with the approval of the Government of Iran, this note and your note concurring therein will be considered as confirming these understandings, effective on the date of your note…108 The confirmative note written by the chargé d'affaires ad interim of Iran and addressed to the US Acting Secretary of State first acknowledges receipt of the US note, then reproduces the contents of the aforesaid note in full, and ends with the following final clause: I have the honour to concur in the proposals made in your note and to inform you that the understandings set forth therein meet with the approval of the Government of Iran. That note and the present note, accordingly, are considered as confirming these understandings, effective on this date…109 (p. 267) Proof of the common will of the two contracting parties is thus implicitly enshrined in the very text of the treaty, namely in the final clause concerning its entry into force. 46. In these cases, proof of common will of States thus emerges intrinsically from the very text of the treaty. For this reason, this proof is known as ‘intrinsic’.

Extrinsic proof 47. The second method of proof of collective will is the proof known as ‘extrinsic’. Consequently, proof of collective will should be sought outside the text of the treaty. According to Alexandru Bolintineanu, extrinsic proof would not have been established in customary international law at the time of the adoption of the Vienna Convention, in the absence of diplomatic practice in this sense.110 So the admission of extrinsic proof by Article 13(b) would, it is submitted, amount to a progressive development of international law on the matter. Weinstein seemed to refute this allegation by affirming in 1952 that: In some cases exchanges of notes have been ratified although there was no provision for this in the agreement: e.g. Exchange of Notes of 4 July 1948 between the United States and Turkey: U.N.T.S. 34 (1950), p. 185.111 48. In any event, as general international law on the matter does not impose formal requirements, the Vienna Conference deemed the period convenient for admitting extrinsic proof for the purpose of establishing whether the States in question did not otherwise express a collective will as to the legal consequences of the exchange of their instruments constituting a treaty. In this respect, the principle of the autonomy of will of the negotiating States constitutes, indeed, a guiding principle.112 It is the ratio legis of Article 13(b) of the Vienna Convention, which stipulates that the consent of States to be bound by a treaty is expressed by the exchange of instruments when it is otherwise established that these States were agreed that the exchange would have that effect. In this respect, Paul Reuter, the Special Rapporteur on the law of treaties concluded between States and international organizations or between two or more international organizations, stressed in 1975 that: It could hardly be denied that, in the spirit of the Vienna Convention, the words ‘it is otherwise established that the…States…were agreed’ could apply to an oral or even a tacit agreement.113 49. The problem is, however, that the 1969 Convention does not identify the means which

make it possible to discover the collective intention of the parties. Due to the general and vague character of the expression ‘is otherwise established’, Article 13(b) seems to admit all means of proof of the collective intention of the parties.114 (p. 268) 50. If the text of the treaty itself does not solve the question of the legal consequences of the exchange of instruments, the intention of States having carried out such exchange of instruments constituting a treaty will have to be established, in accordance with the principles of interpretation as set forth in Articles 31 to 33 of the Vienna Convention. Consequently, a careful examination will be necessary, among other things, of the context,115 of any later agreement,116 of any subsequent applicative and interpretative practice,117 of the preparatory work of the treaty,118 as well as all the circumstances relating to its conclusion.119 In addition, it is not ruled out that the common and constant practice of the States concerned can also, if necessary, constitute an indicium, even an acceptable means of proof.120 Thus, the fact that similar treaties concluded by the parties between them or concluded by each of the parties with third States were concluded by exchange of instruments constituting treaties, can constitute evidence of the will of the States concerned.121 In the same way, it is probable that the note published by the Secretariat of the United Nations accompanying the publication of the treaties in the United Nations Treaty Series and indicating that the treaty in question ‘entered into force on…by the exchange of the aforesaid notes’, also constitutes an acceptable means of proof.122

References (p. 269) 51. Lastly, a certain doctrine accepts that the nature, the contents, or the object of the treaty constitutes evidence of the collective will of the States. Thus, exchanges of notes regulating matters of lesser importance would not be subject to ratification, except when expressly contrary clauses are contained in the notes.123 If it is true that State practice accepts in general that consent is expressed by the exchange when it concerns an administrative, interpretative, or implementing agreement, one cannot, however, establish the criterion of the object of the treaty as a legal principle. As already pointed out, there is a quasiinterchangeability of forms for similar objects of minor or major importance.124 Here still, it is only if one particular intention can be deduced from the nature of the act due to a common and constant practice of the States in question, that the criterion of the nature of the conventional act could, if necessary, be retained. 52. In conclusion, it boils down to the issue of the intention—if not real, at the very least supposed—of the States in question. In this respect, States have complete freedom to express their collective will on this subject by whatever means. This is why Article 13(b) seems to accept all means of proof of collective will as to the legal consequences of the exchange. In the best of cases, the interpreter will gather from the context, the preparatory work, the circumstances of the conclusion of the treaty, the practice of the States concerned, and the note published in the United Nations Treaty Series, a number of indicia, even of evidence allowing him to detect the collective intention of the States concerning the legal consequences of the exchange of their instruments constituting a treaty.125 In the worst of cases, the intention of the parties will have to be established, and even presumed, on the basis of only one element of evidence. International law, however, leaves to the free examination of the interpreter—if necessary, of the judge—the task of solving the delicate question of the weighing of indicia of the evidence thus obtained. As Manfred Lachs underlined, an international jurisdiction ‘enjoys a complete liberty of action and appreciation as for the evidence which are presented to him, and that for the facts as for the law’.126 Thus, the interpreter, starting from the indicia and evidence brought to his attention, will (p. 270) have to determine if the parties in question wanted to express, by the exchange, their consent to be bound by the treaty. Let us underline finally that neither the Vienna Convention on the Law of Treaties, nor customary international law contains any suppletory rule in the event of absence of intention on behalf of the interested States.127

References

Methods of proof of individual will 53. On the one hand, contrary to Articles 12, 14, and 15 of the Vienna Convention which deal with the expression of the consent of a State to be bound by a treaty by affixing a final signature, by ratification, or by accession, Article 13 refers to the expression of the consent of States to be bound by a treaty through the exchange of instruments constituting a treaty.128 Conventional practice, however, presents cases where the exchanged instruments reserve ratification or approval for only one State.129 In this case, the treaty is concluded by exchange of instruments for one, and by ratification or approval for the other. Legal (ie national constitutional law) and political reasons can, indeed, explain why the same treaty can thus be concluded in simplified form for one party and in solemn form for the other.130 This practice, however, is not covered by Article 13, insofar as, in such a case, the expression of consent to be bound by a treaty by exchange of instruments does not emanate from States but from only one State. 54. On the other hand, contrary to Article 12(1)(c) and Article 14(1)(c) and (d) of the Vienna Convention which accept, as methods of proof of individual will, the proof by full powers, unilateral declaration during the negotiation, or by signature subject to ratification, Article 13 only admits methods of proof of collective will for the purpose of determining whether the exchange of instruments constituting a treaty expresses the consent of States to be bound by a treaty.

55. The drafting of Article 13 is all the more regrettable since several Articles of the Vienna Convention consider directly or indirectly the assumption of the consent of a State to be bound by the exchange of instruments constituting a treaty. First, Article 11 of the Convention provides that ‘[t]he consent of a State to be bound by a treaty may be expressed by…exchange of instruments constituting a treaty…’.131 Next, the assumption is (p. 271) also present in Article 18(a) of the Convention, by virtue of which a State must refrain from acts which would defeat the object and purpose of a treaty when it has exchanged instruments constituting the treaty subject to ratification, acceptance, or approval, until it has made clear its intention not to become a party to the treaty. Lastly, the methods of proof of the individual will as regards ratification envisaged in Article 14(1) of the Convention accept that the exchange of notes or letters can be subject to ratification for only one State when the representative of that State has signed the treaty subject to ratification (Art. 14(1)(c) of the Convention) or when the intention to ratify appears from the full powers of its representative or was expressed during the negotiation (Art. 14(1)(d) of the Convention).

Suppletory presumption? 56. For some authors, the formal criterion of the denomination of the instruments constituting a treaty constitutes an indicium of a piece of evidence of the intention of the States.132 The exchange of instruments called ‘notes’ or ‘letters’ would express, consequently, because of their very name, the consent of States to be bound by the treaty thus concluded.133 Other authors, who put the accent on the form in which the treaty is concluded, note that, in the case of treaties concluded in the form of exchange of notes or letters, the exchange is worth final consent to be bound by the treaty, unless the States expressly provide for ratification. Thus, Sir Robert Jennings and Sir Arthur Watts note that the ‘[e]xchanges of notes [do] not normally require ratification, unless expressly provided’.134 57. The question therefore arises whether a rebuttable presumption would exist under the terms of which a treaty constituted by exchange of notes or letters is supposed to be concluded by that exchange on the assumption that the States in question did not express their intention on this subject either in their instruments or otherwise. It is appropriate to examine this question under the Vienna Convention, on the one hand, and under customary international law, on the other hand.

The Vienna Convention 58. The Vienna Convention does not contain any suppletory presumption on this subject. Neither the text of Article 13 of the Convention, nor its context, mentions such a subsidiary rule, according to which the consent of States to be bound by a treaty constituted by exchanged instruments is expressed by that exchange, unless the States in question otherwise agreed. Moreover, the preparatory work confirms this conclusion with certainty. As already mentioned, Article 13 originates in a Polish proposal (A/CONF.39/C.1/L.89).135 Draft Article 10bis, as submitted by the Polish delegation, contained a (p. 272) suppletory presumption in favour of the exchange as a means of expressing the consent to be bound. Put to the vote, the Polish proposal was adopted by the Committee of the Whole ‘on the understanding that the Drafting Committee would make the necessary drafting changes’.136 The Drafting Committee redrafted the text of Article 10bis as follows:

Article 10 bis The consent of States to be bound by a treaty constituted by instruments exchanged between them is expressed by that exchange when: (a)  the instruments provide that their exchange shall have that effect; (b)  it is otherwise established that those States were agreed that the exchange of instruments should have that effect.137 The chairman of the Drafting Committee, Mr Yasseen, justified the deletion of the suppletory presumption enshrined in the Polish proposal: so as to take account of the Committee of the Whole's decisions on the other articles relating to the expression of consent; the Committee of the Whole had deemed it inappropriate to include a subsidiary rule in favour of a particular method of expressing that consent. The wording of the Polish amendment might be construed to mean that it was stating a subsidiary rule establishing the presumption that an exchange of instruments constituted a treaty. That was the conclusion that had been arrived at by the majority of the members of the Drafting Committee.138 In accordance with its own initial decision, the Committee of the Whole thus decided in favour of the suppression of the presumption and adopted, in this respect, the text altered by the Drafting Committee.139 59. One may, consequently, conclude that the Vienna Convention does not contain any suppletory presumption in favour of the exchange as a means of expressing consent to be bound by a treaty.140

Customary international law 60. Although the Vienna Convention does not contain any presumption, it is nevertheless advisable to determine whether such a presumption would exist in customary international law. What is the conventional practice of States in this respect and what is their opinio juris sive necessitatis? If necessary, would a later interpretative agreement141 or a common 142

interpretative practice establishing such an agreement142 exist between the States parties to the Vienna Convention with regard to the application or interpretation of Article 13? (p. 273) 61. State practice seems to be uniform in this respect. Hans Blix, examining the League of Nations period as well as the period 1945–53, affirmed in an article published in 1953 that: An examination of the modern practice of States gives convincing support to Professor Lauterpacht's view. Exchanges of notes frequently lack provisions concerning the mode of entry into force; in such cases they are not, as a rule, ratified. Of the League treaties, some seventy-five such exchanges of notes were found, and none of them was ratified. Of the United Nations treaties, 125 such exchanges of notes were found, and only one of them was ratified.143 In his capacity as head of the Swedish delegation at the Vienna Conference, Mr Blix alleged the existence of a legal presumption, a residual rule—which was undisputed in his delegation's view— that when a treaty had been entered into by means of an exchange of notes, the expression of consent lay in that exchange, unless otherwise expressly agreed.144 In his view, it would appear to be ‘a rule to the effect that no subsequent approval was required after the exchange of instruments, unless otherwise agreed between the parties’.145 Maria Frankowska, carrying out the examination of the 1,579 treaties contained in volumes 453 to 552 of the United Nations Treaty Series covering the period 1963–65, arrived at the same conclusion. Out of a total of 1,579 treaties, 151 treaties did not contain a clause relating to the means of expressing the consent to be bound by the treaty. She concludes that: Tous ces traités sont entrés en vigueur en vertu de la procédure à un degré (soit par la signature, soit par l'échange de documents constituant l'accord). Il n'y en a pas un seul qui ait été ratifié ou approuvé.146 62. As for the opinio juris sive necessitatis, a treaty constituted by exchange of notes or letters would be, in the spirit of these States, necessarily supposed to be concluded by the exchange, if the States in question did not express their intention on this subject. For which other reasons, if not those of simplicity and convenience, would States have recourse to the exchange of instruments? Such is the thesis of the second Special Rapporteur, Sir Hersch Lauterpacht.147 As for the ILC, although it defended a similar (p. 274) thesis at a given moment,148 it did not, however, retain it in the final text of its draft Articles adopted in 1966, even if the final commentary is still reminiscent of that view at a certain point.149 63. In our opinion, the arguments put forward by Blix and Frankowska are hardly convincing. It is very probable that States were agreed otherwise (for example, in an exchange of mails, a verbal or even tacit agreement between the negotiators concerned) that the exchange of their instruments would express their final consent to be bound by the treaty, this not being obviously observable to the researcher in the library carrying out the analysis of the conventional practice of States. As for Lauterpacht's thesis, by presuming ex officio consent by the exchange, it restricts, to some extent, the freedom of expression of States by preventing them from expressing their intention a posteriori on this subject. Ultimately, as Mr Jiménez de Aréchaga correctly emphasizes, there is a ‘danger of introducing a presumption in virtue of which a State could become bound to another State by such a simple and common act as an exchange of notes’.150 Consequently, we are of the opinion that no legal presumption exists in favour of the exchange in general international law. No hierarchy exists between the various means of expression of consent to be bound by a treaty, nor any presumption in favour of one particular means.151 Ultimately, the question of determining whether the exchange expresses consent to be bound by a treaty is essentially a question of intention.152 64. In conclusion, neither the Vienna Convention nor customary international law establishes a suppletory presumption in favour of the exchange.

Date of conclusion 65. It should first be noted that the conclusion of a treaty and its entry into force are two distinct legal operations,153 even if they may coincide. If, taking Article 13 of the Vienna Convention into consideration, the conclusion stricto sensu of a treaty results from the conjunction of two or several consents to be bound by the treaty through the exchange of instruments, the entry into force enables the treaty to produce its full juridical effects. 66. As previously emphasized, the act of exchange of instruments constituting a treaty thus expresses the consent of States to be bound by a treaty. We still have to determine the exact date of exchange of the instruments. The question is of particular interest, insofar as, (p. 275) with regard to Article 13, it is the date of exchange that determines the dies a quo of the obligation not to defeat the object and purpose of a treaty prior to its entry into force.154 67. On a theoretical level and by analogy with national law, several possibilities can, indeed, be contemplated to determine the exact date of exchange of the instruments: the theory of emission (or declaration) of acceptance (date of the last of the instruments constituting a treaty), the theory of forwarding of acceptance (dispatch date of the last of the instruments constituting a treaty), the theory of reception of acceptance (date of reception of the last of the instruments constituting a treaty), even the theory of awareness (or effective information) of acceptance. Let us note that the question matters only if the acts (drafting, sending, reception, and reading of the last instrument constituting a treaty) are spread over time. Thus, an acceptance written, read aloud, and given the same day by a head of a diplomatic mission to a minister for foreign affairs implies that the treaty will be concluded the same day. It is only if

these acts are not carried out at the same time, that the question of the determination of the exact date of exchange arises. 68. It should be noted that the authors have never genuinely studied the question of the date of conclusion of a treaty concluded by exchange of instruments, the doctrinal examination falling exclusively on the date of entry into force. The examination of the date of entry into force can, however, be relevant to the examination of the date of conclusion. Indeed a connection exists between the date of conclusion and that of entry into force of a treaty concluded by exchange of instruments insofar as, in accordance with Article 24(2) of the Vienna Convention, a treaty enters into force, unless a contrary intention appears, as soon as the consent to be bound by the treaty has been established for all the negotiating States, in casu on the date of the exchange of instruments.155 Within the limits specified supra, one should note that the literature is divided between the theory of emission of acceptance and that of reception of acceptance. Indeed, some authors assert that the date of the last instrument determines the date of the exchange and, consequently, the date of conclusion of the treaty. Thus, Chayet claims that: Dans l'hypothèse d'un échange de lettres c'est en principe et, sauf stipulation contraire explicite ou implicite, la date de la deuxième ou encore de la dernière lettre qui constitue le point de départ.156 Weinstein defends the same thesis, while upholding that: As there are no rules prescribing the form of exchanges of notes, so there are none prescribing the time at which agreements concluded in this manner shall become effective. In the absence of an express provision, when the date of the notes is the same that date will be decisive for the purpose; when the dates are different the date of the later note will have that effect.157 Other authors, on the other hand, allege that the date of reception of the last instrument determines the date of the exchange and, consequently, the date of conclusion of the treaty.158 Finally, other authors still are profoundly hesitant. Thus, Satow hesitates between the date of the last note or the date of its reception. In fact, it is suggested that: (p. 276) Normally the Notes exchanged recording the agreement bear the same date, in which case, unless they provide otherwise, the agreement has effect from that date. If they bear different dates, that of the last Note, or at any rate the date of its receipt, is the governing date (unless it is otherwise provided), since the agreement cannot be regarded as completed until it is plain that it has been accepted on both sides.159 And Fitzmaurice declares that: …an exchange of notes…come[s] into force either on the actual date of the exchange, or perhaps on the date of the last note of the series, or on a date agreed upon and indicated in the notes themselves, as the parties may desire.160 69. It emerges from an examination of the literature that none of the two theories creates unanimity. These findings can probably be explained by the fact that the term ‘exchanges’ and the verb ‘to exchange’ can be defined in various ways. The Dictionnaire de droit international public, edited by Jean Salmon, thus defines the term ‘exchanges’ as follows: A. Remise réciproque de biens, de documents ou de personnes. Exemple: échange de territoires, de prisonniers, de ratifications, etc. B. Fait de s'exprimer tour à tour oralement ou par écrit. Exemple: échange de consentement, échange de lettres. 161 Thus, meaning A of the term ‘exchange’ would be devoted to the theory of reception of acceptance, whereas meaning B would support the theory of emission of acceptance. The Oxford English Reference Dictionary defines the term ‘exchange’ as follows: 1. The act or an instance of giving one thing and receiving another in its place. … 7a. A short conversation, esp. a disagreement or quarrel. b. A sequence of letters between correspondents.162 Adoption of the first meaning implies the adoption of the theory of reception, while the theory of forwarding results from the adoption of the second meaning. 70. Taking stock of these developments, we are of the opinion that the following conclusions can be formulated. First, States themselves can freely set the time of the conclusion of the treaty. Nothing prevents them from settling this question as they wish, considering the dispositive character of the law governing this issue. Next, it emerges from Article 13, interpreted in good faith in accordance with the ordinary meaning to be given to the terms in their context and in the light of its object and purpose, that the theory of forwarding as well as that of reception can, as a suppletory rule, be defended a priori. However, the theories of emission and of effective awareness of the acceptance must be rejected. On the one hand, the theory of emission of acceptance (date of the last instrument) must, in our opinion, be rejected for the simple reason that a written note or letter—formulating an acceptance of an offer—can only be sent after a certain time. If the sending of the acceptance did not take place, no exchange can take place. Coexistence (p. 277) of expressed and declared wills certainly exists, but no conjunction or union of wills. Consequently, no treaty could be concluded. It should,

however, be noted that publication in the United Nations Treaty Series of treaties concluded by exchange of instruments indicates as date and place of conclusion lato sensu the dates and places indicated in the instruments (offers and acceptance) and, by deduction, as the date of conclusion stricto sensu the date of the last instrument constituting acceptance.163 On the other hand, we believe that the theory of awareness of acceptance also cannot be retained, due to the fact that reading of an exchanged note or letter—formulating an acceptance of offer —can take place a certain time after the exchange itself. In other words, the exchange having already taken place, the treaty was already concluded. The late reading of exchanged instruments constituting a treaty is not, in this respect, a decisive criterion. Let us now determine why the theory of forwarding of acceptance (dispatch date of the last of the instruments constituting a treaty) as well as the theory of reception of acceptance (date of reception of the last of the instruments constituting a treaty) can be defended a priori. Let us recall that the date of dispatch and reception may coincide in the assumption of a delivery of a note expressing acceptance. This will generally be the case when the exchange of notes or letters takes place between the head of the diplomatic mission and the minister for foreign affairs during a ceremony or a meeting at the Ministry of Foreign Affairs. In this case, the two theories lead to the same conclusion. However, insofar as instruments exchanged by post are concerned, the question takes on its full importance in that the forwarding of mail can take several days, even several weeks.164 The reason why the two theories can be defended can be summarized as follows. For the State of despatch of the instrument expressing acceptance, the exchange will be, in its opinion, already carried out by the sending of the aforesaid instrument, insofar as the expression of its acceptance is final at this time, except intercepting the sending of the mail in extremis. Thus, for the State of despatch, the theory of despatch will determine the exact date of conclusion. On the other hand, for the recipient State of the instrument expressing acceptance, the exchange will only, in its opinion, be carried out at the time of reception of acceptance of its offer. Thus, for the recipient State, the theory of reception will determine the exact date of conclusion. 71. Consequently, the question arises of determining which theory was considered by the UN Conference on the Law of Treaties. We are of opinion that, by analogy with Article 16 juncto Article 73 of the Vienna Convention, the theory of reception of acceptance can probably be regarded as having been implicitly retained at the Vienna Conference.165 Indeed, the purpose of Article 16 is to determine the exact time of establishment of consent (p. 278) of a State to be bound by a treaty through instruments of ratification, acceptance, approval, or accession. In this respect, it provides, as a suppletory rule, that the aforementioned consent is established at the time either of the exchange of the aforesaid instruments between the contracting States, either of their deposit with the depositary, or of their notification to the contracting States or to the depositary, if so agreed. The ILC comments on this Article by specifying that ‘in the case of exchange of instruments there is no problem; it is the moment of exchange’.166 The exact moment of exchange remains thus unspecified. However, the Commission determines by analogy the exact moment of the exchange of instruments in its commentary relating to the procedure of notification. Indeed, it specifies initially that the procedure of notification of instruments either to the contracting States or to the depositary is equivalent, in the first case, with a simplified form of exchange of instruments and, in the second case, with a simplified form of deposit of instruments.167 The Commission concludes its commentary by determining the exact date of establishment of consent to be bound by a treaty through instruments of ratification, acceptance, approval, or accession in the case of the procedure of notification as follows: If the procedure agreed upon is notification to the contracting States,…the consent of the notifying State to be bound by the treaty vis-a-vis another contracting State will be established only upon its receipt by the latter. On the other hand, if the procedure agreed upon is notification to the depositary, the same considerations apply as in the case of the deposit of an instrument; in other words, the consent will be established on receipt of the notification by the depositary.168 Ultimately, Article 16 of the Convention retains, as a suppletory rule, the theory of reception of the instrument of ratification, acceptance, approval, or accession for purposes of determining the exact moment of establishment of the consent of the State to be bound by a treaty by ratification, acceptance, approval, or accession. In addition, the Vienna Conference retained the theory of reception, as a suppletory rule, for all notifications and communications to be made by any State under the Vienna Convention (Art. 78). 72. In conclusion, the theory of reception of the instrument—as applied to the four means of consent to be bound by a treaty: ratification, acceptance, approval, and accession—could apply per analogiam to treaties concluded by exchange of instruments within the framework of Article 13 of the Convention. No compelling reason exists, indeed, to determine in another way the moment of establishment of the expression of consent to be bound by exchange of instruments constituting the treaty. In addition, Article 78 confirms the theory of reception should the exchange take place by notification of the instruments. Consequently, the act of exchange of instruments constituting a treaty that expresses the consent of States to be bound by a treaty, unless a contrary intention appears, will be carried out at the time of the date of reception of the last of the instruments constituting a treaty. It is on the date of reception of the last of the instruments constituting the treaty that this treaty will be concluded. This conclusion (p. 279) was confirmed to the present author by the treaty sections of various ministries of foreign affairs.

Date of entry into force 73. It must be reiterated that the conclusion of a treaty and its entry into force cover two distinct legal operations, even if they may coincide. If, taking Article 13 of the Vienna

Convention into consideration, the conclusion stricto sensu of a treaty results from the conjunction of two or several consents to be bound by the treaty through the exchange of instruments, only the entry into force produces, in principle, the full juridical effects of the treaty in question. 74. In accordance with Article 24(1) and (2) of the Vienna Convention, a treaty concluded by exchange of instruments enters into force in such manner and upon such date as it may provide or as the negotiating States may agree.169 In theory, the methods and the date of entry into force are proposed in the offer and are confirmed on acceptance. In the absence of such provisions or of such an agreement, a treaty concluded by exchange of instruments enters into force on the date of the exchange.170 75. It emerges from an examination of diplomatic practice that a treaty concluded by exchange of notes or letters usually contains provisions relating to its entry into force.171 Thus, the treaty can, for example, provide that it enters into force on the date of the confirmative note,172 on the date of reception of the confirmative note, or 15 days after the date of reception of the confirmative note.173 The treaty can enter into force in the future or produce its effects retroactively174 or on a certain175 or uncertain176 future date. (p. 280) 76. In conclusion, unless otherwise specified, a treaty concluded by exchange of instruments thus enters into force on the date of exchange of the instruments.

Bilateral or multilateral treaty 77. The exchange of the instruments constituting a treaty normally fits into a bilateral relation between two subjects of international law, exceptionally in a multilateral relation between several subjects.177 Theoretically, the exchange of instruments within a bilateral relation leads to the conclusion of a bilateral treaty, except in the case when one of the parties acts in its own name as well as on behalf of another party.178 The exchange of instruments within a multilateral relationship leads to the conclusion either of a multilateral agreement (States A, B, C, and D) or a bilateral agreement179 (State A on the one hand, and States B, C, and D on the other hand), as the case may be.180 On this subject, Anthony Aust notes that: A treaty which is part bilateral and part multilateral can be constituted by a series of parallel exchanges of notes, all identical in substance, between one state and a number of states (A–B; A–C; A–D, etc.). In such a case, it is important to make clear in the notes who are the parties. In an exchange between, say, four states there could be four parties (A, B, C and D), or two (A and B+C+D). When there are only two parties it may also be necessary to make clear whether the treaty can be terminated only by one of the parties, or whether one of the states constituting the (collective) party can, by withdrawing from the treaty, bring about its termination.181 In this respect, the Special Rapporteur on the law of treaties concluded between States and international organizations or between two or more international organizations, Paul Reuter, made it clear that ‘in the unlikely event that a tripartite agreement should be concluded by an exchange of letters, such exchange would in effect establish three sets of bilateral relations’.182 Likewise, Sir Francis Vallat, intervening during the 17th session of the ILC, pointed out that: (p. 281) Until the middle of the nineteenth century, agreements between three or more States were concluded by means of bilateral exchanges of instruments. That was a very cumbersome procedure…Mathematically, the number of instruments to be prepared for ‘n’ contracting parties would be n(n–1). Thus if there were three contracting parties, six instruments would be needed, but if the nine States members of the European Community concluded an agreement with the Community itself, under the bilateral exchange procedure, ninety instruments would be needed.183

References 78. It should, in addition, be noted that a bilateral treaty can also be concluded by a double exchange of instruments sent to a third party. Such was the case of the double exchange of letters between Qatar and Saudi Arabia, on the one hand, and Bahrain and Saudi Arabia, on the other hand, in which the ICJ had to examine the legal consequences in the case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain.184 In the context of a mediation, sometimes referred to as ‘good offices’, the King of Saudi Arabia then sent the Amirs of Qatar and Bahrain letters in identical terms dated 19 December 1987, in which he put forward new proposals [relating to certain means of dispute settlement]. Those proposals were accepted by letters from the two Heads of State, dated respectively 21 and 26 December 1987.185 As Anthony Aust mentions: This complicated scheme was necessary because of political sensitivities, but the text of each letter and of the announcement had been agreed in advance with Saudi Arabia by Qatar and Bahrain; and thus, although three states were involved, there were in fact only two parties, Qatar and Bahrain.186 As said previously, the Court noted that ‘[t]he Parties agree that the exchanges of letters of December 1987 constitute an international agreement with binding force in their mutual relations’187 and concluded that the exchanges of letters of December 1987 constitute ‘an international agreement creating rights and obligations for the Parties’.188

References

C. Problems of validity 79. On the one hand, some authors have supported the thesis according to which the expression ‘agreements in simplified form’ refers to agreements concluded by organs constitutionally incompetent to engage the State.189 Certain authors have even alleged that (p. 282) agreements in simplified form are not treaties in a strict sense, but international agreements other than treaties.190 80. On the other hand, certain Latin-American States, such as Costa Rica, Guatemala, and Peru, expressed reservations with regard to Article 11 of the 1969 Vienna Convention.191 From the contents of the aforesaid reservations it emerges that these States indirectly expressed a reservation with regard to Article 13 of the Vienna Convention. Thus Costa Rica made the following reservation with regard to Article 11: The delegation of Costa Rica wishes to make a reservation to the effect that the Costa Rican system of constitutional law does not authorize any form of consent which is not subject to ratification by the Legislative Assembly.192 Guatemala, during the signing of the Vienna Convention, expressed three reservations, the second of which is drawn up as follows: II. Guatemala will not apply articles 11, 12, 25 and 66 in so far as they are contrary to the provisions of the Constitution of the Republic. Upon ratification of the Convention on the Law of Treaties, Guatemala stated that: With respect to reservation II, which was formulated [upon signature] and which indicated that the Republic of Guatemala would not apply articles 11, 12, 25 and 66 of the [said Convention] insofar as they were contrary to the Constitution, Guatemala states:…(ii) That it also confirms the reservation with respect to the non-application of articles 11 and 12 of the Convention. Guatemala's consent to be bound by a treaty is subject to compliance with the requirements and procedures established in its Political Constitution.… On 15 March 2007, however, the government of Guatemala informed the Secretary-General that it had decided to: Withdraw in their entirety the reservations formulated by the Republic of Guatemala on 23 May 1969 and confirmed upon 14 May 1997 to Articles 11 and 12 of the Vienna Convention on the Law of Treaties. Finally, for the government of Peru: …the application of articles 11, 12 and 25 of the Convention must be understood in accordance with, and subject to, the process of treaty signature, approval, ratification, accession and entry into force stipulated by its constitutional provisions.193 Other States, such as Austria, Belgium, Denmark, Finland, Germany, the Netherlands, and Sweden, formulated objections to such reservations for the reason that the means of expressing consent to be bound formulated in Article 11 of the Vienna Convention were firmly anchored in customary international law and reflected universally accepted legal norms. Consequently, these States deemed such reservations to be incompatible with the (p. 283) object and purpose of the Vienna Convention. However, it should be noted that these objections do not prevent the Vienna Convention from entering into force between the States having formulated objections, on the one hand, and the States authors of the reservations, on the other hand. 81. There arises, then, the problem of the validity of treaties concluded in accordance with Article 13 of the Vienna Convention in the international legal order as well as in the domestic legal order of the States.194

International validity 82. The international validity of treaties concluded by exchange of instruments constituting a treaty is undisputed. As already mentioned, Article 13 of the Vienna Convention restates a rule of customary international law. Indeed, international treaty law put several means at the disposal of States by which they can express their consent to be bound by a treaty.195 Article 13 formulates one of these means, namely the expression, by an exchange of instruments constituting a treaty, of consent to be bound by a treaty. 83. As previously noted,196 it arises, moreover, from the contemporary diplomatic practice that States conclude treaties, today more than ever, in simplified form.197 The undeniable success of this method of conclusion is explained by its simplicity, promptness, flexibility, and effectiveness. As soon as the instruments are exchanged, the treaty is concluded. 84. In conclusion, subject to the grounds of invalidity listed in the Vienna Convention, the international validity of treaties concluded by an exchange of instruments is firmly established in international law. Article 13 codifies, in this respect, a rule of customary international law.198

Internal validity

85. International law, in theory, refers to the internal law of each State, to determine the State organs vested with treaty-making power, ie these organs having competence to conclude treaties. Two particular hypotheses must hold our attention here. 86. The first hypothesis covers situations where the competence to conclude treaties or, at the very least, certain categories of treaties, is, according to the constitutional law of a State,199 shared between the executive power and the legislative power of that State. In this case, the executive will be unable to conclude without prior legislative authorization (p. 284) for that purpose.200 In other words, two State organs are vested with treaty-making power, the intervention of the legislative organ being a prerequisite to any final consent of the State expressed by the executive in the treaty-concluding procedure. Consequently, for this purpose, in order to be able to conclude a treaty by an exchange of instruments, the executive will have to be duly authorized by the legislative organ. In the absence of such authorization, the treaty concluded by the executive will be tainted with a defect in constitutionality and could be declared invalid in the internal legal order, although Article 27 of the Vienna Convention in theory prohibits States from invoking on the international plane such a declaration of invalidity of a treaty with regard to their internal law.201 The international validity of the treaty in question could also be challenged. Indeed, under Article 46 of the Vienna Convention, the fact that the consent of a State to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties, can be invoked by that State as invalidating its consent to the double restrictive condition that this violation was manifest and concerns a rule of its internal law of fundamental importance.202 In this regard, the ICJ ‘notes that there is no general legal obligation for States to keep themselves informed of legislative and constitutional developments in other States which are or may become important for the international relations of these States’.203 87. The second hypothesis covers cases where, although only the executive is vested with the competence to conclude treaties, the production of effects of treaties in the internal legal order is subject to a law of consent or approval, thus admitting its reception in the domestic legal order.204 In this case, the default of consent or approval does not affect the international validity of a treaty,205 but ‘only’ its reception in the internal legal order.206 In the absence of such legislative approval, the treaty concluded by the executive will be, although valid on the international plane, inapplicable on the internal plane. In this respect, it should be noted that the inapplicability of a treaty concluded and entered into force on the international plane can engage the international responsibility of the (p. 285) State in question.207 Thus, insofar as the treaty must produce its effects in the internal legal order,208 the executive will take care not to conclude a treaty by an exchange of instruments whenever the reception of the treaty in question is submitted to parliamentary approval. In this case, the negotiating executive will affix, for example, a signature subject to ratification, acceptance, or approval or shall exchange the instruments constituting a treaty subject to ratification, acceptance, or approval,209 or shall successfully negotiate a final clause known as ‘notification of the fulfilment of the internal legal requirements’.

References 88. Ultimately, the fact that Article 13 makes it possible to conclude by an exchange of instruments constituting a treaty does not exempt the negotiators from respecting the constitutional provisions or practices governing the internal aspects of the procedure for the conclusion of treaties.210 In any event, although treaty law allows States to conclude in simplified form, the executive willing to conclude a treaty by an exchange of instruments constituting a treaty, shall, at any time, be bound to respect the requirements and practices of its constitutional law pertaining to the internal aspects of the procedure of concluding treaties.211 Thus, when it results from constitutional law that the head of the State, a minister, a head of a mission, or a permanent representative cannot, on behalf of the State, express the final consent of that State to be bound by the treaty, it will not conclude in simplified form but in solemn form.212 It remains, however, that Article 13 of the Vienna Convention constitutes a rule of international law which grants States the faculty to conclude by an exchange of instruments constituting a treaty. However, Article 13 does not oblige States to conclude in such a way. In other words, Article 13 contains a permissive norm, authorizing a conduct and not a prescriptive norm, requiring a given conduct.213 In this respect the ICJ recalled that ‘both customary international law and the Vienna Convention on the Law of Treaties leave it completely up to States as to which procedure they want to follow’.214 *

CÉDRIC VAN ASSCHE

References

Footnotes: 1 Under the Vienna Convention, the term ‘treaty’ is defined by Art. 2(1)(a) as ‘an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation’. See in this respect, paras 2 and 3 of the final commentary of draft Art. 2(1)(a) adopted by the ILC during its 18th session, Report of the ILC to the General Assembly (A/6309/Rev.1), YILC, 1966, vol. II, p 188. 2 A. Aust, Modern Treaty Law and Practice (2nd edn, Cambridge: Cambridge University Press, 2007), pp 445–6; C. Chayet, ‘Les accords en forme simplifiée’, AFDI, 1957, p 8; F. S. Hamzeh, ‘Agreements in Simplified Form—Modern Perspective’, BYBIL, 1968–69, pp 181–2; J. Masquelin, Le droit des traités dans l'ordre juridique et dans la pratique diplomatique belge

(Brussels: Bruylant, 1980), pp 300–3, paras 241–3; H. Neuhold, ‘Organs Competent to Conclude Treaties for International Organizations and the Internal Procedure Leading to the Decision to Be Bound by a Treaty. Negotiation and Conclusion of Treaties by International Organizations’, ÖZöRV, 1971, Suppl. 1, p 231; J. L. Weinstein, ‘Exchanges of Notes’, BYBIL, 1952, p 205. 3 A. Aust, supra n 2, p 102; J. Basdevant, ‘La conclusion et la rédaction des traités et des instruments diplomatiques autres que les traités’, RCADI, 1926-V, vol. 15, pp 609–10; C. Chayet, supra n 2, pp 5–6; R. Jongbloet-Hamerlijnck, Het aanwenden van de ratificatie in het volkenrecht. Ontwikkeling en hedendaagse praktijk (Brussels: Elsevier-Sequoia, 1972), p 217; Sir Ernest Satow, Satow's Guide to Diplomatic Practice (5th edn, London: Longman, 1979), p 247, para. 29.34; H. H. M. Sondaal, De Nederlandse Verdragspraktijk (‘s-Gravenhage: TMC Asser Instituut, 1986), p 49. See also the intervention of Mr Yasseen, chairman of the Drafting Committee (in United Nations Conference on the Law of Treaties, 1st session, Official Documents, Summary Records, p 345, para. 76) and the intervention of Mr Nahlik (Poland) (in 2nd session, Official Documents, Summary Records, p 24, para. 65). 4 Concerning authorization as regards conclusion of treaties and the notion of full powers in particular, see supra the commentary on Art. 7 of the Vienna Convention in this work as well as Hans Blix, Treaty-Making Power (London: Stevens & Sons; New York: Frederick A. Praeger, 1960), p 414. With regard to the question of the excess of powers committed by a representative of State in the procedure of concluding a treaty, see infra the commentary on Art. 46 of the Vienna Convention. This may be referred to as the issue of ‘imperfect exchange’ (by analogy with the question of the imperfect ratifications). 5 J. Basdevant, ‘La conclusion et la rédaction des traités et des instruments diplomatiques autres que les traités’, supra n 3, pp 615–16; F. S. Hamzeh, supra n 2, p 188; R. JongbloetHamerlijnck, supra n 3, p 217; M. Lueke and Ch. Wickremasinghe, ‘Analytical Report’ in Council of Europe and the British Institute of International and Comparative Law (ed.), Treaty Making—Expression of Consent by States to be Bound by a Treaty. Conclusion des traités— Expression par les Etats du consentement à être liés par un traité (The Hague: Kluwer Law International, 2001), p 10; J. Salmon (ed.), Dictionnaire de droit international public (Brussels: Bruylant, 2001), see ‘Échange de lettres, de notes’, sense B, p 408; Sir Ernest Satow, supra n 3, p 247, para. 29.34; J. L. Weinstein, supra n 2, p 206. 6 C. Chayet, supra n 2, pp 6–7. See also Sir R. Jennings and Sir A. Watts, Oppenheim's International Law, vol. 1, part 4 (9th edn, Harlow: Longman, 1996), p 1210, para. 586, fn 9; Sir Ernest Satow, supra n 3, p 247, para. 29.34; P.-F. Smets, La conclusion d'accords en forme simplifiée. Etude de droit international et de droit belge et comparé (Brussels: Bruylant, 1969), p 19. 7 H. Neuhold, supra n 2, p 231. 8 Ibid, p 231 and fn 132 (quoting various examples). For other examples, see the Agreement between the Kingdom of Belgium and the United Nations definitively settling the financial questions outstanding as regards the former Belgian military bases in the Congo and the Agreement between the Kingdom of Belgium and the United Nations relating to the settlement of claims filed against the United Nations in the Congo by Belgian nationals, concluded by exchanges of letters in New York, 20 February 1965. For the text of these agreements, see 535 UNTS 191–203. 9 J. Basdevant, ‘La conclusion et la rédaction des traités et des instruments diplomatiques autres que les traités’, supra n 3, pp 609–10 and 615; J. Salmon (ed.), Dictionnaire, supra n 5, see ‘Échange de lettres, de notes’, sense A, p 408; Sir Ernest Satow, supra n 3, p 247, para. 29.34; J. Wilmanns, ‘Note’ in R. Bernhardt (ed.), Encyclopedia of Public International Law, vol. III (Amsterdam: Elsevier, 1997), p 695. 10 C. Chayet, supra n 2, p 7 and H. Neuhold, supra n 2, p 250. 11 J. Masquelin, supra n 2, p 302, para. 242. 12 Hanspeter Neuhold defines the technique of the so-called letter agreement as such: ‘It consists of a letter in duplicate sent to the party with whom the agreement is to be concluded. The latter is requested to sign the copies and return one of them to the party making the offer’ (H. Neuhold, supra n 2, p 231). 13 Hanspeter Neuhold states in this respect: A third category of agreements is characterized by even less formality and usually by the different character of the offer and the acceptance constituting the agreement. The term ‘disjunctive exchanges of notes’ has been used to describe them. As regards agreements belonging to this type, the offer or proposal of one party contains no express reference to the conclusion of an agreement. The same is true of the more or less formal act by which the other party accepts the proposal. In fact, acceptance by conduct in conformity with the offer or proposal suffices in some cases (H. Neuhold, supra n 2, p 232, citing various examples). 14 For solo consensus agreements, see J. Salmon, ‘Les accords non formalisés ou solo consensu’, AFDI, 1999, pp 1–28. 15 F. S. Hamzeh, supra n 2, p 183. 16 A. Cassese, International Law (2nd edn, Oxford: Oxford University Press, 2005), p 172; C. Chayet, supra n 2, p 7; Sir R. Jennings and Sir A. Watts, supra n 6, p 1210, para. 586; R. Jongbloet-Hamerlijnck, supra n 3, pp 224–5; Ch. Rousseau, Droit international public, vol. I (Paris: Sirey, 1970), p 72, para. 47; Sir Ernest Satow, supra n 3, p 247, para. 29.35; J. L. Weinstein, supra n 2, p 214.

17 Contra: J. Salmon (ed.), Dictionnaire, supra n 5, see ‘Procédure courte’, p 888 who restricts the expression ‘short procedure’ to treaties concluded by definitive signature. 18 Treaties in simplified form are to be divided into two categories, namely the category of treaties concluded by signature (Art. 12 of the Vienna Convention) and the category of treaties concluded by exchange of instruments (Art. 13 of the Vienna Convention). With regard to Art. 12, see supra the commentary in this work. For treaties in simplified form in general, see, besides the introductory bibliography, the bibliography mentionned supra at Art. 12, para. 2, note 4. For various possible definitions of ‘treaties in simplified form’, see L. Wildhaber, ‘Executive Agreements’ in R. Bernhardt (ed.), Encyclopedia of Public International Law, vol. II (Amsterdam: Elsevier, 1999), pp 313–16. 19 ‘Treaties in simplified form’ is the expression used by the ILC during the codification work on the law of treaties. See for instance draft Art. 1(d), draft Art. 4(4)(b) and draft Art. 12(2)(d), and their commentary, provisionally adopted by the ILC at its 14th session, Report of the ILC to the General Assembly (A/5209), YILC, 1962, vol. II, pp 161, 165, and 71. See also paras 3 and 8 of the final commentary relating to draft Art. 1 adopted by the ILC at its 18th session, Report of the ILC to the General Assembly (A/6309/Rev.1), YILC, 1966, vol. II, pp 188–9, paras 3 and 8. See also, on the one hand, I. Brownlie, Principles of Public International Law (7th edn, Oxford: Oxford University Press, 2008), p 611 and A. Cassese, supra n 16, p 172 (using the expression ‘treaties in simplified form’) and, on the other hand, Sir R. Jennings and Sir A. Watts, supra n 6, p 1207, para. 585, fn 5 (using the expression ‘agreements in simplified form’). Moreover, Special Rapporteur Sir Humphrey Waldock used in its First Report on the Law of Treaties (A/CN.4/144) the expression ‘accords en forme simplifiée—to use the apt French term’ (YILC, 1962, vol. II, p 33, para. 8). Finally, it should be noted that executive agreements are a feature of US constitutional practice. See, in this respect, L. Wildhaber, ‘Executive Agreements’ in supra n 18, p 316. 20 See para. 3 of the final commentary of draft Art. 2 adopted by the ILC during its 18th session, Report of the ILC to the General Assembly (A/6309/Rev.1), YILC, 1966, vol. II, p 188 and fn 38. See also J. Dehaussy, ‘Le problème de la classification des traités et le projet de convention établi par la Commission du droit international des Nations Unies’ in Recueil d'études de droit international en hommage à Paul Guggenheim (Geneva: Institut Universitaire de Hautes Études Internationales, 1968), p 321; T. O. Elias, The Modern Law of Treaties (New York: Oceana; Leiden: A. W. Sijthoff, 1974), p 13; G. Fitzmaurice, ‘Do Treaties Need Ratification’, BYBIL, 1934, p 127; P.-M. Martin, Droit international public (Paris, Milan, Barcelona: Masson, 1995), p 127, para. 249; Nguyen Quoc Dinh, P. Daillier, M. Forteau, and A. Pellet, Droit international public (8th edn, Paris: LGDJ, 2009), p 160, para. 84; J. Salmon, Droit des gens, vol. 1 (13th edn, Brussels: Presses Universitaires de Bruxelles, 1995–96), pp 64–5; J. L. Weinstein, supra n 2, p 226. 21 C. Chayet, supra n 2, pp 5–6; J. P. Grant and J. Craig Barker, Parry & Grant Encyclopaedic Dictionary of International Law (3rd edn, Oxford: Oxford University Press, 2009), p 202, see ‘Exchange of notes’; F. S. Hamzeh, supra n 2, p 181; R. Jongbloet-Hamerlijnck, supra n 3, p 217; Sir Ernest Satow, supra n 3, p 247, para. 29.34 and p 248, para. 29.37. See also R. D. Kearney and R. E. Dalton, ‘The Treaty on Treaties’, AJIL, 1970, p 508; H. H. M. Sondaal, supra n 3, p 49. 22 Treaties in simplified form have, in fact, their origin in the US constitutional practice of ‘executive agreements’, developed since the late eighteenth century, most of which are concluded by exchange of notes. See G. Fitzmaurice, supra n 20, p 128, fn 1. For the origin of treaties in simplified form, see supra para. 6 of the commentary on Art. 12 in this work. Rita Jongbloet-Hamerlijnck reports that the exchange of Maratha and Portugese documents dated 4 May 1779 and 17 December 1779 as well as the exchange of correspondance between Catherine II of Russia and Joseph II of Austria dated 12 April and 18 May 1781 would be the two most ancient treaties in simplified form concluded by exchange of instruments (R. Jongbloet-Hamerlijnck, supra n 3, p 231). With regard to the first example, see also the Dissenting Opinion of Judge Moreno Quintana, in the Right of passage over Indian territory case, ICJ Reports 1960, pp 91–2. 23 Sir Ernest Satow, supra n 3, p 248, para. 29.37; J. L. Weinstein, supra n 2, pp 213–14. See also A. Aust, supra n 2, p 102 and F. S. Hamzeh, supra n 2, pp 182–3. For the different statistics in this regard, see inter alia S. Bastid, ‘Enquêtes sur les traités. Résultats d'une enquête sur les conditions de conclusion des traités et sur les clauses relatives au règlement des différends’, AFDI, 1967, pp 544–6 (stating that more than 50 per cent of the treaties under review entered into force by signature. However, this study curiously enough does not mention the category of treaties concluded by exchange of instruments so much so that the percentage of 50 per cent should probably comprise both categories of treaties in simplified form); D. J. Bederman, International Law Frameworks (New York: Foundation Press, 2001), p 166; H. Blix, ‘The Requirement of Ratification’, BYBIL, 1953, pp 359–60; C. Chayet, supra n 2, pp 4–7 and 10; J. Dehaussy, ‘Les traités. Conclusion et conditions de validité formelle’ in B. Goldman, Ph. Kahn, and L. Vogel (eds), Juris-classeur de droit international, vol. 1 (Paris: Juris-classeur, Sources du droit international, Fasc. 11, 1958), p 27, para. 49; P.-M. Dupuy, Droit international public (5th edn, Paris: Dalloz, 2000), p 256, para. 252, fn 1; M. Frankowska, ‘De la prétendue présomption en faveur de la ratification’, RGDIP, 1969, pp 77–9; Ph. Gautier, Essai sur la définition des traités entre Etats. La pratique de la Belgique aux confins du droit des traités (Brussels: Bruylant, 1993), pp 150–2; F. S. Hamzeh, supra n 2, pp 182–3; Nguyen Quoc Dinh, A. Pellet, and P. Daillier, Droit international public (7th edn, Paris: LGDJ, 2002), p 144, para. 83 (more than 60 per cent of all treaties concluded by France and the US would be in simplified form); P. Reuter, Introduction au droit des traités (3rd edn, revised by Ph. Cahier, Paris: PUF, 1995), p 79, para. 101*; C. Roche and A. Potot-Nicol, L'essentiel du Droit international et du droit des relations internationales (Paris: Gualino éditeur, Coll. les Carrés,

1999), p 16 (treaties in simplified form would represent more than 60 per cent of all treaties concluded); G. Schwarzenberger, International Law, vol. 1, International Law as Applied by International Courts and Tribunals (3rd edn, London: Stevens & Sons, 1957), p 432; J. L. Weinstein, supra n 2, pp 224–5 (more than 85 per cent of all treaties concluded by the UK would be in simplified form); L. Wildhaber, ‘Executive Agreements’ in supra n 18, pp 313 and 317. See also the First Report (A/CN.4/63) of Sir Hersch Lauterpacht dated 24 March 1953, YILC, 1953, vol. II, p 114, fn 39 and his Second Report (A/CN.4/87*) dated 8 July 1954, YILC, 1954, vol. II, pp 127–8, para. 2. See finally para. 3 of the final commentary relating to draft Art. 2(1)(a) adopted by the ILC during its 18th session, Report of the ILC to the General Assembly (A/6309/Rev.1), YILC, 1966, vol. II, p 188. 24 C. Chayet, supra n 2, p 5; F. S. Hamzeh, supra n 2, p 182, fn 3 and pp 185–6; R. JongbloetHamerlijnck, supra n 3, p 233, fn 203. 25 F. S. Hamzeh, supra n 2, p 186. 26 For various examples of final clauses, see infra para. 39. 27 See L. Cavaré, Le droit international public positif, vol. II, Les modalités des relations juridiques internationales. Les compétences respectives des États (2nd edn, Paris: Pedone, 1962), pp 92–3; J. Dehaussy, ‘Les traités. Conclusion et conditions de validité formelle’ in supra n 23, pp 26–7, para. 48; G. Fitzmaurice, supra n 20, p 128; F. S. Hamzeh, supra n 2, p 183; R. Jongbloet-Hamerlijnck, supra n 3, pp 223–4; H. Neuhold, supra n 2, pp 228 and 231; Nguyen Quoc Dinh, P. Daillier, M. Forteau, and A. Pellet, supra n 20, p 160, para. 84; Ch. Rousseau, supra n 16, vol. I, pp 71–3, para. 47; Sir Ernest Satow, supra n 3, p 247, para. 29.35; P.-F. Smets, supra n 6, pp 27 ff; J. L. Weinstein, supra n 2, pp 211–13. 28 F. S. Hamzeh, supra n 2, p 183; R. Jongbloet-Hamerlijnck, supra n 3, pp 218–24; Sir Ernest Satow, supra n 3, p 247, para. 29.35; J. L. Weinstein, supra n 2, pp 211–13 and the numerous references quoted therein. 29 J. Dehaussy, ‘Les traités. Conclusion et conditions de validité formelle’ in supra n 23, p 26, para. 48. In this respect, Charles Rousseau specifies that ‘il n'existe aucune hiérarchie d'objet entre les traités et les accords en forme simplifiée’ (Ch. Rousseau, supra n 16, vol. I, p 71, para. 47). 30 United Nations Conference on the Law of Treaties, 1st session, Official Documents, Summary Records, p 93, para. 64. 31 Ibid, p 93, para. 65. 32 United Nations Conference on the Law of Treaties, 2nd session, Official Documents, Summary Records, p 24, para. 62. 33 United Nations Conference on the Law of Treaties, 1st session, Official Documents, Summary Records, p 94, para. 1. 34 Ibid, p 345, para. 81. 35 Ibid, p 93, para. 66. 36 Ibid, p 86, para. 12. 37 Ibid, p 94, para. 3. It is to be noted that the Swiss delegate improperly qualified the Polish proposal as an amendment. With regard to the distinction between a motion, a proposal, and an amendment, on the one hand, and their legal consequences, on the other hand, see R. Sabel, Procedure at International Conferences. A study of the rules of procedure of conferences and assemblies of international inter-governmental conferences (2nd edn, Cambridge: Cambridge University Press, 2006), pp 145–76, 201–19, and 263–84. For the Rules of procedure of the United Nations Conference on the Law of Treaties, as adopted by that Conference at its 1st plenary meeting, see United Nations Conference on the Law of Treaties, 1st session, Official Documents, Summary Records, pp xxvi–xxx. 38 United Nations Conference on the Law of Treaties, 2nd session, Official Documents, Summary Records, p 26, para. 2. 39 United Nations Conference on the Law of Treaties, 1st session, Official Documents, Summary Records, p 94, para. 5. 40 This text was drawn up as follows:

Art. 10 bis. The consent of States to be bound by a treaty constituted by instruments exchanged between them is expressed by that exchange when: (a) the instruments provide that their exchange shall have that effect; (b) it is otherwise established that those States were agreed that the exchange of instruments should have that effect (ibid, p 345, para. 75). 41 Ibid, p 347, para. 105. 42 United Nations Conference on the Law of Treaties, 2nd session, Official Documents, Summary Records, p 26. 43 British possessions in Spanish Morocco, arbitral award of 1 May 1925, RIAA, vol. II, p 724. 44 Ibid, p 725. 45 Customs Régime between Germany and Austria (Protocol of March 19th, 1931), Advisory Opinion of 5 September 1931, PCIJ, Series A/B, no.41, p 47, emphasis added. 46 It is to be noted that the parties in dispute, namely Qatar and Bahrain, were not parties to the 1969 Vienna Convention on the Law of Treaties.

47 Maritime Delimitation and Territorial Questions between Qatar and Bahrain case, Jurisdiction and Admissibility, Judgment of 1 July 1994, ICJ Reports 1994, p 120, para. 22. 48 Ibid, p 122, para. 30. On this subject, see also A. Aust, supra n 2, pp 51–2 and S. Rosenne, ‘The Qatar/Bahrain Case. What is a Treaty? A Framework Agreement and the Seising of the Court’, LJIL, 1995, pp 165–6. 49 J. L. Weinstein, supra n 2, pp 215–23. See also F. S. Hamzeh, supra n 2, p 185 and R. Jongbloet-Hamerlijnck, supra n 3, p 229, fn 188. 50 A. Aust, supra n 2, p 102; I. Brownlie, supra n 19, p 611; J. Combacau and S. Sur, Droit international public (7th edn, Paris: Montchrestien, 2006), p 121; Sir R. Jennings and Sir A. Watts, supra n 6, p 1226, para. 601 (cf however p 1210, para. 586); Ph. Manin, Droit international public (Paris: Masson, Coll. Droit-Sciences Economiques, 1979), pp 85 and 88; P. Reuter, La Convention de Vienne du 29 mai 1969 sur le droit des traités (Paris: Armand Colin, 1970), p 7; P. Reuter, Introduction au droit des traités, supra n 23, pp 57–8, para. 101; G. Schwarzenberger, supra n 23, p 432; M. N. Shaw, International Law (5th edn, Cambridge: Cambridge University Press, 2003), pp 818–19; J. L. Weinstein, supra n 2, pp 205–26. 51 A. Bolintineanu, ‘Expression of Consent to Be Bound by a Treaty in the Light of the 1969 Vienna Convention’, AJIL, 1974, p 684. For the question of the methods of proof of the consent, see infra paras 42–64. 52 Let us recall that a conventional rule may produce different effects in relation to a customary rule, namely a effect of codifying, generating or crystallizing a custom. 53 M. Frankowska, supra n 23, p 76. See also M. E. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Leiden: Martinus Nijhoff, 2009), p 202. 54 J. Basdevant, ‘La conclusion et la rédaction des traités et des instruments diplomatiques autres que les traités’, supra n 3, p 617 juncto p 615 (cf however p 610); S. Bastid, Les traités dans la vie internationale. Conclusion et effets (Paris: Economica, 1985), p 38, para. 30 and p 46, para. 36 (implicitly); H. Blix, ‘The Requirement of Ratification’, supra n 23, p 380 (cf. p 380 where he asserts however that the exchange of notes itself establishes and proves the consensus between the parties); L. Cavaré, supra n 27, pp 92–3; C. Chayet, supra n 2, pp 4 and 7; J. Dehaussy, ‘Les traités. Conclusion et conditions de validité formelle’ in supra n 23, p 26; P.-M. Dupuy, supra n 23, pp 255–6, para. 251 (implicitly); T. O. Elias, supra n 20, p 24; P.-M. Martin, supra n 20, p 127, para. 249 (implicitly); Nguyen Quoc Dinh, P. Daillier, M. Forteau, and A. Pellet, supra n 20, pp 157–9, para. 82 juncto para. 84; Ch. Rousseau, supra n 16, vol. I, p 70, para. 46; D. Ruzié, Droit international public (16th edn, Paris: Dalloz, Coll. Mémentos, 2002), p 38; J. Salmon, Droit des gens, supra n 20, pp 65, 75, 77, and 79; J. Salmon (ed.), Dictionnaire, supra n 5, see ‘Accord en forme simplifiée’, p 15 (implicitly) and see ‘Procédure courte’, p 888; P.-F. Smets, supra n 6, pp 33–4. Cf F. S. Hamzeh, supra n 2, p 187 and Sir Ernest Satow, supra n 3, p 247, para. 29.35 (quoting the commentary of the ILC). 55 Whereas the instruments of ratification express the consent of the States to be bound by the treaty, the exchange of the instruments of ratification establishes, in principle, the consent of the State to be bound by the treaty. 56 Cf Ph. Manin, supra n 50, p 88; H. Neuhold, supra n 2, pp 229–30 and 248–52. 57 For the exchange of notes verbales and of initialled or sealed notes, see infra paras 35–6. 58 Paragraph 3 of the commentary on draft Art. 12 (Art. 14 of the Convention) provisionally adopted by the ILC during its 14th session, Report of the ILC to the General Assembly (A/5209), YILC, 1962, vol. II, p 172 and para. 3 of the final commentary of draft Art. 11 (Art. 14 of the Convention) adopted by the ILC during its 18th session, Report of the ILC to the General Assembly (A/6309/Rev.1), YILC, 1966, vol. II, p 197. 59 A. Aust, supra n 2, p 102; H. Blix, ‘The Requirement of Ratification’, supra n 23, p 358; J. L. Weinstein, supra n 2, p 205. See also the observation of Mr Nahlik (Poland) during the 9th plenary meeting (in United Nations Conference on the Law of Treaties, 2nd session, Official Documents, Summary Records, p 24, para. 62). 60 P. Reuter, Introduction au droit des traités, supra n 23, pp 51–2, paras 89–90. Lato sensu, the term ‘conclusion’ designates the whole procedure to be followed in order to be bound by the treaty, consisting of the negotiations, the adoption, and authentication of the text of the treaty, and the expression by States of their consent to be bound by the treaty. See, in this respect, J. Salmon (ed.), Dictionnaire, supra n 5, see ‘Conclusion(s)’, sense I, C, a) and b), p 225 and E. W. Vierdag, ‘The Time of “Conclusion” of a Multilateral Treaty: Art. 30 of the Vienna Convention on the Law of Treaties and Related Provisions’, BYBIL, 1988, p 83. Contra: A. Aust, supra n 2, p 92 and S. Rosenne, ‘Treaties, conclusion and entry into force’ in R. Bernhardt (ed.), Encyclopedia of Public International Law, vol. IV (Amsterdam: Elsevier, 2000), p 933. Cf H. Neuhold, supra n 2, p 195, fn 1. The determination of the exact date of conclusion is also relevant in European law. See, in this respect, P. Manzini, ‘The Priority of Pre-Existing Treaties of EC Member States within the Framework of International Law’, EJIL, 2001, pp 785–96. However, the author confuses the operations of conclusion and entry into force of a treaty. 61 J. Salmon (ed.), Dictionnaire, supra n 5, see ‘Échange de lettres, de notes’, p 408. Cf J. Basdevant (ed.), Dictionnaire de la terminologie du droit international (Paris: Sirey, 1960), see ‘Échange de lettres, de notes’, p 246. 62 In this respect, Art. 13 speaks about ‘a treaty constituted by instruments exchanged between them’. 63 J. Basdevant (ed.), Dictionnaire, supra n 61, see ‘Instrument’, p 338. 64 J. Salmon (ed.), Dictionnaire, supra n 5, see ‘Instrument’, p 588.

65 R. Jongbloet-Hamerlijnck, op cit.supra n 3, p 217 and M. E. Villiger, op cit.supra n 53, pp 199–200. 66 A. Aust, supra n 2, p 102; J. Basdevant, ‘La conclusion et la rédaction des traités et des instruments diplomatiques autres que les traités’, supra n 3, pp 609–10; C. Chayet, supra n 2, pp 5–6; Sir Ernest Satow, supra n 3, p 247, para. 29.34. 67 For an example, see J. L. Weinstein, supra n 2, p 205, fn 7. 68 Ibid, p 205, fn 8. 69 Ibid, p 215, fn 1. 70 Ibid, p 215, fn 1. See also R. Jongbloet-Hamerlijnck, supra n 3, p 225, fn 170 and Ph. Manin, supra n 50, p 84. For case law, see the judgment of the Court of Appeal of Paris, dated 24 March 1933 in the case Banque de l'Union Parisienne c Jaudon where the Court affirms that the exchange of telegrams of 28 and 29 October 1924 between the French and Soviet governments constitutes an international convention (Annual Digest and Reports of Public International Law Cases, 1933–34, vol. 7, case no. 32, pp 78–80 and critical note). 71 For an example, see J. L. Weinstein, supra n 2, p 215, fn 1. 72 Ibid. 73 United Nations Conference on the Law of Treaties, 2nd session, Official Documents, Summary Records, p 24, para. 60. 74 Ibid, p 25, para. 71. 75 Ibid, p 25, para. 73. 76 J. L. Weinstein, supra n 2, p 209. 77 Ibid, p 209 (quoting various examples). 78 A note verbale can be defined as a written note, drafted in the third person and unsigned. In this sense: J. Basdevant, ‘La conclusion et la rédaction des traités et des instruments diplomatiques autres que les traités’, supra n 3, p 605; J. Basdevant (ed.), Dictionnaire, supra n 61, see ‘Note verbale’, p 422; L. Cavaré, supra n 27, p 92, fn 38. Cf the dictionary of public international law, edited by Jean Salmon, defines ‘note verbale’ as follows: Note écrite, non signée, rédigée à la troisième personne au nom d'un ministère des affaires étrangères, d'une organisation internationale ou d'une mission diplomatique. Généralement terminée par une formule de courtoisie, la note verbale est paraphée et porte le sceau du service expéditeur. (J. Salmon (ed.), Dictionnaire, supra n 5, see ‘Note verbale’, p 758) 79 H. Blix, ‘The Requirement of Ratification’, supra n 23, p 358; R. Jongbloet-Hamerlijnck, supra n 3, p 217; S. E. Nahlik, ‘La Conférence de Vienne sur le droit des traités. Une vue d'ensemble’, AFDI, 1969, p 35, para. 10; H. Neuhold, supra n 2, p 230; I. Sinclair, The Vienna Convention on the Law of Treaties (2nd edn, Manchester: Manchester University Press, 1984), p 39; M. E. Villiger, supra n 53, p 200; J. L. Weinstein, supra n 2, p 206. 80 C. Chayet, supra n 2, pp 4 and 7. 81 L. F. Damrosch, L. Henkin, R. C. Pugh, O. Schachter, and H. Smit, International Law. Cases and Materials (4th edn, St Paul, Minn.: West Group, American Casebook Series, 2001), p 473. 82 For various examples, see R. Jongbloet-Hamerlijnck, supra n 3, p 217, fn 118; J. Salmon (ed.), Dictionnaire, supra n 5, see ‘Note verbale’, p 758; and J. L. Weinstein, supra n 2, pp 206– 7. For an example of a pollicitation in the form of a note verbale, see the note verbale of the Ministry of Foreign Affairs of the Republic of Bulgaria no. KO 655–32–3, dated 16 December 1996, concerning a proposal to conclude an agreement between the Bulgarian and Spanish governments on the abolition of visas for nationals of the two countries who hold diplomatic passports (text in 1996 UNTS 36–7). See also the interventions of Mr Nahlik (Poland) and Mr Bevans (USA) during the 17th and 18th meetings of the Committee of the Whole (in United Nations Conference on the Law of Treaties, 1st session, Official Documents, Summary Records, p 93, para. 65 and para. 1). 83 J. L. Weinstein, supra n 2, pp 206–7. 84 United Nations Conference on the Law of Treaties, 2nd Session, Official Documents, Summary Records, p 26, para. 2. 85 H. Neuhold, supra n 2, p 230. 86 C. Chayet, supra n 2, p 6. Cf Sir R. Jennings and Sir A. Watts, supra n 6, p 1210, para. 586; Sir Ernest Satow, supra n 3, p 247, para. 29.34. 87 C. Chayet, supra n 2, p 6. 88 Ph. Manin, supra n 50, pp 85–6. 89 As rightly emphasized by Anthony Aust, ‘[e]xchanges of notes (or letters)…may constitute either a treaty or an MOU’ (A. Aust, supra n 2, pp 27 and 33). 90 On the distinction between the terms ‘agreement’ and ‘treaty’, see Ph. Manin, supra n 50, p 75. 91 Cf C. Chayet, supra n 2, p 6; Sir R. Jennings and Sir A. Watts, supra n 6, p 1210, para. 586, fn 10. 92 R. Jongbloet-Hamerlijnck, supra n 3, p 225. 93 P. Reuter, Introduction au droit des traités, supra n 23, p 79, para. 101*.

94 F. S. Hamzeh, supra n 2, p 186 and M. E. Villiger, supra n 53, p 199. On the much debated distinction between the intention of a minister for foreign affairs and the intention of his government as regards the legal scope of signed minutes, see Maritime Delimitation and Territorial Questions between Qatar and Bahrain case, Jurisdiction and Admissibility, Judgment of 1 July 1994, ICJ Reports 1994, pp 121–2, paras 26–7 as well as the following critical observations in legal literature: E. Lauterpacht, ‘ “Partial” judgments and the inherent jurisdiction of the International Court of Justice’ and E. W. Vierdag, ‘The International Court of Justice and the law of treaties’ in V. Lowe and M. Fitzmaurice (eds), Fifty years of the International Court of Justice. Essays in honour of Sir Robert Jennings (Cambridge: Cambridge University Press, 1996), p 471, fn 6 respectively p 165; S. Rosenne, ‘The Qatar/Bahrain Case. What is a Treaty? A Framework Agreement and the Seising of the Court’, supra n 48, pp 169– 70. Cf M. Dixon, Textbook on International Law (6th edn, Oxford: Oxford University Press, 2007), p 63. 95 See, in this respect, the warning of E. W. Vierdag, ‘The International Court of Justice and the law of treaties’ in supra n 94, pp 165–6. 96 R. Jongbloet-Hamerlijnck, supra n 3, p 217. 97 See the intervention of Mr Nahlik (Poland) during the 59th meeting of the Committee of the Whole (in United Nations Conference on the Law of Treaties, 1st session, Official Documents, Summary Records, p 346, para. 94). 98 For examples of exchanges of notes between two States subject to two ratifications, subject to two approvals or subject to one ratification and one approval, see J. L. Weinstein, supra n 2, p 210, respectively fns 9, 10, and 13. For more examples, see R. JongbloetHamerlijnck, supra n 3, p 216. 99 For examples, see R. Jongbloet-Hamerlijnck, supra n 3, pp 216–17. 100 With regard to exchanged instruments, Jules Basdevant states that: On en trouve parfois, surtout sous le nom de déclarations échangées, dans lesquelles est réservée la ratification des deux Gouvernements: cette réserve paraît avoir été plus fréquente autrefois qu'aujourd'hui, bien qu'elle n'ait pas complètement disparu. (J. Basdevant, ‘La conclusion et la rédaction des traités et des instruments diplomatiques autres que les traités’, supra n 3, p 610) For an example of exchange of declarations subject to ratification, see Basdevant, ibid, p 615, fn 2. 101 For an example of exchange of notes verbales subject to ratification, see J. L. Weinstein, supra n 2, p 206, fn 8. 102 J. Basdevant, ‘La conclusion et la rédaction des traités et des instruments diplomatiques autres que les traités’, supra n 3, p 615, fn 2; Sir Ernest Satow, supra n 3, p 247, para. 29.35; J. L. Weinstein, supra n 2, p 224. 103 For the text of the agreement, see 81 UNTS 14–19. 104 81 UNTS 19. 105 Ibid. 106 This conclusion is, otherwise, confirmed by a footnote in the UNTS indicating that the agreement entered ‘into force on 25 August 1950, by the exchange of the said notes’ (81 UNTS 15). 107 For the text of the agreement, see 81 UNTS 4–11. 108 81 UNTS 8. 109 81 UNTS 10. 110 A. Bolintineanu, supra n 51, p 684. 111 J. L. Weinstein, supra n 2, p 224, fn 5. 112 H. Blix, ‘The Requirement of Ratification’, supra n 23, p 359; A. Bolintineanu, supra n 51, pp 673–4, 677, and 684; P. Reuter, La Convention de Vienne du 29 mai 1969 sur le droit des traités, supra n 50, pp 15–16; I. Sinclair, supra n 79, p 41. 113 Intervention of Mr Reuter during the 27th session, 1353th meeting of the ILC (YILC, 1975, vol. I, p 269). 114 In this sense: A. Bolintineanu, supra n 51, p 683; S. Rosenne, ‘“Consent” and Related Words in the Codified Law of Treaties’ in Mélanges offerts à Charles Rousseau. La communauté internationale (Paris: Pedone, 1974), p 245. 115 For recourse to the context as a general rule of treaty interpretation, see Art. 31(1) and (2) of the Vienna Convention. Paul Reuter specifies furthermore, as regards the entry into force, that: Bien entendu, si un traité par échange de lettres se présente comme un accord accessoire à un ensemble plus vaste d'accords constituant une unité, l'accord par échange de lettres n'entre en vigueur qu'avec l'ensemble dont il fait partie (exemple: accord par échange de lettres entre l'Allemagne et la France sur la Sarre inclu (sic) dans le traité CECA, du 18 avril 1951). (P. Reuter, Introduction au droit des traités, supra n 23, p 79, para. 101*) 116 For recourse to any subsequent agreement as a general rule of treaty interpretation, see Art. 31(3)(a) of the Vienna Convention. 117 For recourse to any subsequent practice as a general rule of treaty interpretation, see

Art. 31(3)(b) of the Vienna Convention. On the distinction between applicative, interpretative, modifying, and abrogative subsequent practice, see G. Distefano, ‘La pratique subséquente des Etats parties à un traité’, AFDI, 1994, pp 41–71. 118 For recourse to the preparatory work of the treaty as a supplementary rule of treaty interpretation, see Art. 32 of the Vienna Convention. 119 For recourse to the circumstances of conclusion as a supplementary rule of treaty interpretation, see Art. 32 of the Vienna Convention. 120 Cf the First Report (A/CN.4/63) of Sir Hersch Lauterpacht dated 24 March 1953, YILC, 1953, vol. II, pp 112 and 115, para. 5(d); the Second Report (A/CN.4/87*) of Sir Hersch Lauterpacht dated 8 July 1954, YILC, 1954, vol. II, p 127 and the observations of the government of the United States and the Special Rapporteur, Sir Waldock in the Fourth Report on the Law of Treaties of the Special Rapporteur, Sir Humphrey Waldock (A/CN.4/177 and Add.1 and 2), YILC, 1965, vol. II, pp 37 and 39. Cf also the Harvard Research Draft Code on the Law of Treaties, AJIL, Suppl. 1935, vol. 29, p 769. 121 For the question of recourse to the relevant practice of parties vis-à-vis third States, see esp. the case concerning the Air Service Agreement of 27 March 1946 between the United States of America and France, decision of 9 December 1978 (RIAA, vol. XVIII, p 441, paras 70– 1) and the case concerning the Interpretation of the Air Transport Services Agreement between the United States of America and Italy of 6 February 1948, Advisory Opinion of 17 July 1965 (RIAA, vol. XVI, p 101, para. 7). On the limited application of the analogy in search of the intention of the parties, see V. D. Degan, L'interprétation des accords en droit international (The Hague: Martinus Nijhoff), 1963, pp 100–2, paras 65–6, p 116, para. 72 and pp 132–4, para. 78 (and the references to arbitration case law and case law of the PCIJ and the ICJ). 122 See esp. Art. 5(2) and Art. 12(5) of the Regulations on the registration and the publication of treaties and international agreements. For a consolidated version of the aforesaid Regulations, see 859/860 UNTS 12–20. See also the note verbale LA 41 TR/230 of the Legal Counsel of the United Nations dated 3 February 2010. Cf M. Frankowska, supra n 23, p 79 as well as the Second Report of 8 July 1954 (A/CN.4/87*) by Sir Hersch Lauterpacht, YILC, 1954, vol. II, p 129. As regards the requirement of the temporal character of the registration or filing and recording of treaties as well as their publication, see infra in this work the commentary on Art. 80 of the 1969 Convention. 123 Sir R. Jennings and Sir A. Watts, supra n 6, p 1230, para. 603; S. Rosenne, ‘ “Consent” and Related Words in the Codified Law of Treaties’ in supra n 114, p 247; the observation of the Special Rapporteur, Sir Waldock, in his Fourth Report on the Law of Treaties (A/CN.4/177 and Add.1 and 2), YILC, 1965, vol. II, p 38, para. 4. Cf G. Fitzmaurice, supra n 20, p 127 (quoting Oppenheim). 124 See A. Bolintineanu, supra n 51, pp 677–8; J. Dehaussy, ‘Les traités. Conclusion et conditions de validité formelle’ in supra n 23, pp 26–7, para. 48; P.-F. Smets, supra n 6, p 31. Cf L. Wildhaber, ‘Executive Agreements’ in supra n 18, p 314. 125 Cf the observation of Special Rapporteur, Sir Humphrey Waldock in his Fourth Report on the Law of Treaties (A/CN.4/177 and Add.1 and 2), YILC, 1965, vol. II, p 38, para. 3. As regards research by the interpreter of the parties' common will, see inter alia the arbitral award rendered on 9 December 1966 by HM Queen Elizabeth II of the United Kingdom with the Report, in appendix, of the Court of Arbitration chaired by Lord McNair in the ArgentinaChile Frontier Case (in ILR, 1966, vol. 38, p 89), the decision regarding the Delimitation of the Border between Eritrea and Ethiopia, dated 13 April 2002, adopted unanimously by the Eritrea-Ethiopia Boundary Commission, chaired by Sir Elihu Lauterpacht (previously unpublished, p 21, para. 3.4) as well as the arbitral award of 12 March 2004 in the case concerning the Auditing of accounts between the Kingdom of the Netherlands and the French Republic pursuant to the additional Protocol of 25 September 1991 to the Convention on the Protection of the Rhine against pollution by Chlorides of 3 December 1976 (previously unpublished, p 26, para. 62) where the Arbitral Tribunal concludes that ‘[a]ll the elements of the general rule of interpretation [codified in Art. 31 of the Vienna Convention] provide the basis for establishing the common will and intention of the parties by objective and rational means’. 126 M. Lachs, ‘La preuve et la Cour internationale de Justice’ in Ch. Perelman and P. Foriers (eds), La preuve en droit (Brussels: Bruylant, 1981), p 111. See also G. Niyungeko, La preuve devant les juridictions internationales (Brussels: Bruylant, 2005), p 484. 127 For the examination of the question of the absence of a suppletory rule, see infra paras 56–64. 128 On this question, see S. Rosenne, ‘“Consent” and Related Words in the Codified Law of Treaties’ in supra n 114, pp 240–1 and M. E. Villiger, supra n 53, p 199. See also the interventions of Messrs Rosenne (Israel), Harry (Australia), Yasseen (chairman of the Drafting Committee), Jagota (India), and Baden-Semper (Trinidad and Tobago) during the 59th meeting of the Committee of the Whole and the proposal of the Chairman Mr Elias (Nigeria) to leave it to the Drafting Committee to decide whether the word ‘States’ in the phrase ‘The consent of States’ at the beginning of the Article should remain in the plural (in United Nations Conference on the Law of Treaties, 1st session, Official Documents, Summary Records, pp 345–7, paras 79–80, 86, 88, 96, and 104–5). 129 A. Bolintineanu, supra n 51, p 681; C. Chayet, supra n 2, p 9; P. Reuter, Introduction au droit des traités, supra n 23, p 60, para. 107; D. Ruzié, supra n 54, p 39. For an example of exchange of notes between two States subject to one ratification only, see J. L. Weinstein, supra n 2, p 210, fn 11. Cf the example given by J. Basdevant, ‘La conclusion et la rédaction

des traités et des instruments diplomatiques autres que les traités’, supra n 3, p 610, fn 1. For an example of exchange of notes between two States subject to one approval only, see J. L. Weinstein, supra n 2, p 210, fn 12. 130 T. O. Elias, supra n 20, p 24; R. Jongbloet-Hamerlijnck, supra n 3, pp 225–6. See also para. 3 of the commentary on draft Art. 12 (Art. 14 of the Convention) provisionally adopted by the ILC during its 14th session, Report of the ILC to the General Assembly (A/5209), YILC, 1962, vol. II, p 172 and para. 3 of the final commentary on draft Art. 11 (Art. 14 of the Convention) adopted by the ILC during its 18th session, Report of the ILC to the General Assembly (A/6309/Rev.1), ACDI, 1966, vol. II, p 197. 131 Emphasis added. Cf the intervention of Mr Baden-Semper (Trinidad and Tobago) during the 59th meeting of the Committee of the Whole (in United Nations Conference on the Law of Treaties, 1st session, Official Documents, Summary Records, p 347, para. 104). 132 Observation of the Special Rapporteur, Sir Waldock, in his Fourth Report on the Law of Treaties (A/CN.4/177 and Add.1 and 2), YILC, 1965, vol. II, p 38, para. 4; L. Wildhaber, ‘Executive Agreements’ in supra n 18, p 314. 133 A. Cassese, supra n 16, p 172; J. L'Huillier, Éléments de droit international public (Paris: Ed. Rousseau, 1950), p 188, para. 319. Cf Harvard Research Draft Code on the Law of Treaties, supra n 120, p 769. See also for the definition of the expression ‘treaty in simplified form’, the text of draft Art. 12(2)(d) as well as para. 7 of the commentary, provisionally adopted by the ILC during its 14th session, Report of the ILC to the General Assembly (A/5209), YILC, 1962, vol. II, pp 161 and 171–3. See also the observation of Special Rapporteur, Sir Waldock, in his Fourth Report on the Law of Treaties (A/CN.4/177 and Add.1 and 2), YILC, 1965, vol. II, p 38, para. 4. 134 Sir R. Jennings and Sir A. Watts, supra n 6, p 1229, para. 606, fn 5 in fine. Cf G. Fitzmaurice, supra n 20, p 127. 135 See supra at para. 10. 136 United Nations Conference on the Law of Treaties, 1st session, Official Documents, Summary Records, p 94, para. 5. 137 Ibid, p 345, para. 75. 138 Ibid, p 345, para. 77. See also the observations of Mr Yasseen, chairman of the Drafting Committee, in response to the intervention of the Swedish representative, Mr Blix (ibid, p 346, para. 89) and in response to the intervention of the Canadian representative, Mr Wershof (ibid, p 346, para. 99). See finally the intervention of the representative of Uruguay, Mr Jiménez de Aréchaga (ibid, pp 346–7, paras 100–3). 139 Ibid, p 347, para. 105. 140 For the absence of any suppletory presumption in favour of signature or ratification in the Vienna Convention, see supra in this work paras 34–5 of the commentary relating to Art. 12. 141 For recourse to any subsequent agreement as a general rule of treaty interpretation, see Art. 31(3)(a) of the Vienna Convention. 142 For recourse to subsequent practice as a general rule of treaty interpretation, see Art. 31(3)(b) of the Vienna Convention. 143 Exchange of notes between the United States of America and Turkey, relating to the application of most-favoured-nation treatment to the merchandise trade of certain areas under occupation or control. The notes were exchanged at Ankara on 4 July 1948. The fifth Article of these notes lays down the duration of the Agreement, but provides nothing as to the manner in which it was to enter into force. A footnote in the United Nations Treaty Series states that the Agreement ‘came into force on the 13 July 1948, by notice of ratification thereof given to the Government of the United States of America by the Government of Turkey’ (34 UNTS 185). (Original note, H. Blix, ‘The Requirement of Ratification’, supra n 23, p 366.) 144 United Nations Conference on the Law of Treaties, 1st session, Official Documents, Summary Records, p 345, para. 81. 145 Ibid, p 345, para. 82. Mr Blix concluded that ‘the Drafting Committee's text [deleting the residual legal presumption] would throw doubt on the existence of that rule and would therefore be a step backwards rather than forwards. In fact, it was purely descriptive’ (ibid, p 345, para. 83). 146 M. Frankowska, supra n 23, pp 78–9. See also G. Fitzmaurice, supra n 20, p 129. 147 See in this respect the First Report (A/CN.4/63) of Sir Hersch Lauterpacht dated 24 March 1953, YILC, 1953, vol. II, pp 112 and 115 and his Second Report (A/CN.4/87*) dated 8 July 1954, YILC, 1954, vol. II, p 127. 148 See for the definition of the expression ‘treaty in simplified form’, the text of draft Art. 12(2)(d) as well as para. 7 of the commentary, provisionally adopted by the ILC during its 14th session, Report of the ILC to the General Assembly (A/5209), YILC, 1962, vol. II, pp 161 and 171–3. 149 See para. 3 of the final commentary of draft Art. 11 (Art. 14 of the Convention) adopted by the ILC during its 18th session, Report of the ILC to the General Assembly (A/6309/Rev.1), YILC, 1966, vol. II, p 197. For the literature, see also T. O. Elias, supra n 20, p 24 and G. Fitzmaurice, supra n 20, pp 127–9. On the work of the ILC, see A. Bolintineanu, supra n 51, p 676.

150 United Nations Conference on the Law of Treaties, 1st session, Official Documents, Summary Records, p 347, para. 102. 151 In this sense: A. Bolintineanu, supra n 51, p 676; J. Combacau and S. Sur, supra n 50, pp 119–20; Ph. Manin, supra n 50, p 87 and J. Salmon, Droit des gens, supra n 20, p 79. For the absence of any suppletory presumption in favour of signature or ratification in customary international law, see supra paras 34–5 of the commentary relating to Art. 12. 152 G. Schwarzenberger, supra n 23, p 431. 153 In this regard, it should be noted that the 1969 and 1986 Vienna Conventions on the Law of Treaties also treat these topics separately. Indeed, Part II, entitled ‘Conclusion and Entry into Force of Treaties’, has three sections: Section 1 entitled ‘Conclusion of Treaties’; Section 2 entitled ‘Reservations’; and Section 3 entitled ‘Entry into Force and Provisional Application of Treaties’. 154 Article 18(b) of the Vienna Convention. 155 For the question of the entry into force, see infra paras 73–6. 156 C. Chayet, supra n 2, p 8. 157 J. L. Weinstein, supra n 2, pp 209–10. 158 Nguyen Quoc Dinh, P. Daillier, M. Forteau, and A. Pellet, supra n 20, p 159, para. 84: ‘Autrement, les signatures s'effectuent par un échange de notes ou de lettres, la date du traité étant celle de la réception de la deuxième lettre ou note’. 159 Sir Ernest Satow, supra n 3, pp 247–8, para. 29.36. 160 G. Fitzmaurice, supra n 20, p 127. 161 J. Salmon (ed.), Dictionnaire, supra n 5, see ‘Échange’, p 407. 162 J. Pearsall and B. Trumble (eds), The Oxford English Reference Dictionary (2nd edn, Oxford: Oxford University Press, 1996), p 488. 163 See eg the exchange of notes of 17 and 25 August 1950 constituting an agreement between the Netherlands and Luxembourg regarding the placement of Dutch agricultural workers in Luxembourg (81 UNTS 14–19). As the agreement did not contain any mode or date for its entry into force, the entry into force, as indicated in the footnote of the UNTS, namely 25 August 1950, coincides in conformity with Art. 24(2) of the Vienna Convention, with the date of conclusion stricto sensu. 164 In this regard, one should note that diplomatic practice is not uniform. For example, whereas Belgian practice favours, in principle, the sending of the instruments by post, Dutch practice prefers, in principle, that the exchange of notes or letters takes place at the Ministry of Foreign Affairs, in order to determine with certainty the exact moment of the conclusion of the treaty. See also Philippe Manin, who specifies that ‘[d]ans le cas de l’échange de notes, c'est l'échange matériel de notes—qu'il se fasse de la main à la main ou par la voie postale— qui crée l'engagement' (Ph. Manin, supra n 50, p 88). 165 On the question of the validity of the reasoning per analogiam in public international law, see J. Salmon, ‘Le raisonnement par analogie en droit international public’ in Mélanges offerts à Charles Chaumont. Le droit des peuples à disposer d'eux-mêmes. Méthodes d'analyse du droit international (Paris: Pedone, 1984), pp 495–525. 166 Paragraph 3 of the final commentary of draft Art. 13 (Art. 16 of the Convention) adopted by the ILC during its 18th session, Report of the ILC to the General Assembly (A/6309/Rev.1), YILC, 1966, vol. II, p 201. 167 See, in this respect, para. 4 of the final commentary of draft Art. 13 (Art. 16 of the Convention) adopted by the ILC during its 18th session, Report of the ILC to the General Assembly (A/6309/Rev.1), YILC, 1966, vol. II, p 201. 168 Paragraph 4 of the final commentary of draft Art. 13 (Art. 16 of the Convention) adopted by the ILC during its 18th session, Report of the ILC to the General Assembly (A/6309/Rev.1), YILC, 1966, vol. II, p 201. See also, in particular, for the notification of notes, J. Wilmanns, ‘Note’ in R. Bernhardt (ed.), supra n 9, pp 694–5. 169 On the subject in general, see C. Chayet, supra n 2, p 8; G. Fitzmaurice, supra n 20, p 127; R. Jongbloet-Hamerlijnck, supra n 3, p 217; P.-F. Smets, supra n 6, pp 167–71; J. L. Weinstein, supra n 2, pp 209–10 (quoting various examples). 170 For the question of determining the exact date of the exchange, see supra paras 65–72. 171 Contra: H. Blix, ‘The Requirement of Ratification’, supra n 23, p 366; C. Chayet, supra n 2, p 8. However, J. L. Weinstein (supra n 2, p 213) calculated that the League of Nations Treaty Series contained 4,831 treaties, of which 1,078 were concluded by exchange of instruments. Blix alleged that 75 exchanges of notes did not contain any clause regarding entry into force. Therefore, only 6.9 per cent of the treaties concluded by exchange of notes at the time of the League of Nations did not contain such a clause. In conclusion, the majority of the exchange of notes did contain clauses regarding their entry into force. On the basis of the same statistics provided by J. L. Weinstein (supra n 2, pp 213–14), we calculated that this percentage amounts however to 35.7 per cent for the treaties concluded by exchange of notes published in the United Nations Treaty Series for the period 1946–51. Nevertheless, on the basis of data provided by M. Frankowska covering the period 1963–65 (supra n 23, pp 78–9), this percentage seems to diminish considerably. 172 See eg the exchange of notes of 30 July and 10 December 1982 constituting an agreement between the United States and Israel concerning general security of military information (2001 UNTS 4–11).

173 See eg the exchange of notes of 19 April 1996 and 6 October 1997 constituting an agreement between Austria and the Netherlands concerning the legal status of Austrian employees at the Europol Drugs Unit (1998 UNTS 80–1). 174 See eg the exchange of notes of 17 and 25 March 1949 constituting an agreement between the United States and Peru superseding the Agreement of 9 March and 4 August 1944 relating to a cooperative programme for anthropological research and investigation in Peru (89 UNTS 16–22). For more examples, see H. Neuhold, supra n 2, p 249, fn 191. 175 See eg the exchange of notes of 18 December 1996 constituting an agreement between Latvia and Denmark on the readmission of persons entering a country and residing there without authorization (1999 UNTS 388–94). 176 See eg the exchange of notes of 16 December 1996 constituting an agreement between Spain and Bulgaria on the abolition of visas for holders of diplomatic passports (1996 UNTS 36–7 and 42). 177 A. Aust, supra n 2, pp 23 and 103; C. Chayet, supra n 2, p 8; F. S. Hamzeh, supra n 2, p 189; Sir Ernest Satow, supra n 3, p 248, para. 29.38, fns 99 and 100; J. L. Weinstein, supra n 2, p 207. See also mutatis mutandis the final commentary relating to draft Art. 13 (of the 1986 Convention) adopted by the ILC, Report of the ILC to the General Assembly on the work of its 34th session (A/37/10), YILC, 1982, vol. II, P art Two, p 30, para. 1. See finally the intervention of Sir Francis Vallat and the proposal of Mr Quentin-Baxter (Chairman of the Drafting Committee) at the 27th session of the ILC (YILC, 1975, vol. I, p 231, para. 38 and p 269, para. 70). 178 J. L. Weinstein, supra n 2, p 207, fn 4, quoting as example the exchange of letters of 23 August 1949 constituting an agreement between Belgium, acting in its name and on behalf of Luxembourg (within the framework of the Belgo-Luxembourg Economic Union), on the one hand, and Chile, on the other hand, completing the Protocol, signed at Geneva on 30 October 1947, for the provisional application of the General Agreement on Tariffs and Trade. For the text of the agreement, see 46 UNTS 164–8. 179 While a bilateral treaty is concluded by two parties, each party could be composed of one or more subjects of international law. 180 A. Aust, supra n 2, p 23. For various examples, see A. Aust, supra n 2, p 23, fns 41 and 42; C. Chayet, supra n 2, p 8, fn 10; Sir Ernest Satow, supra n 3, p 248, para. 29.38; J. L. Weinstein, supra n 2, p 207, fns 5 and 6. 181 A. Aust, supra n 2, p 23. 182 Fourth Report on the question of treaties concluded between States and international organizations or between two or more international organizations, by Mr Paul Reuter, Special Rapporteur (A/CN.4/285), YILC, 1975, vol. II, p 34. 183 YILC, 1975, vol. I, p 235, para. 26. 184 On this subject, see A. Aust, supra n 2, p 22. 185 Maritime Delimitation and Territorial Questions between Qatar and Bahrain case, Jurisdiction and Admissibility, Judgment of 1 July 1994, ICJ Reports 1994, p 116, para. 17. 186 A. Aust, supra n 2, p 22. 187 Maritime Delimitation and Territorial Questions between Qatar and Bahrain case, Jurisdiction and Admissibility, Judgment of 1 July 1994, ICJ Reports 1994, p 120, para. 22. 188 Ibid, p 122, para. 30. On this subject, see also A. Aust, supra n 2, pp 51–2 and S. Rosenne, ‘The Qatar/Bahrain Case. What is a Treaty? A Framework Agreement and the Seising of the Court’, supra n 48, pp 165–6. 189 See eg J. Basdevant, ‘La conclusion et la rédaction des traités et des instruments diplomatiques autres que les traités’, supra n 3, pp 615–16 and 544; J. Devaux, ‘La conclusion des traités internationaux en forme s’écartant des règles constitutionnelles et dite “conclusion en forme simplifiée” ', Revue internationale française du droit des gens, 1936, I, pp 299–309; Ph. Gautier, supra n 23, pp 68–70, 149–309, and 533–5; J. Masquelin, supra n 2, pp 293–300, paras 235–40; J. Verhoeven, Droit international public (Brussels: Larcier, 2000), pp 387–9. 190 J. Basdevant, ‘La conclusion et la rédaction des traités et des instruments diplomatiques autres que les traités’, supra n 3, pp 615 and 544. See also Art. 1(b) of the Harvard Research Draft Code on the Law of Treaties according to which ‘[t]he term “treaty” does not include an agreement effected by exchange of notes’ (Harvard Research Draft Code on the Law of Treaties, supra n 121, p 657). 191 Article 11 enumerates various means of expressing consent to be bound by a treaty, among which is the exchange of instruments constituting a treaty. 192 This Costarican reservation was made upon signature and confirmed upon ratification. 193 This Peruvian reservation was made upon ratification of the Vienna Convention. 194 L. Wildhaber, ‘Executive Agreements’ in supra n 18, p 316. 195 See, in this respect, Art. 11 of the Vienna Convention and the commentary in this work as well as the first report by Paul Reuter dated 3 April 1972 (A/CN.4/258) on the question of treaties concluded between States and international organizations or between two or more international organizations, YILC, 1972, vol. II, p 188, para. 56. See also P.-M. Dupuy, supra n 23, p 256, para. 252; E. W. Vierdag, ‘The Law Governing Treaty Relations Between Parties to the Vienna Convention on the Law of Treaties and States Not Party To the Convention’, AJIL, 1982, p 788. 196 For the diplomatic practice, see supra paras 6–9.

197 C. Chayet, supra n 2, p 7; M. Frankowska, supra n 23, p 71. 198 P. Reuter, La Convention de Vienne du 29 mai 1969 sur le droit des traités, supra n 50, p 7. 199 It should be noted that the expression ‘constitutional law’ of a State must be understood here in its broadest sense, including, among other things, the constitution, institutional laws and other laws, as well as the customs and constitutional practices of the State. Indeed, it can result from a custom or a constitutional practice of the State that the treaty-making power is also granted to organs other than those officially mentioned by the constitution of that State. 200 J. L'Huillier, supra n 133, pp 187–8, para. 319. Such act of the parliament is sometimes referred to by authors as ‘constitutional ratification’. See H. Blix, ‘The Requirement of Ratification’, supra n 23, p 352; G. Fitzmaurice, supra n 20, pp 113–18; Ph. Gautier, supra n 23, p 160. See also para. 1 of the final commentary relating to draft Art. 11 (Art. 14 of the Convention) adopted by the ILC during its 18th session, Report of the ILC to the General Assembly (A/6309/Rev.1), YILC, 1966, vol. II, p 197. 201 As Luzius Wildhaber points out, jurisprudence, in general, is not very prepared to declare an agreement in simplified form invalid under national law (L. Wildhaber, ‘Executive Agreements’ in supra n 18, p 316). 202 See Art. 46 of the Vienna Convention and the commentary in this work. See also Land and Maritime Boundary between Cameroun and Nigeria case, Judgment of 10 October 2002, ICJ Reports 2002, p 430, para. 265. 203 Land and Maritime Boundary between Cameroun and Nigeria case, Judgment of 10 October 2002, ICJ Reports 2002, p 430, para. 266. 204 See eg J. Dehaussy, ‘Les traités. Conclusion et conditions de validité formelle’ in supra n 23, p 28, para. 51 and Ph. Gautier, supra n 23, p 160. 205 The reason is that only the executive being vested with the treaty-making power, no provision of internal law regarding the competence to conclude treaties, therefore, was breached within the meaning of Art. 46 of the Vienna Convention. In this sense: J. Salmon, Droit des gens, supra n 20, p 151. Cf Maritime Delimitation and Territorial Questions between Qatar and Bahrain case, Jurisdiction and Admissibility, Judgment of 1 July 1994, ICJ Reports 1994, pp 121–2, paras 26–7 where the Court accepts the international validity of the Minutes signed at Doha on 25 December 1990 by the ministers of foreign affairs of Bahrain, Qatar, and Saudi Arabia and rejects the argument invoked by Bahrain to the effect that according to the Constitution of Bahrain, treaties concerning the territory of the State can enter into force only after their positive enactment as a law. 206 Cf J. Salmon, Droit des gens, supra n 20, p 96. 207 S. Rosenne, ‘Treaties, conclusion and entry into force’ in supra n 60, p 935; J. Salmon, Droit des gens, supra n 20, p 97. 208 Indeed, it is not ruled out that the executive deems in certain cases that the treaty in question should not be integrated in the internal legal order of the State. 209 Regarding ratification, see in this work infra the commentary on Art. 14. As already mentioned, the hypothesis of the exchange of instruments constiting a treaty subject to ratification, acceptance, or approval is, otherwise, envisaged in Art. 18(a) of the 1969 Vienna Convention. 210 J. Dehaussy, ‘Les traités. Conclusion et conditions de validité formelle’ in supra n 23, p 27, paras 48–9 and P.-M. Dupuy, supra n 23, p 255, para. 250 and pp 256–7, para. 252; P. Reuter, Introduction au droit des traités, supra n 23, p 56, para. 98. Contra: A. Cassese, supra n 16, p 172. 211 Cf C. Chayet, supra n 2, p 11; J. Combacau and S. Sur, supra n 50, p 121. 212 See in this respect Art. 14(1)(c) of the Vienna Convention. Special Rapporteur Sir Humphrey Waldock, rightly underlined that ‘[n]ormally, a State would protect its position under its internal law by making its signature subject to ratification or approval’ (YILC, 1965, vol. II, p 35, para. 4). See also paras 3 and 8 of the final commentary relating to Art. 11 (Art. 14 of the Convention) adopted by the ILC during its 18th session, Report of the ILC to the General Assembly (A/6309/Rev.1), YILC, 1966, vol. II, pp 197–8. See further the intervention by Mr Blix (Sweden) during the 16th meeting of the Committee of the Whole (in United Nations Conference on the Law of Treaties, 1st session, Official Documents, Summary Records, p 88, para. 32). See finally J. Masquelin, supra n 2, p 355, para. 297. Cf P.-M. Dupuy, supra n 23, pp 256–7, para. 252. 213 A. Cassese, supra n 16, p 172. 214 Land and Maritime Boundary between Cameroun and Nigeria case, Judgment of 10 October 2002, ICJ Reports 2002, p 429, para. 264. * Visiting Professor in public international law, Vrije Universiteit Brussel (VUB); research associate at the International Law Centre of the Université Libre de Bruxelles (ULB), Belgium.

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Volume I, Part II Conclusion and Entry into Force of Treaties, s.1 Conclusion of Treaties, Art.13 1986 Vienna Convention Cédric van Assche From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Treaties, conclusion — Customary international law — Diplomatic missions

(p. 286) 1986 Vienna Convention Article 13 Consent to be bound by a treaty expressed by an exchange of instruments constituting a treaty The consent of States or of international organizations to be bound by a treaty constituted by instruments exchanged between them is expressed by that exchange when: (a) the instruments provide that their exchange shall have that effect; or (b) it is otherwise established that those States and those organizations or, as the case may be, those organizations were agreed that the exchange of instruments should have that effect. 1. Article 13 of the 1986 Vienna Convention restates, mutatis mutandis, the wording of Article 13 of the 1969 Vienna Convention, the heading of the Article remaining, furthermore, unchanged. The commentary devoted to this latter provision is thereby, mutatis mutandis, applicable to the present commentary.1 2. Article 13 was adopted at the fifth plenary meeting of the Conference without a vote.2 3. The customary character of the rule embodied in Article 13 of the 1986 Vienna Convention is well established in general international law.3 Indeed, a conventional practice exists whereby international organizations conclude treaties by exchange of instruments.4 A few examples should suffice to illustrate this practice. Thus the exchange of notes of 17 and 18 December 1997 constituting an Agreement between the government of the Republic of Korea and the World Health Organization (WHO) concerning the establishment of a Community Health Project Fund.5 The notes in question were signed respectively by the permanent representative of the Republic of Korea to the United Nations and other international organizations in Geneva, and by the Director-General of WHO, and were exchanged in Geneva. The Agreement entered into force on the date of the last note, namely on 18 December 1997. Other examples can be found in the Agreement between the Kingdom of Belgium and the United Nations definitively settling the financial questions outstanding as regards the former Belgian military bases in the Congo and the Agreement between the Kingdom of Belgium and the United Nations relating to the settlement of (p. 287) claims filed against the United Nations in the Congo by Belgian nationals, concluded by exchanges of letters in New York, dated 20 February 1965.6 4. Sometimes the determination of the means of expressing the consent of an international organization to be bound by a treaty is a question of interpretation. Thus, for example, the exchange of letters of 26 June 1946 recording an Agreement between the International Court of Justice (ICJ) and the Netherlands, relating to privileges and immunities of members of the ICJ, the Registrar, officials of the Registry, assessors, the agents and counsels of the parties, and of witnesses and experts.7 The letters in question were signed respectively by the President of the ICJ and by the minister for foreign affairs of the Netherlands and were exchanged in The Hague. On this subject, it seems that the UN did not express its consent to be bound by the aforementioned Agreement by exchange of aforesaid letters, but by approval given by the General Assembly. Indeed, on the one hand, the letters in question stipulate that ‘…the Secretary-General is requested to ask the General Assembly to declare the agreement reached between the Netherlands Government and the Court to be satisfactory’.8 In addition, the General Assembly, by its Resolution 90 (I), adopted on 11 December 1946:

Approves the agreements concluded between the International Court of Justice and the Netherlands Government, as recorded in the exchange of letters between the President of the Court and the Minister for Foreign Affairs of the Netherlands. Furthermore, the question arises whether the ICJ possesses the treaty-making power to conclude such an agreement.9 Lastly, the note published by the Secretariat of the United Nations accompanying the publication of the agreement in the United Nations Treaty Series indicates that the Agreement ‘came into force on 11 December 1946, the date of approval by the General Assembly (resolution 90 (I)’.10 In conclusion, if the Netherlands expressed, by the exchange of instruments constituting a treaty, its consent to be bound by the Agreement, the approval of the Agreement by the General Assembly in Resolution 90 (I) probably constitutes, on the other hand, the expression of consent of the UN to be bound by the aforesaid Agreement. 5. Finally, it should be recalled that the fact that Article 13 of the 1986 Vienna Convention makes it possible to conclude by exchange of instruments constituting a treaty does not exempt the agents and organs representing an international organization from complying with the rules of that international organization governing the internal aspects of the procedure of conclusion of treaties.11 *

CÉDRIC VAN ASSCHE

Footnotes: 1 See also the final commentary relating to draft Art. 13 adopted by the ILC, Report of the ILC to the General Assembly on the work of its 34th session (A/37/10), YILC, 1982, vol. II, Part Two, p 30.

2 United Nations Conference on the Law of Treaties between States and International Organizations or between International Organizations, Official Records, vol. I, Summary Records, p 13. 3 See the final commentary relating to draft Art. 11 adopted by the ILC, Report of the ILC to the General Assembly on the work of its 34th session (A/37/10), YILC, 1982, vol. II, Part Two, p 29, para. 2. 4 F. S. Hamzeh, ‘Agreements in Simplified Form—Modern Perspective’, BYBIL, 1968–69, p 189; H. Neuhold, ‘Organs Competent to Conclude Treaties for International Organizations and the Internal Procedure Leading up to the Decision to be Bound by a Treaty. Negotiation and Conclusion of Treaties by International Organizations’, ÖZöRV, 1971, Suppl. 1, p 231; C. Osakwe, ‘The Concept and Forms of Treaties Concluded by International Organizations’, ÖZöRV, 1971, Suppl. 1, pp 183 and 192–3; J. L. Weinstein, ‘Exchange of Notes’, BYBIL, 1952, pp 207–8. 5 2032 UNTS 226–9. 6 For the text of these agreements, see 535 UNTS 191–203. 7 8 UNTS 61–9. 8 8 UNTS 65. See also ibid, p 69. 9 For the determination of the UN organs vested with treaty-making power in general and the suppletory power of the General Assembly in particular, see H. Neuhold, supra n 4, pp 201–5. 10 8 UNTS 63, fn 1. However, this argument could be refuted by the argument according to which the approval of the agreement by the General Assembly only relates to the entry into force of that agreement. 11 Under Art. 2(1)(j) of the Vienna Convention 1986, the expression ‘rules of the organization’ means, in particular, the constituent instruments, decisions, and resolutions adopted in accordance with them, and established practice of the organization. In this respect, it is interesting to note that under the terms of the twelfth paragraph of the preamble to the aforesaid Convention, the parties to the Convention are ‘recognizing that the practice of international organizations in concluding treaties with States or between themselves should be in accordance with their constituent instruments’ (emphasis added). For the question of the rules of international organizations governing the internal and external aspects of the procedure of concluding treaties, see H. Neuhold, supra n 4, pp 195–268. * Visiting Professor in public international law, Vrije Universiteit Brussel (VUB); research associate at the International Law Centre of the Université Libre de Bruxelles (ULB), Belgium.

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Volume I, Part II Conclusion and Entry into Force of Treaties, s.1 Conclusion of Treaties, Art.14 1969 Vienna Convention Rafâa Ben Achour, Imed Frikha, Mounir Snoussi From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Treaties, ratification — Object & purpose (treaty interpretation and) — Customary international law — Codification — Treaties, binding force — Treaties, entry into force

(p. 288) 1969 Vienna Convention Article 14 Consent to be bound by a treaty expressed by ratification, acceptance or approval 1. The consent of a State to be bound by a treaty is expressed by ratification when: (a) the treaty provides for such consent to be expressed by means of ratification; (b) it is otherwise established that the negotiating States were agreed that ratification should be required; (c) the representative of the State has signed the treaty subject to ratification; or (d) the intention of the State to sign the treaty subject to ratification appears from the full powers of its representative or was expressed during the negotiation. 2. The consent of a State to be bound by a treaty is expressed by acceptance or approval under conditions similar to those which apply to ratification. A. General characteristics 289 Purpose and goal 289 Customary status 290 B. Problems of interpretation 293 Definition of ratification, acceptance, and approval 293 Impossible to establish the intention of the States which participated in the negotiations on the choice of the mode of expression of consent to be bound 297 Legal status of ratification 300 C. Legal effects of ratification, acceptance, or approval 303

Bibliography Blix, H., ‘The requirement of ratification’, BYBIL, 1953, p 380 Dehousse, F., La ratification des traités (Paris: Sirey, 1935) De Visscher, P., ‘Les tendances internationales des constitutions modernes’, RCADI, 1952-I, vol. 80, pp 511–77 Fitzmaurice, G., ‘Do treaties need ratification?’, BYBIL, 1934, p 129 Frankowska, M., ‘De la prétendue présomption en faveur de la ratification’, RGDIP, 1969, pp 62–88 Freymond, P., La ratification des traités et le problème des rapports entre le droit international et le droit interne (Lausanne: Faculté de droit de l'Université de Lausanne, 1947) Hostert, J., ‘Droit international et droit interne dans la Convention de Vienne sur le droit des traités’, AFDI, 1969, pp 92–121 Vallee, Ch., ‘Notes sur les dispositions relatives au droit international dans quelques constitutions récentes’, AFDI, 1979, pp 255–80

(p. 289) A. General characteristics Purpose and goal 1. ‘The success of the Conference depends on whether it would be possible to adopt for the question now under consideration [ratification], a solution that would get general acceptance.’1 The adoption by the United Nations Conference on the Law of Treaties of a rule governing the mode of expression by the States showing their consent to be bound by a treaty assumed particular importance from the outset of the drafting process. The rule at issue should neither undermine the principle of State sovereignty nor unduly complicate the issue. The idea was to establish a choice between the different ways of expressing consent and to provide a rule which was both compulsory and quite flexible in this respect. 2. The debate among the Conference participants was aimed at determining ratification as an obligatory expression of consent to be bound in case of silence of the treaty. This debate originated from the first draft Articles proposed by the ILC on the issue of the mode of expressing consent. The original version of 1962, Article 12, paragraph 1 imposed mandatory ratification as a way of expressing consent to be bound by a treaty: ‘Treaties in principle require ratification unless they fall within exceptions provided for in paragraph 2 above…’. The draft rule was mandatory but included exceptions based on the distinction between formal treaties and agreements in simplified form.2 The Commission based its choice of a presumption favouring ratification due on the provisions. ‘It's actually necessary that a rule states clearly a presumption so that in future the parties know if a specific provision is necessary or not to give effect to their intentions.’3 It was of the opinion that a contrary

approach, making ratification an optional choice, could not secure the agreement of the general Conference participants. The agreement of the members of the Commission was only achieved in the absence of a presumption of the necessity of ratification for the agreements in simplified form.4 3. The 1962 draft was sharply criticized by representatives of member States participating in the Conference. Some noted the flawed form of the draft rule and the intricacies it might beget. They proposed to reverse the basic presumption, namely that ratification is not necessary unless it is expressly provided by mutual agreement between countries participating in the negotiations.5 As Special Rapporteur, Sir H. Waldock supported this viewpoint. He deemed that the provision for ratification should not be based on a distinction between formal treaties and agreements in simplified form.6 The purpose of this provision is to solve cases in which the intent of the parties regarding the mode of expressing consent is not clear: ‘If States always gave clear indications of their intentions on this point, there would be no problems; but that is not so’.7 (p. 290) 4. Sir H. Waldock issued two drafts in this respect, one of which was faithful to the spirit of the 1962 draft but formulated with greater clarity that: ‘[a] treaty in principle requires ratification by the States concerned unless…’.8 The second draft worded his own suggestion which favoured a rule enumerating the cases in which ratification was required: A treaty requires ratification where: a) the treaty itself expressly contemplates that it shall be subject to ratification; b) the intention that it shall be subject to ratification appears from the nature of the treaty and the form of the instrument in which it is embodied, the terms of the representatives' instruments of full powers, the preparatory work of he treaty and the circumstances of its conclusion.9 5. In its report to the General Assembly in 1966, the Commission used all these arguments to ground the rules governing ratification. It acknowledged that the flawed wording of the 1962 draft was due to an effort to reconcile two opposing points of view adopted by States and to the absence of a precise definition of agreements in simplified form. It therefore decided that it should simply lay down the conditions under which the consent of a State to be bound by a treaty is expressed by ratification.10 The Commission no longer needed to assume ratification for formal treaties in some circumstances while not for agreements in simplified form. It considered that the issue of ratification should depend on the intention of the States which participated in the negotiation. The principle of State sovereignty implies respect for the independence of the will of States for the conclusion of treaties as well as the choice of the mode of expressing their consent. Thus, Article 14 (Art. 12 in the draft of 1962 and 1965 and Art. 11 in the draft of 1966) simply sets forth the rules that determine when ratification is necessary.11

Customary status 6. The ILC's approach did not aim from the outset at a codification of the existing law but rather at the development of the law while not taking State practice automatically into account: For it is one of the purposes of codification to provide for such case where the question is not regulated by the parties…The view which prevailed in the Commission, however, was that the numerical statistics [relative to the practice of States for ratification] may be a little misleading.12 7. However, the diverging views expressed during the Conference on the legal status of ratification as a customary rule were precisely based on constitutional State practice. According to some States, ‘a general rule based on the ratification would go against the current trend of international relations’,13 while other States maintained that ‘ratification must be recognized as a rule of customary international law, which must be applied even in the absence of an express stipulation in the treaty’.14 Both positions clash with respect to the legal value which needs to be allocated to international practice. One deems that ratification is customary so it is up to the Vienna Convention to codify and frame it as a (p. 291) written rule of international law, while the other considers ratification to be simply a mode among others expressing the desire to be bound by a treaty. In the latter view, international practice does not recognize ratification as a mandatory procedure because the opinio juris has not been verified. 8. International practice regarding ratification consolidated in the nineteenth century. Previously, it was merely an act confirming or certifying the powers given by the sovereign to his representative. It did not imply the approval of the treaty but it asserted the authorization to negotiate which was given to the representative. The sovereign did not decide on the content of the treaty but on compliance with the instructions of full powers. Because the representative was acting under a mandate, the represented authority retained the right to invalidate the work of his agent. In the legal literature, two different kinds of acts were distinguished. This original meaning of the term was referred to by President Basdevant when he wrote that ratification is: The diplomatic note in which the highest institution of a state, usually the Head of State, confirmed the signature of a treaty by the Plenipotentiary or certifies that this signature is confirmed by the competent body.15 9. De Wicquefort distinguished in this respect between ratification as ‘a private and special act’ and a treaty as ‘a common and public act’.16 Thereafter, this control has changed into a global approval of the treaty signed by the representative. For Bynkershoek, ratification aimed

essentially at taking into account the interests of the monarch who, as a subject of international law, could not agree to an international commitment that did not reflect his will.17 Hence, the monarch first had to examine the contents of any agreement which would become binding upon him upon entry into force. At the end of the eighteenth century, the powers of the monarch in terms of conclusion of treaties were no longer unlimited and consequently the full powers of negotiation and signature were no longer issued ‘subject to ratification’.18 10. Later, the technique of ratification was thoroughly transformed in order to become a means to enable parliamentary assemblies to control the executive in its competence to conclude treaties. The United States was the first country which included this limitation in its Constitution.19 The French revolutionaries used the same principle in their Constitutions of 1791 and 1793.20 This historical period was marked by the conclusion (p. 292) of a great number of formal treaties, and the rule according to which a signed treaty remained subject to subsequent ratification by the State was thus established. Ratification presupposes signature and exists merely to confirm it. It constitutes on behalf of the State the agreement to be bound by an act of consent expressed earlier on a temporary basis. Oppenheim asserted in this context that ratification is a rule of customary law: Ratification, although necessary in principle, is not always essential. Although it is now a generally recognized rule of customary international law that treaties require ratification regularly, even if this is not expressly stipulated, there are exceptions to the rule.21 11. The Permanent Court of International Justice (PCIJ) established this rule in its Advisory Opinion of 10 September 1929 concerning the territorial jurisdiction of the International Commission of the Oder: ‘Conventions, save in certain exceptional cases, are binding only by virtue of their ratification’.22 However, the Vienna Convention negotiators benefitted from the progress in the means of communication which was made during this era: At a time when a representative might be out of touch with his Government for prolonged periods, or unable to obtain final instructions before proceeding to signature, a fundamental rule presuming the necessity for ratification if no contrary indication was given, would be understandable and perhaps necessary. It is so no longer.23 12. Moreover, the development towards the conclusion of agreements in simplified form reduced the customary value of ratification as a way of expressing consent. In practice, States increasingly used a variety of means to express their consent to be bound. Thus, according to the Brazilian representative at the Vienna Conference, ‘[r]atification, this respectable institution of the last century, has just cleared’.24 13. All these factors, as well as the diversity of constitutional practice of States, diminished the scope of the customary value of ratification. The major political systems currently require ratification as the expression of State consent to be bound by a treaty but State practice in this respect is not uniform. The distinction between treaties where ratification is required and those where mere signature suffices, is not always clear in domestic law which sometimes requires the intervention of the Constitutional Court.25 In addition, the scope of ratification varies from one system to another. In some cases, the constitution non-exhaustively enumerates the fields where ratification is requested.26 Therefore, it could be argued that formal ratification of treaties is a customary rule but the differences in defining the very notion of a formal treaty and the variety of operational fields in which ratification is required prevent the emergence of a general rule. However, international norms, and by definition customary rules, cannot arise from (p. 293) diverging practices. Also, their substance cannot be specified by systematic reference to the domestic law. Likewise one cannot impose norms which would conflict with the constitutional order of certain States.27 Some constitutions do not contain any provisions relating to ratification which would imply that, for the same treaty, participating States may express their consent to be bound in different modes, one by ratification, the other just by signature…28 14. Finally, ratification is not the only mode of expressing consent to be bound by a treaty. In addition to the classical division between ratification and signature, State practice has identified other new modes; hence the purpose of Article 14 is also to reflect this variety. Acceptance was acknowledged as a new procedure to become a party to a treaty either as an act establishing State consent to be bound after signature, or without any prior signature.29 The idea of introducing approval in the practice of concluding treaties is ‘inspired by the constitutional procedures or practices of approving treaties which exist in some countries’.30 This is a newer technique which is often expressed in a clause providing for signature subject to the approval or in a clause stipulating that the treaty is open for signature without approval.31

B. Problems of interpretation Definition of ratification, acceptance, and approval 15. The Convention does not define the terms ‘ratification’, ‘acceptance’, and ‘approval’. It merely states that they represent the international act which expresses the States' consent to be bound by a treaty (Art. 2(1)(a)). ‘The problem of the vocabulary is then eliminated from the international norm, and it could be argued that the use of a vocabulary whatever is possible so long as its meaning is clear.’32 The definition proposed by Sir G. Fitzmaurice in his report of 1956 was based on the criterion of the purpose of the operation: ‘[r]atification is a

confirmation of a consent to a treaty already provisionally given by signature, and signifies a final intention to be bound by it’.33 However, this definition was not accepted. (p. 294) 16. The only precise provision to be found in Article 2, paragraph 1(a) deals with the distinction between internal and international ratification. In its 1966 report to the General Assembly, the Commission said that the term ‘ratification’ is used throughout the project to designate ratification at the international level. The ratification of an international treaty and its ratification in domestic law as according to constitutional rules are two distinct procedural acts made on two different plans.34 From the international point of view, ratification consists in communication, exchange, or deposit by the relevant executive body of a formal instrument reflecting the commitment of the State. However, the internal ratification is generally an act of the competent body, usually the legislature, which approves the treaty and authorizes the executive body to perform the international ratification.35 This procedure is not always required but when it is, there is in principle no international ratification without the internal one. 17. The contemporary constitutional systems deal with this issue according to the interpretation given to the principle of separation of powers. Under a presidential system with a rigid separation of powers, the legislative body generally applies a rigorous system of control over the executive and the legislative authorization covers all treaties concluded by the executive. Given the thoroughness and the weight of such a procedure, a practice has developed in the United States in the form of executive agreements which enter into force upon signature.36 In regimes renowned for a flexible separation of powers namely parliamentary systems, the permission of the legislature is required but limited to treaties of particular importance.37 By contrast, in the regimes of confusion of powers such as the socalled assembly regimes, internal ratification is often a competence of the legislature despite a reduced collaboration with the executive body.38 The other political regimes known as ‘mixed’ regimes, adopt a solution of sharing competences but which somewhat favours the executive.39 18. The federal form retained by some countries also has a certain influence on internal ratification. The federated States generally participate in the ratification of treaties while sitting in the upper chambers and a qualified majority of their representatives is often required to grant the executive authorization the power to ratify.40 Particular mention should be made of internal ratification of treaties establishing international integration organizations in respect of which international practice shows an increase of ratifications (p. 295) by referendum. This type of treaty implies in most cases a revision of the constitution in order to delegate specific State competences to supranational institutions. This explains the choice of what is called semi-direct democracy. The use of this technique occurs after previous approval of the treaty by the legislative power.41 19. In the debate on ratification, the Italian delegation at the Vienna Conference pointed out some confusion between international and domestic ratification. The Italian representative emphasized that the Commission's role is not to ‘determine how the consent of the State is expressed in accordance with the constitution, but what is the procedure for expressing the consent of the State internationally’.42 Also according to the same Italian delegation, the Commission does not adhere to the argument that State consent to be bound by a treaty must be governed by its constitution. The Commission thus seems to favour international ratifications over internal ones because both procedures are not put on the same footing.43 The Italian delegation simply highlighted the ILC's indifference concerning internal ratification. 20. Article 2, paragraph 1(b) of the Convention deals with ratification, acceptance, and approval. Consequently, the absence of a definition includes also these two other modes of expressing State consent to be bound by a treaty. ‘Everything comes down to the intentions of the States, provided that these intentions have sufficient clarity with regard to the usual practice.’44 Acceptance and approval have been the subject of a separate Article in the 1962 draft (Art. 14).45 Special Rapporteur H. Waldock justified this choice because these two modes form separate procedures for the conclusion of treaties; they are used as such in the treaty and can furthermore be found besides ratification in the same treaty. Acceptance and approval are not synonymous with ratification but some delegations suggested that provisions dealing with these matters be included in the same Article on ratification.46 21. The distinction between acceptance and ratification is not only based on terminology. Acceptance is a ‘simplified’ form of ratification which would allow the Government a further opportunity to examine the treaty without necessarily involving it in a submission of the treaty to the State's constitutional procedure for obtaining parliamentary sanction or concluding the treaty.47 (p. 296) Because of the variety of constitutional rules concerning ratification, the treaty provides for acceptance to make it as easy as possible for States to become parties.48 22. Acceptance features in two forms: one is similar to ratification when the treaty provides that it will be open for signature subject to acceptance, for example Article 26 on the General Agreement on Tariffs and Trade of 30 October 1947: 4. Each government accepting this Agreement shall deposit an instrument of acceptance with the Executive Secretary to the Contracting Parties, who will inform all interested governments of the date of deposit of each instrument of acceptance.49 The other form of acceptance is similar to adhesion when the treaty provides that it is open for acceptance without prior signature. Article 5, paragraph 1 of the Agreement on the establishment of an Advisory Council of Maritime Navigation of 30 October 1946 provided in

the same spirit that: This agreement will remain open for acceptance in the archives of the UK government and will enter into force when it has been accepted by 12 governments including 5 which will each have a total tonnage of at least one million gross tons.50

References 23. To differentiate between the two forms of acceptance, one should rely on the terminology used in the treaty to determine whether acceptance amounts to ratification or adhesion. The distinguishing criterion is by definition the existence of a prior signature but in some cases this distinction is somewhat blurred when the term ‘acceptance’ is used to refer to both ratification and adhesion or when acceptance is required regardless of prior signature. This is for example the case in Article 5 of the Protocol of 19 November 1948 bringing certain types of drugs under international control: 1. This protocol…remains open for signature or acceptance by all members of the United Nations and all non-member States that an invitation has been addressed by the Economic and Social Council. 2. Each State can: a) sign without reservation concerning the acceptance, b) sign subject to acceptance and subsequently accept, c) admit acceptance is the fact when an effective instrument of ratification has been deposited in the hands of the Secretary General of the United Nations.51 24. Approval can occur under two identical forms: a signature subject to approval or approval without prior signature. The term was mostly used by authors of the early twentieth century to describe the act of adhesion to a treaty: Approval of a treaty is that the approval third Power gives to this treaty, the favourable judgment in that door, it makes a testament to the merits of this treaty… The third Power, which approves contracts only not that any commitment, only it can no longer plead ignorance of the content of the treaty approved by it.52 (p. 297) 25. The Basdevant dictionary criticizes this variety of expressions: ‘the term acceptance should not be used to designate the ratification or accession, which would replace an end to equivocation clear terms’.53 Similarly: the use of the term approval…stems from a confusion between domestic procedure that allows the body representing the State abroad to ratify and the act of an external order that is his agreement for ratification. The wording should be avoided so that the term ratification sticks to the meaning established by custom.54 26. The issue of terminology did not draw the interest of the participants in the preparatory works of the Convention of 1969. However, some delegations pointed out that paragraph 2 of Article 14, which provides that the acceptance and approval apply ‘when conditions are similar to those which apply to ratification’, could be misleading. Since acceptance and approval have the same function as ratification, it is not necessary to dedicate a separate paragraph to them (Art. 11 in the draft of 1966). ‘If the three procedures perform the same function, they must be placed on an equal footing.’55 Yet, this suggestion was not accepted and the final version of Article 14 maintained the distinction between the three procedures.

Impossible to establish the intention of the States which participated in the negotiations on the choice of the mode of expression of consent to be bound 27. The examples listed in Article 14 presume that the use of ratification is necessary due to facts or acts stating the intention of the States participating in the negotiations. This intention can be deduced from an express provision in the treaty itself, a wilful agreement of the States expressed during the negotiations, subjecting the signature to ratification, or the exercise of the full powers of its representative. The scope of Article 14 is not comprehensive: cases may arise where the intention cannot be established. Hence, the issue is to determine whether ratification is the mandatory mode or whether it is possible to favour another mode of expressing consent. 28. A long debate on this issue divided the States at the plenary session of the Conference. Mr Bindschedler, representative of Switzerland, worded the issue as follows: However, the Commission believed that, given the very rare cases or conditions of consent to be bound cannot be established, it could simplify writing Articles 10 (signature) and 11 (ratification) by not formulating a rule…It is appropriate to include in the agreement a rule that would apply when nothing has been said about its entry into force, or when this issue is solved in ambiguous way or gives rise to contradictory interpretations.56 (p. 298) 29. Mr Virally, representative of France, deemed that: The problem with the Commission is that what should be a presumption in the few cases where the states concerned have not made a choice. It is necessary to provide a rule that would inform all States consequences in the absence of a specific mention in this regard.57

The debate focused on the choice between signature and ratification as a way of expressing consent to be bound by a treaty in case evidence of the intention of States parties to the negotiation was absent. The adoption of an additional rule would have filled the gaps of Articles 10 and 11. 30. One group of States considered it appropriate to set out a rule according to which consent was to be determined by signature in the absence of any specific indication in a treaty or related acts. Czechoslovakia, Sweden, and Poland introduced an amendment to Article 10 to this extent.58 They argued that in view of the growing practice of agreements in simplified form, consent to be bound by a treaty must be expressed by signature as a general rule.59 In addition, signature appeared legally safer than ratification because the latter was a cause of political problems thus adding to the struggle between the executive and the legislative. Furthermore, the opposite rule, namely to make ratification the default mode of expressing consent when nothing was provided in the treaty, would have been incompatible with the constitutional practice of some States. Mr Vallat, representative of the United Kingdom, pointed out that the current practice in the UK was that when a treaty did not include any information regarding the mode to express consent, signature was considered sufficient.60 31. However, an amendment from nine Latin American countries proposed an additional rule in favour of ratification.61 This amendment to Article 11 was based on the necessity to take into account the constitutional requirements of some States. Switzerland recorded an amendment in the same spirit: ‘[w]hen the mode of expression of consent to be bound can be prepared in accordance with the preceding articles, such consent is expressed through the ratification’.62 Behind this division arose a doctrinal debate.63 According to McNair and the Harvard Research Institute, ratification is imperative when the intention of States which participated in the negotiation cannot be established.64 On the other hand, for H. Blix, ratification tends to decrease due to the limited number of registered and published treaties in both the collection of the League of Nations and the United Nations, which means that the signature mode should prevail.65 32. This issue was already debated during the preparation of the 1962 draft when the Commission adopted a neutral draft without choosing between the two modes of (p. 299) expression of consent. In his 1956 report, Sir G. Fitzmaurice argued that the issue did not have any practical significance and he referred to the Lauterpacht report to show the limitations of the classical doctrine which made ratification a mandatory rule in terms of expressing consent.66 He repeated his position stated in 1934 according to which the silence of a treaty should be interpreted as the desire of the States parties to the negotiations to exclude ratification. ‘All leads to the conclusion that the residuary rule must be to the effect that, in the absence of such provision, it must be assumed that ratification was not intended.’67 He stated that, if it is accepted that there is a rule of international law favouring ratification, one might wonder why clauses providing for ratification continue to be inserted in treaties. He added that in all cases where ratification was favoured by States, this was expressly stipulated. 33. Some delegates expressed the opinion that the length of the debate was inversely proportional to the importance of the issue,68 and pointed out the danger of such an approach: the rule of signature or ratification as a suppletive rule would not obtain the required twothirds majority.69 Moreover, it was rather rare that the intention of the parties could not be established: State practice showed that treaties provide express provisions clarifying how the States that participated in the negotiations intended to express their consent to be bound. Czechoslovakia therefore withdrew its proposed amendment because ‘only a solution that would appeal to any presumption has a chance to collect a sufficiently broad acceptance’.70 On a proposal of Uruguay, a vote on the principle of the incorporation of a rule took place but the majority of States voted against this principle.71 34. The position adopted by the Conference was primarily imposed by the search for a compromise as the content of the text depended on its acceptance by as many States as possible. As expressed by Ian Sinclair: ‘[t]hus the commission had avoided the crucial issue of whether, when a treaty is silent on the matter, the consent of a state to be bound is expressed by signature or by ratification’.72 Was this the only possible option? Giving States which participated in the negotiations the opportunity to agree on the mode of expressing consent to be bound by a treaty was, of course, the consecration of consensualism. However it is obvious that the wording of Article 14 is rather ambiguous. The evidence of the parties' intention based on circumstances described in Article 14 could be difficult to establish because of its vague wording. The intention may also be ‘established’ without specifying the means of evidence. 35. Mrs Frankowska expressed her concern concerning the imperfect wording of Article 14. She noted that these provisions ‘do not eliminate those cases where it would be impossible to establish the intention of the State [on the choice of mode of expressing consent to be bound by the treaty]’.73 She argued that ‘if such cases occur in practice, they could not be settled by the Convention, because it did not establish, in his text, a general rule that applies to such situations’.74 As for us, we are inclined to conclude that the vagueness (p. 300) noted in the wording of Article 14 does not result in a lack of preciseness. It is rather a discretionary power at the States' disposal and a deliberate choice to respect the autonomy of the will of the negotiators. The advantage of this Article lies in the fact that the circumstances evidencing the intention of the States participating in the negotiations are not exclusive. This means that, in accordance with paragraph 1(b) of Article 14, acknowledging the States' intention in choosing ratification as a way of expressing consent can be done on the basis of other circumstances not covered by this Article. This is the very foundation of the logic based on the concordance of State consent. 36. To the best of our knowledge, no State dispute has so far focused on the absence of an 75

express provision on the mode of expressing consent.75 Assuming that there is doubt concerning the evidence of the intention of States which participated in the negotiations, past practice of expressing consent may provide such evidence.76 This enables us to assume that Article 14 has been able to withstand the test of time.77 The specific wording of Article 14(1) (d) has been discussed by the representative of Austria who recommended the deletion of the phrase ‘during the negotiation’ in paragraph (d). This position was justified by the confusion that this wording could cause in practice if a representative had expressed his choice for signature during the negotiations.78 Yet, this proposal was not accepted because it was obvious that such a situation means in contrario that this State did not express its intention to be bound by ratification. Therefore, Article 12, paragraph (c) concerning signature is applicable to such a State and not Article 14.

References

Legal status of ratification 37. The Convention did not impose a special procedure for ratification but has dealt with this issue very cautiously. Since the internal ratification is governed by constitutional law, the Commission avoided mentioning it. It rejected a suggestion to introduce a clause which would take into account States parties' constitutional practice in order to assess evidence of their intention: (p. 301) Too broad a reference to the Constitutional practice of individual States as evidence of intention might be interpreted as, in effect, bringing the requirements of internal law regarding the validity of treaties.79 This forms the basis for the legal status of imperfect ratifications in which case the Convention opted for a strict observance of the dualism between domestic law and international law.80 38. However, the Commission tried to regulate international ratification and devoted Article 15 of its 1962 draft to the procedures of ratification, adhesion, acceptance, and approval. This draft provision stated that ratification is proven by a written document which covers the entire treaty unless otherwise stipulated to apply to a part or parts of the treaty: it determines the text to which it refers and must be communicated or deposited with the depositary designated in the treaty.81 The communication procedure of the ratification act is in principle governed by the treaty itself. When the treaty is silent, the Commission distinguished between, on the one hand, cases where there is a depositary where the communication is established when filed and, on the other hand, cases where communication occurs during the exchange of ratification instruments.82 Finally, as a matter of domestic law, the Commission left the choice to decide on the form of the ratification act to the States parties in the negotiations. 39. State representatives questioned the necessity to devote a separate Article in the Convention to the ratification procedure. For the Japanese government, the content of this Article referred to ‘too technical and trivial characters to merit inclusion in the draft articles’. Hence, Japan suggested the separate Article to be deleted and its content included in the Article on the functions of the depositary.83 Luxembourg noted that the content of Article 15 would overlap with that of Article 23 concerning the entry into force of treaties. It suggested retaining this provision and amending Article 23 accordingly.84 Other representatives held that Article 15 provided significant legal rules and even that its content had to be strengthened. The US representative proposed clarifying the meaning of the written act which sealed the ratification as he deemed that such a written instrument should be signed by a competent authority to put an end to the practice of simply sealed acts. Similarly, he proposed requiring the depositary to notify the signing States of the specific deposit date of the instrument.85 The Mexican government also suggested an additional condition that would make ratification an unconditional act. It therefore discarded the ability of a State to make a reservation at the time of ratification.86 40. In order to take the views of the two groups of States into account, the Special Rapporteur, Sir H. Waldock, attempted to amend the text of Article 15. However, he realized that it was a provision dealing with some aspects governed by other Articles of the Convention. Thus, one could consider paragraph 3 as superfluous with regard to the (p. 302) content of the Article on the duties of a depositary (Art. 29 of the 1962 draft).87 Also, the introduction of the terms ‘unconditional ratification’ in paragraph (b) of this Article was dealt with in the Article on reservations (Art. 18 of the 1962 draft). Finally, the provisions concerning the communication of the ratification act were governed by the rules relative to the entry into force of the treaty (Art. 23 of the 1962 draft) and the legal effects of ratification (Art. 16 of the 1962 draft). For all these reasons, the Special Rapporteur proposed some amendments to Article 15 but, during the general discussion, the Article on the ratification procedure was simply deleted from the text of the Convention.88 41. The need for coherence within the Convention dictated such a choice, which originated from the dualism between domestic and international law on treaties. However, the lack of procedural rules concerning international ratification could be a source of legal insecurity and could account for the States' delay in ratifying. The famous example of the Montego Bay Convention of 10 December 1982 on the Law of the Sea perfectly illustrates this situation, even if its late entry into force is also due to fundamental divergences between States.89 Admittedly, the freedom of States in this respect grants them the right to refuse ratification. The legislature has the right to prohibit the executive to ratify; otherwise, the requirement of the dual degree procedure for formal treaties would become irrelevant. Similarly, the executive may decide not to take action following the parliament's authorization.90 However, as concerns the category of general treaties, the absence of a mandatory procedure for

ratification, at least on the time limits, may be unfortunate.

References 42. The development of international law depends on the importance which its subjects attach to general treaties. The reinforcement of the law organizing the reception techniques of these treaties into the domestic legal systems could represent an undeniable guarantee and should encourage their growth in number. States remain free as to their choice to participate in the conclusion of such treaties. However, for those that participated in the negotiations and chose to express their consent to be bound by the procedure of ratification, acceptance, or approval, Article 14 of the Convention should have imposed the conditions to be observed. The requirements attached to the period allowed to ratify the treaty should not undermine the authority of the will of States parties to the negotiation.91 Similarly, conditions expressly noting (p. 303) the refusal to ratify the treaty after a reasonable period of time would only consolidate legal certainty. The purpose of these requirements is to safeguard legal security and facilitate the entry into force of the treaty, especially when its entry into force is subjected to the obtaining of a set number of ratifications. In order not to block the entry into force, it would then be possible to subtract the amount of States which formally expressed their refusal to ratify from the amount of required ratifications because, as a general rule, the expression of consent to be bound by a treaty is realized through ratification. This two-stage procedure is by definition a long one and it can sometimes even be extended further to conceal a political choice behind the refusal to ratify. The international law on treaties would intervene to accelerate domestic ratification procedures without questioning their constitutional foundation or imposing a particular form for the act.

C. Legal effects of ratification, acceptance, or approval 43. At the international level, a State becomes permanently bound by a treaty only after notification or deposit of the instruments of ratification, acceptance, or approval. The exchanges of letters between the contracting parties and the notification or deposit of these instruments indicate that the procedures have actually been performed and, hence, confer the international character to ratification, acceptance, or approval. Thus, the expression of consent to be bound definitely binds the State qualifying it as party to the treaty. This does not necessarily imply the submission of the State to the treaty commitments because the treaty only acquires a binding force once it enters into force. In practice, the consent to be bound by a treaty and its entry into force are two stages which may not necessarily coincide. 44. This leads us to distinguish between two possible scenarios. The first case concerns the expression of consent to be bound prior to the entry into force of the treaty. It is a definitive commitment of the State that requires, until its entry into force, to refrain from acts designed to hamper its future performance or thwart its objectives. This obligation of good faith begins when the State takes part in the negotiation of the treaty and is confirmed subsequently, by authenticating the text. This obligation continues and is even enhanced when the State announces its intent to be bound after the ratification, approval, or acceptance of the treaty.92 Accordingly, when the treaty eventually enters into force, it becomes instantly and automatically effective with respect to that State without the State having to perform other acts or reconfirm its consent. 45. The second scenario is the possibility of expressing consent to be bound concurrently or subsequently to the entry into force of the treaty. In practice, if bilateral treaties and restricted multilateral treaties require the commitment to be bound by all signatories, less ratifications (or similar acts) by States parties are required for the entry into force of open multilateral treaties. To offer States the time to prepare the entry into force, some treaties provide for an implementation period following the notification or the deposit of instruments of ratification, acceptance, or approval. This second scenario concerns only (p. 304) those options which do not require this additional time. In this case, when expressing its consent to be bound, the State directly and immediately assumes the obligation to carry out the provisions of the treaty and acquires a right to its advantages and adherence to its provisions by the other parties. * IMED FRIKHA ** MOUNIR SNOUSSI ***

RAFÂA BEN ACHOUR

Footnotes: 1 Declaration of Mr Todoric, the representative of Yugoslavia, Official Records, CRA, meeting of 8 April 1968, p 98, para. 20. 2 Ibid, pp 188–9. 3 Ibid, p 188, para. 4. 4 Ibid, p 190, para. 5. 5 See eg the position of the representatives of Austria, Finland, Denmark, and Sweden, A/CN.4/177; Sir H. Waldock, YILC, 1965, vol. II, p 36. 6 Some authors proceeded to this distinction to arise the existence of the principle of the obligatory ratification since the agreements in simplified form were limited. See on this point, P. Freymond, La ratification des traités et le problème des rapports entre le droit international et le droit interne (Lausanne: Faculté de droit de l'Université de Lausanne, 1947). 7 Waldock Report, YILC, 1965, vol. II, p 38, para. 3. 8 Ibid.

9 Ibid, p 39, para. 5, emphasis added. 10 Report of the ILC to the General Assembly, YILC, 1966, vol. II, p 198, para. 7. 11 Ibid, p 197, para. 1. 12 Report of the ILC to the General Assembly, YILC, 1962, vol. II, p 172, paras 4 and 5. 13 Mr Haraszi, the Hungarian representative, Official Records, CRA, meeting of 8 April 1968, p 95, para. 28. 14 Mr Alrawi, the representative of Iraq, ibid, para. 24. See also Mr Alvarez, representative of Uruguay, ibid, p 93, para. 12. 15 J. Basdevant, Dictionnaire de la terminologie du droit international (Paris: Sirey, 1960), p 500; J. Salmon (ed.), Dictionnaire de droit international public (Bruxelles: Bruylant/AUF, 2001), pp 928–9. The original French version states as follows: l'acte diplomatique par lequel l'organe supérieur d'un Etat, d'ordinaire le chef de l'Etat, confirme la signature apposée sur un traité par son plénipotentiaire ou atteste que cette signature est confirmée par l'organe compétent. 16 M. De Wicqueford, L'ambassadeur et ses fonctions (The Hague, 1724), vol. II, p 385, cited by M. Frankowska, ‘De la prétendue présomption en faveur de la ratification’, RGDIP, 1969, pp 62–88, p 64. 17 Ibid, p 65. 18 Nguyen Quoc Dinh, P. Dailier, and A. Pellet, Droit international public (7th edn, Paris: LGDJ, 2002), p 139, para. 78. 19 Article II of the Constitution of 1787: ‘He (the President) shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur’. 20 Article 1, para. 3 of the Constitution of 3 September 1791, Ch. III, 1st section: ‘Il appartient au Corps législatif de ratifier les traités de paix, d'alliance et de commerce; et aucun traité n'aura d'effet que par cette ratification’. Article 1, para. 55 of the Constitution of 24 June 1793: ‘Sont désignés sous le nom particulier de décret, les actes du Corps législatif, concernant…la ratification des traités’. 21 L. Oppenheim, International law (London: Lauterpacht edn, 1955), p 906. 22 Judgment n 16, The Oder Commission, p 20. 23 G. Fitzmaurice, A/CN.4/101, YILC, 1956, vol. II, p 124, para. 71. 24 Mr Amado, the representative of Brazil, Official Records, CRA, meeting of 8 April 1968, p 96, para. 35. 25 eg the decision of the French Constitutional Council of 19 June 1970 (decision no. 70–39, Luxembourg Treaty, Rec. 1970, p 15) and the decision of 30 December 1976 (decision no. 76– 71, European Communities Assembly, Rec. 1976, p 15) assimilate the decisions of the European Communities Council to ‘international engagements’. 26 eg the list of Art. 53 of the French Constitution of 1958 dealing with treaties that have to be submitted to the Parliament does not mention alliance, non-aggression. and mutual assistance treaties. See on this topic Nguyen Quoc Dinh, P. Dailier, and A. Pellet, supra n 18, p 153, para. 90. 27 Mr Vrally, Official Records, CRA, meeting of 8 April 1968, p 96, para. 6. 28 Sir Humphrey Waldock, Fourth Report on the Law of Treaties, A/CN.4/177 and Add.1 and 2, YILC, 1965, vol. II, p 39. See also supra, the commentary on Art. 11. 29 eg Art. 4 of the Protocol amending the Convention of Geneva of 14 December 1928 relating to economic statistics: The States may become Parties to the present Protocol by: a) Signature without reservation as to acceptance; b) Signature with reservation to acceptance, followed by acceptance; c) Acceptance. Identical provisions were envisaged in other conventions such as the Protocol amending the International Agreement for the suppression of the White Slave traffic signed at Paris on 4 May 1910, the Protocol amending the Slavery Convention signed at Geneva on 25 September 1926. See A/CN.4/154, Resolution of the General Assembly concerning the Law of the Treaties, YILC, 1963, vol. II, p 16. Report of the ILC to the General Assembly, YILC, 1962, vol. II, p 174, para. 3. 30 Report of the ILC to the General Assembly, YILC, 1966, vol. II, p 198. The Handbook of Final Clauses (ST/LEG/6, pp 7–19) gives examples of such clauses. 31 P. Reuter, Introduction au droit des traités (Paris: PUF, 1985, Collection Que sais-je?), p 56, para. 94. The original French version states as follows: ‘Le problème du vocabulaire est ainsi éliminé de la règle internationale et l'on pourrait dire que le recours à un vocabulaire quelconque est possible pourvu que sa signification soit claire’. 32 A/CN.4/101, YILC, 1956, vol. II, p 113. 33 Id. 34 YILC, 1966, vol. II, p 197, para. 1. See also the commentary on Art. 2 of Vienna Convention in this work. 35 Report of G. Fitzmaurice, A/CN.4/101, YILC, 1956, vol. II, p 113.

36 P. Cras, ‘Les executive agreements aux Etats-Unis’, RGDIP, 1972, p 973. 37 D. Lasok, ‘Les traités internationaux dans le système juridique anglais’, RGDIP, 1966, p 961. 38 Article 85 of the Russian Constitution. 39 For the Tunisian example, see G. Gherairi and N. D. Jaibi, ‘Le droit international dans la constitution tunisienne’ in R. Ben Achour and S. Laghmani (eds), Droit international et droits internes, développements récents (Paris: Pedone, 1998), pp 107–32; for the Algerian example, see M. Bedjaoui, ‘Aspects internationaux de la Constitution algérienne’, AFDI, 1977, p 75; for the case of Morocco, see H. Ouazzani, La politique marocaine du droit des traités (Paris: LGDJ, 1982). 40 In some cases, federate States are authorized to conclude international treaties: the Swiss Constitution of 1874 authorizes the cantons to conclude treaties if the object concerns public economy, neighbourhood relations, and police; the fundamental law of 8 May 1949 authorizes Länder to conclude agreements with foreign States, within the limits of their legislative competence and with the assent of the federal government; the Belgian Constitution as amended on 17 February 1994 grants the Communities and Regions an important capacity to conclude international treaties. Paragraph 3 of Art. 167 states to this end that the governments of the Communities and Regions can each conclude treaties related to the matters which fall under their competence. These treaties only obtain effect after having received the approval of the council, RBDI, 1994, p 5. 41 eg Art. 2 of the Tunisian Constitution of 1959 relating to the ratification of treaties concluded within the framework of the Great Arab Maghreb; Art. 11 of the French Constitution of 1958 relating to the treaties comprising approval of an agreement of the community, or tending to authorize the ratification of a treaty which would affect the work of the institutions, without being against the constitution. 42 Official Records, CRA, meeting of 8 April 1968, p 97, para. 13. 43 A/CN.4/177, YILC, 1965, vol. II, p 37. 44 P. Reuter, supra n 31, p 56, para. 94. The original French version states as follows: ‘Tout se réduit aux intentions des Etats, pourvu que ces intentions aient une clarté suffisante au regard de la pratique habituelle’. 45 ‘A State may become a party to a treaty by acceptance or by approval in conformity with the provisions of Articles 8 and 9 when: a) The treaty provides that it shall be open to signature subject to acceptance or approval and the State in question has so signed the treaty; or b) The treaty provides that it shall be open to participation by simple acceptance or approval without prior signature.’ Report of the ILC to the General Assembly, YILC, 1962, vol. II, p 173. 46 Declaration of the representative of Japan, Waldock Report, A/CN.4/177, YILC, 1965, vol. II, pp 37 and 40. 47 Report of the ILC to the General Assembly, YILC, 1962, vol. II, p 174. 48 Ibid. 49 UNTS, vol. 55, p 275. 50 UNTS, vol. 11, p 113. 51 UNTS, vol. 44, p 285. Protocol Bringing under International Control Drugs Outside the Scope of the Convention of 13 July 1931 for Limiting the Manufacture and Regulating the Distribution of Narcotic Drugs, as amended by the Protocol signed at Lake Success on 11 December 1946. 52 P. Pradier-Fodere, Traité de droit international public européen et américain, 1885–1906, para. 1144, cited by J. Basdevant, supra n 15, p 49. The original French version states as follows: L'approbation d'un traité est l'agrément qu'une Puissance tierce donne à ce traité, le jugement favorable qu'elle en porte, un témoignage qu'elle rend au mérite de ce traité…La Puissance tierce qui approuve ne contracte pas là aucun engagement; seulement elle ne peut plus invoquer son ignorance du contenu du traité approuvé par elle. 53 J. Basdevant, supra n 15, p 6. The original French version states as follows: ‘Il convient de ne pas se servir du terme acceptation pour désigner la ratification ou l'adhésion, ce qui serait substituer un terme équivoque à des termes clairs’. 54 Ibid, p 49. The original French version states as follows: L'emploi du terme approbation procède d'une confusion entre mesure d'ordre interne qui autorise l'organe qui représente l'Etat à l'extérieur à ratifier et l'acte d'ordre externe qu'est la ratification par lui donnée; il devrait être évité pour s'en tenir au terme ratification dont le sens est consacré par l'usage. 55 Declaration of Mr Cuena, the representative of Spain, Official Records, CRA, meeting of 9 April 1968, p 103, para. 17. In the same way, the declaration of the representative of Sierra Leone, ‘The drafting comity could examine if it would not be preferable to group the three

concepts in the same paragraph’, ibid, para. 22. 56 Official Records, CRA, meeting of 8 April 1968, p 93, para. 6. 57 Ibid, p 96, paras 6 and 7. 58 A/CONF.39/C.1/L.38, Add.1 and 2. 59 Mr Smejkal, Official Records, CRA, meeting of 8 April 1968, p 93, para. 2. 60 Ibid, p 94, para. 17. 61 A/CONF.39/C.1/L.105. 62 A/CONF.39/C.1/L.87. 63 For the origins of the controversy, see F. Dehousse, La ratification des traités (Paris: Sirey, 1953), p 83 and M. Frankowska, ‘De la prétendue présomption en faveur de la ratification’, RGDIP, 1969, pp 64 and 70. 64 Lord A. McNair, Law of Treaties (Oxford: Clarendon Press, 1964), p 133; Harvard Law School Research in International Law, III, ‘Law of treaties’, AJIL, vol. 29, 1935, p 770; in the same category, P. Faucille, Traité de droit international (Paris: Rousseau edn, 1926), p 320: ‘La nécessité de ratification est toujours considérée comme sous-entendue’; L. Oppenheim, International law (ed Lauterpacht) (London, 1995), p 903. 65 H. By, ‘The requirement of ratification’, BYBIL, 1953, p 380; in the same category, H. Kelsen, Principles of International Law (New York: Rhinhart, 1952), p 332. 66 Lauterpacht Report, A/CN.4/87, commentary on Art. 6. 67 A/CN.4/101, YILC, 1956, vol. II, p 123, para. 69, commentary on Art. 32. 68 H. Blix, Official Records, CRA, meeting of 8 April 1968, p 95, para. 31. 69 M. Ogundere, representative of Nigeria, Official Records, CRA, meeting of 8 April 1968, p 98, para. 22. 70 Official Records, CRA, meeting of 9 April 1968, p 103, paras 7 and 8. 71 53 positive votes against 25, with 16 abstentions. Ibid, p 103, para. 14. 72 I. Sinclair, The Vienna Convention on the Law of Treaties (Manchester: Manchester University Press, 1973), p 37. 73 M. Frankowska, supra n 63, p 87. 74 Ibid, emphasis added. 75 In the North Sea Continental Shelf case, the dispute related to the Geneva Convention of 1958 on the continental shelf, which required the ratification as the mode of expression of the consent to be bound. The International Court of Justice held that the Federal Republic of Germany was not bound by this Convention since it had not carried out the prescribed formality: It is not lightly to be presumed that a State which has not carried out these formalities, though at all times fully able and entitled to do so, has nevertheless somehow become bound in another way. (ICJ Collection, 1969, p 26; emphasis added) 76 A proposal in this direction of Sir Waldock laid out that: Among the circumstances which may be taken into account under paragraph 1 (b) is any established practice of the States concerned in concluding prior treaties of the same character between themselves. (A/CN.4/177, YILC, 1965, vol. II, p 39, para. 7) 77 To the contrary, see the opinion of M. Frankowska, according to which: if the stipulations in question remain unchanged in future convention, it will be really difficult to qualify as success the results of the codification of the law of treaties in this limited sector but not denied of importance. (supra n 63, p 88) The original French version states as follows: si les stipulations en cause demeurent inchangées dans la future convention, il sera vraiment difficile de qualifier de succès les résultats de la codification du droit des traités dans ce secteur limité mais non sans importance. 78 M. Zemanek, A/CONF.39/C.1LSR.17. 79 Waldock Report, A/CN.4/177, YILC, 1965, vol. II, p 39, para. 7. 80 See in this work, the commentaries on Arts 27 and 46. 81 Text of Art. 15, Report of the ILC to the General Assembly, YILC, 1962, vol. II, p 174. 82 Ibid. 83 Waldock report, A/CN.4/177, YILC, 1965, vol. II, p 42. 84 Ibid, p 42. 85 Ibid. 86 Ibid. The representative of Mexico referred to Art. 6 of the Convention on the treaties drawn up by the sixth international conference of the American States which requires a similar condition. 87 Article 15, para. 3 of the 1962 draft:

When an instrument of ratification, accession, acceptance or approval is deposited with a depositary in accordance with paragraph 2 (b) above, the State in Question shall be given an acknowledgement of the deposit of its instrument, and the other signatory States shall be notified promptly both of the fact of such deposit and the terms of the instrument. (YILC, 1962, vol. II, p 174) 88 Waldock Report, A/CN.4/177, YILC, 1965, vol. II, p 43; see in this work, the commentaries on Arts 16, 17, 19, 77, and 78. 89 The entry into force of the Convention of Montego Bay was to take place 12 months after the 60th ratification (Art. 308, para. 1). However, the Convention only came into effect in 1994, 12 years after its adoption. Similarly, the Convention on the succession of States in respect of treaties (signed in Vienna on 22 August 1978) and the Convention on Succession of States in respect of State Property, Archives and Debts (adopted in Vienna on 8 April 1983) did not come into effect until to date. 90 In the case relating to Certain German Interests in Polish Upper Silesia, the PCIJ allowed for the possibility of a State to refuse ratification. However it indicated that the good faith obligation applies to the conduct of the State signatory during the time preceding its decision whether to ratify: Series A, no. 7, p 30. 91 According to International Labour Organization (ILO) practice, each member State must submit Conventions within one year to 18 months to the appropriate national authorities (Art. 19, para. 5 of the Convention of the ILO). See: http://www.ilo.org. This does not, however, entail any obligation to ratify a Convention. 92 See also the commentary on Art. 18, para. 2, infra. * Professor, Faculté des Sciences Juridiques, Politiques et Sociales de Tunis; Former President of the University of Sciences, Technology and Medicine of Tunis; Former General Secretary of the International Academy of Constitutional Law, Tunisia. ** Assistant at the Faculté des Sciences Juridiques, Politiques et Sociales de Tunis, Tunisia. *** Maître—Assistant at the Faculté de Droit et de Science Politique de Tunis, Tunisia.

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Volume I, Part II Conclusion and Entry into Force of Treaties, s.1 Conclusion of Treaties, Art.15 1969 Vienna Convention Jean-François Marchi From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Codification — Customary international law — Treaties, ratification

(p. 308) 1969 Vienna Convention Article 15 Consent to be bound by a treaty expressed by accession The consent of a State to be bound by a treaty is expressed by accession when: (a) the treaty provides that such consent may be expressed by that State by means of accession; (b) it is otherwise established that the negotiating States were agreed that such consent may be expressed by that State by means of accession; or (c) all the parties have subsequently agreed that such consent may be expressed by that State by means of accession. A. General characteristics 309 Object and purpose 309 Means of accession 309 Terminology 310 Accession and adherence 310 Accession and acceptance 312 Customary status 313 B. Problems of accession to a treaty 315 The moment of accession 315 Accession ‘subject to ratification’ 315 C. The right of accession 316 Absence of the principle 317 Problem of the ‘any State’ formula 317 Absence of a general right 320 Accession in practice 322 ‘Closed’, ‘semi-closed’, and ‘open’ treaties 323 Accession to a treaty constituting an international organization 326 D. Effects of accession 327 Does accession immediately grant the status of a party to a treaty? 328 Does accession confer the same rights on the adherent State as those enjoyed by States already parties to the treaty? 330

Bibliography Ferrari-Bravo, L., ‘Natura giuridica dell'adezione agli accordi internazionali’, Ann IDI, 1966, pp 183–96 Lukashuk, I. I., ‘Parties to Treaties: the Right of Participation’, RCADI, 1972-I, vol. 135, pp 231–328 Mathy, D., ‘Participation universelle aux traités multilatéraux’, RBDI, 1972, pp 529–67 Zannini, L'adezione di trattati internazionali (Pavia: Università di Pavia, Istituto di esercitazioni nelle scienze giuridiche e sociali, Studi nelle scienze giuridiche e sociali, no 28, 1946)

(p. 309) A. General characteristics Object and purpose Means of accession 1. Article 15 of the Vienna Convention aims to make access to a treaty possible for those States that did not take part in the negotiation of that treaty, or that participated therein but did not sign the treaty.1 The Article involves a simple process by which a State wishing to become party to a treaty may, by a single act, express its definite consent to be bound. This is the traditional process of accession, which the Convention endeavours to facilitate. 2. Together with signature and ratification, accession is one of three principal ways to express consent to be bound by a treaty.2 It is a deferred process3 as it generally intervenes after the period allocated for signature of the treaty has lapsed. Whether the act of signing aims to express a State's consent to be bound,4 or simply constitutes an initial step preceding the ratification of a treaty,5 signature is generally only possible in two circumstances: either immediately after the adoption of the text or, where the text itself allows, in a brief period following its adoption. Therefore, in principle, where a State has not participated in the negotiation of or adopted a text, it cannot sign (although rare cases6 do exist of treaties which 7

stay open to signature indefinitely).7 Further, in the case of treaties concluded by a lengthy process, ratification and approval are also not available to a State that has not participated in the treaty's negotiation, for these procedures intend to confirm a State's prior signature to a treaty.8 Accession is therefore the only means by which a State in this position can become a party to a treaty.

References 3. Accession is a simple process; a State's consent to be bound by a treaty must be expressed only once.9 The reason for this simplicity stems from the process's belated character. A State (p. 310) that decides to adhere to a treaty has all the time necessary to make its decision, to evaluate the implications of the treaty in question, and to satisfy itself regarding any domestic constitutional concerns. As such, the two-stage process of signature and ratification is unnecessary for accession to a treaty, as are the formalities that govern the ratification process. 4. If accession is reserved for those States that have not participated in the negotiation of a treaty and have therefore not been permitted to sign, this process may also be available to those signatories that did not ratify the text within the prescribed time limits.10 Further, accession may also constitute the only way to become a party to a treaty where the text itself prohibits signature for all States, including those that helped facilitate its adoption. In his First Report, Sir Gerald Fitzmaurice proposed two situations regarding this latter case. First, signature may be prohibited in the case of treaties that are incorporated into the Final Act of a conference or in the resolution of an international organization without any provision for their signature;11 or, secondly, where, for any other reason, the States concerned decided to dispense with the need for signature.12

References

Terminology 5. The questions of terminology arising from this notion of accession involve the differences between the terms accession and adherence, on the one hand, and between the terms accession and acceptance, on the other. Various reasons explain the ambiguity which arises from these terms, even if it is not particularly relevant today.

Accession and adherence 6. In the past, the dominant opinion in doctrine considered accession and adherence as two different processes.13 For some, accession referred to a simple, formal declaration of a State's intention to adopt the provisions of a treaty, whereas adherence concerned the act of becoming a party to a treaty.14 For others, accession was less final than adherence, for in the accession process the State in question was obliged only to avoid hindering the execution of a treaty.15 Finally, for some, adherence required a State's acceptance of all the (p. 311) provisions of a treaty, whereas accession required the acceptance of only a part thereof.16 Yet the diplomatic usage of these terms appeared undisciplined. This fact, combined with their interchangeable use in practice, led some commentators to consider that the terms were equivalent, or at least that the theoretical distinctions raised by both terms were of little use.17 The equivalence of the terms was later confirmed in a report adopted on 24 March 1927 by the League of Nations Committee of Experts for the Progressive Codification of International Law,18 following which it was readily accepted that these two words were synonyms.19 This point no longer gives rise to any real controversy. It is simply accepted today that accession is the most common form of the various methods of adherence to a treaty.20

References 7. In the work of the ILC on this subject, the question of a distinction between the terms accession and adherence is mentioned only once. Furthermore, it is not based on the distinction found in the nineteenth-century literature. This question was raised during an examination of the ILC's work in 1965, when a delegation suggested that a distinction between accession and adherence be introduced into the future Article 15 (Art. 13 of the 1965 project). According to this view, the word adherence should be restricted to the admission of a State to a closed multilateral treaty which required the fulfilment of certain conditions, whereas accession should only be used where a State was admitted to an open multilateral treaty where no such formalities were required.21 The Rapporteur Sir Humphrey Waldock expressed his concern as to ‘whether there is any such general usage in the employment of the terms “accession” and “adherence” as would justify the (p. 312) Commission in introducing into the Article the refinement suggested’.22 Considering the uncertainty surrounding the use of these terms in conventional practice,23 Sir Waldock's position appears largely justified and the question has not been raised since.

References 8. Finally, the indiscriminate use of the terms accession and adherence is supported by the fact that the word ‘adhesion’ in the English language is not generally used in the same sense as ‘adhésion’ in French. Generally, the word ‘accession’ is used in English, as demonstrated in the English version of Article 15 of the Vienna Convention24 or in the Project established by Harvard University in 1935.25 This equivalence between the terms ‘adhésion’ in French and

‘accession’ in English serves to maintain the sometimes interchangeable use of the two terms today.

Accession and acceptance26 9. In conventional practice, the term acceptance, like approval elsewhere, has recently been used far more than that of accession.27 The distinction between accession and acceptance also gave rise to debates of terminology during the work of the ILC. These arguments result again from a somewhat undisciplined use of the terms, indifferent to their separate denominations28 from the moment that the State's intentions regarding accession are sufficiently clear.29 Yet, unlike the correlation between the words accession and adherence (these words could be taken as synonyms, as previously discussed), a distinction between accession and acceptance was established by the 1969 Convention, which considers them as two distinct legal concepts. 10. In his First Report in 1956, Sir Gerald Fitzmaurice approached acceptance in two ways: as a simplified form of ratification, a deferred means of consenting to a treaty; and in some cases as a process identical to accession, as a means to express immediate consent.30 Principally based on this view, it was suggested by a delegation some years later that as either a form of ratification or accession was being considered, all reference to acceptance should be removed.31 However this view was not adopted and the 1969 Convention considered accession and acceptance as two different concepts. Accession, as has been seen, is a simple process by which a State wishing to become party to a treaty may express, by a single act, its definite consent to be bound. Whereas acceptance, or approval, constitutes one method of deferred consent as part of a ‘long’ or two-stage process. Used in (p. 313) domestic constitutional vocabulary since the Second World War, acceptance is an act, or procedure, whereby a State office, hierarchically inferior to the Head of State,32 confirms that State's consent to be bound. Thus the process strongly resembles ratification, being somewhat less formal but producing the same legal effects at the international level.33 For this reason, acceptance is dealt with in Article 14(2) of the Vienna Convention, directly alongside ratification. 11. Acceptance produces the same legal effects as accession. Yet it sets itself apart as it refers to a different legal concept; that of deferred consent as part of a long process.

Customary status 12. Did accession benefit from a customary status before the adoption of the Vienna Convention? What has been the practice in this area since? 13. In 1926, accession was characterized in literature as one of the ‘innovations sérieuses’34 (‘serious innovations’) of the law of treaties. Categorized as such, it could easily be thought not to belong to customary law. This view clearly considered accession as a direct means of allowing a State to become a party to a treaty immediately, without needing the acceptance or consultation of those States already parties to it. Perceived in this way, accession may have appeared innovative. During the period between the two World Wars, the international society was limited and far more united than today, preferring to operate through processes of consensus and unanimity.35 Accession was therefore in complete contrast—as a process requiring the will of only one State which produced immediate effects. In this context the uniqueness of the process was evident. 14. Yet several factors alter the relevance of this argument. First, this notion of accession did not receive unanimous support. At the time, authors were divided and it was considered by a number of commentators that ‘l'adhésion [était] subordonnée à l'assentiment préalable unanime des Etats entre lesquels la convention [était] en vigueur’36 (‘accession [was] subject to the prior unanimous approval of those States amongst which the convention [was] in force’). As such, there was nothing innovative about the accession process and it was often interpreted this way.37 Secondly, this view of the accession mechanism was undoubtedly not the most accurate with reference to the true sense of the term. This was alluded to in the work of the ILC, as previously discussed, concerning debates over the words accession and adherence. It was suggested that the term accession be reserved to the admission of a State to an ‘open’ multilateral treaty where no particular (p. 314) formalities were required.38 Rapporteur Sir Humphrey Waldock expressed his doubts, as noted,39 and this view was not retained.

References 15. Finally, looking ahead, it is difficult today to consider accession as a mechanism producing a truly immediate effect that is indifferent to the position of those States already parties to the treaty in question. The assertions made in 1926, which saw accession as an innovative process, were due to a construction of this term which is no longer recognized. On the contrary, according to the meaning endorsed by the Vienna Convention, it appears that accession has been used for a long time in conventional practice. If accession is accepted as a simple process allowing a State to express its definite consent to be bound, with the same scope as signature and ratification,40 it can be considered as benefiting from a customary status since the time the ILC's work began. Reference to this status is also found in some earlier treaties41 and in nineteenth-century literature,42 identified as such or in other ways. For this reason, the Commission has not encountered any great difficulties adopting, in principle, accession as set out in Article 15. Certain terms of the provision and the question of the ‘any State’ formula (considered infra) are all that has been discussed thus far. Since 1969, the use of the accession mechanism has continued to a large extent and in a number of areas. In the field of disarmament, the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and their Destruction of 13 January 1993 (Art. 20) may be cited; in the area of environmental protection, the United Nations Framework

Convention on Climate Change of 9 May 1992 (Art. 22), the Convention on Biological Diversity of 5 June 1992 (Art. 35), and, further, the Protocol on Environmental Protection to the Antarctic Treaty of 4 October 1991 (Art. 22). In the field of liability, accession can be found in the Convention on International Liability for Damage Caused by Space Objects of 29 March 1972 (Art. 24). Accession is also envisaged as a means to express consent to be bound in the United Nations Convention on the Laws of the Sea of 10 December 1982 (Arts 305 and 307). Accession is also found in treaties concerning regional organizations: for example, the American Convention on Human Rights of 22 November 1969 (Art. 74) and the African Charter on Human and Peoples' Rights of 27 June 1981 (Art. 63). Therefore, the application of the Vienna Convention in practice is clearly (p. 315) without ambiguity. Finally, it must be noted that the Millennium Report of the Secretary-General of the United Nations has further welcomed this increasing trend in the field of multilateral treaties.43

References

B. Problems of accession to a treaty The moment of accession 16. At the time when the work of the ILC began, leading to the 1969 Convention, the question was raised as to whether the process of accession should be limited to treaties already in force. According to one view, accession was only possible once a treaty had come into force;44 the opposite situation remaining an exception.45 On the contrary, in the view of Special Rapporteur Sir Hersch Lauterpacht, practical considerations were aimed at avoiding such distinctions on this point. He thus emphasized that ‘[m]any treaties might never enter into force but for accession’,46 suggesting the need for flexibility and believing that the established practice of States in this area further supported his view. A 1959 note from the United Nations Secretariat confirms this analysis of the use of accession: ‘it seems clear that accession, at least in United Nations treaty-making practice, does not presuppose the existence of a treaty in force’.47 As this note highlights, the situation seen as exceptional by some is in fact very common in the practice of the United Nations. Thus the question was resolved. Accession was not subject to the treaty's entry into force48 and this latter view was not even granted a subsidiary role.49

Accession ‘subject to ratification’ 17. In discussions relating to the accession mechanism itself, the ILC was also interested as to whether it should set aside accessions ‘subject to ratification’,50 to be determined by the established practice of States. In this situation, a document is submitted by a State in the form of an instrument of accession, providing that it is ‘subject to ratification’. It must be determined whether this is equivalent to an accession, or whether this should be distinguished as being of a different nature. (p. 316) 18. This procedure may be viewed as an anomaly,51 for accession is a process designed to be carried out immediately and does not require any subsequent confirmation. In any case, this form of accession is not common.52 Considering this question in 1927, the League of Nations Assembly resolved to declare its indifference, recognizing that this was a practice it should ‘neither encourage nor discourage’.53 According to the ILC in its own deliberations, this practice was not, in reality, relevant to the concept of accession. In his First Report, Sir Gerald Fitzmaurice opined that ‘[a]n accession subject to ratification is not an accession, and also represents an attempt to secure the status of a signatory after the moment for that has gone by’.54 The question did not hold the Commission's attention for long. Rather, the Secretary-General's position, in his capacity as depositary of multilateral treaties, was soon adopted. Accordingly, the accession instrument was viewed simply as an ‘information de l'intention du gouvernement de devenir partie’.55 Thus an accession ‘subject to ratification’ or to any other act of confirmation does not reflect the mechanism found in Article 15, whereby accession results from a single act. As such, no trace of this concept is found in the Vienna Convention.56

C. The right of accession 19. Whilst Article 15 aims to provide access to a treaty by facilitating different means of accession, the question of a possible right of accession, outside the Convention's provisions or implicit or explicit consent,57 cannot be found. Yet this question has been the subject of much discussion since the drafting of this Article and has given rise to considerable (p. 317) controversy. It is clear that a right of accession, though the so-called ‘any State’58 formula, does not exist. As a result, a wide variety of approaches have been adopted in practice.

Absence of the principle Problem of the ‘any State’ formula 20. Does a right of accession exist for those States not already parties to a treaty? Should a general principle, according to which treaties are open to ‘any State’, simply be assumed? This question has been raised with regards to general multilateral treaties, negotiated on a universal scale, the purpose of which is to impose norms of conduct applicable to all States. In the case of such treaties, the question is asked as to whether they should be open to every State, even in the absence of particular provisions in the text, in order to facilitate the greatest

possible participation. 21. Before the ILC's work on the law of treaties began, it was accepted that a right of accession to a treaty did not exist in a general sense, if it was not provided for in the treaty or in another agreement between the parties.59 This assertion can be found in the Special Rapporteurs' earlier works.60 Yet from 1959, the question of a ‘basic general right to participate in treaties’61 was approached head-on.62 It resulted notably from the historical context in which the Commission's work unfolded. In a general context of serious antagonism between East and West, this period saw some western States oppose the recognition of a large number of new States by virtue of their accession to certain treaties.63 The process of decolonization also resulted in the creation of many new States, raising the question of whether such States could become parties to treaties that were concluded before their accession to independence but that had since been closed to signature, (p. 318) acceptance, and accession. This was the case for general multilateral treaties concluded under the auspices of the League of Nations but no longer accessible due to the dissolution of the League.64 The position adopted in 1951 by the International Court of Justice, in its Opinion on the Reservations to the Genocide Convention, further highlighted the relevance of this question: The Genocide Convention was therefore intended by the General Assembly and by the contracting parties to be definitely universal in scope…The object and purpose of the Genocide Convention imply that it was the intention of the General Assembly and of the States which adopted it that as many States as possible should participate.65 The Court added, however, that ‘the right to become a party to the Convention does not express any very clear notion’.66

References 22. The case of treaties concluded under the auspices of the League of Nations was examined separately by the ILC and settled in the UN General Assembly.67 Resolution 1903 (XVIII) finally allowed the Assembly to issue invitations permitting a State's participation in the treaty in question.68 Yet the broader question of the ‘any State’ formula remained, producing some very real controversies. During the Commission's earlier discussions, an important division arose between its members on this point.69 A tenuous consensus was reached in 1962, whereby it was considered appropriate, in an Article addressing the ‘parties to a treaty’, for any State to become party to a treaty unless the treaty's text provided otherwise.70 Despite the opposition of the Special Rapporteur (p. 319) himself,71 the ‘any State’ formula was therefore retained. Yet the 1962 formula did not receive unanimous support. On the contrary, in addition to the divisions it provoked within the Commission,72 States were also firmly divided on this point. For some, the text went too far in asserting a presumption of openness of treaties which did not reflect the actual State of international law, in which the position of states purporting to join a treaty depended on the attitude of the other member States.73 Others opined that the text did not go far enough and should provide that general multilateral treaties be open to participation by all, irrespective of their particular provisions.74 Finally, others still considered that this concept was appropriate.75 23. The disagreement was so significant that in 1966, the Commission finally recognized that it was impossible to draft a general provision on the rights of States to become parties to a treaty and the ‘any State’ formula disappeared from the draft.76 Yet the question arose again at the 1968 Conference in the context of an amendment proposed by Czechoslovakia.77 Despite the hopes of the delegations of most developing countries at the 1969 Conference,78 as well as those of the socialist nations and the USSR, the accession Article was adopted without reference to the ‘any State’ formula.79 Thus there is no mention of the term ‘any State’ in the Vienna Convention. The absence of a general right, as confirmed by the final text of the Convention, is grounded in a number of arguments.

(p. 320) Absence of a general right80 24. One of the principal arguments against the inclusion of the ‘any State’ formula stems from the practical difficulties which such a provision would produce. According to the ILC, whilst provision could be made for a ‘right to participate’, it would in certain cases be impossible to ensure its effectiveness. If a treaty makes no reference, implicitly or explicitly, to the exclusion of any State, there will be no problems in the process. By fulfilling all required formalities, all States will have the right to participate in the treaty. On the other hand, in the case of a treaty containing a limitation clause, it is ‘virtually impossible to admit that a State not covered could, by pleading an alleged inherent right, insist on participation, thus overriding the wishes and intentions of the framers of the treaty, as expressed in it’.81 This problem may also arise earlier in the accession process, at the stage of the conference leading to the elaboration and adoption of the treaty.82 Given that participation in a conference generally entails the right to participate in a treaty, it is here that the ‘any State’ formula could be included as providing a right to participate in the conference itself. Yet it may also be argued that this option would simply shift the problem. If invitations to a conference are only issued to certain States, such a selection is almost impossible to disregard.83 Whilst the conference stage could have solved the problem in other ways, most often by the vote of a two-thirds majority, the ‘any State’ formula may also have resulted in giving a right to certain States to become parties to a treaty, whilst the majority of States remained opposed to their participation.84 This theory appears to seriously contradict the principle of conventional freedom which is fundamental to the entire Vienna Convention.85 25. The inclusion of the ‘any State’ formula has also given rise to a number of arguments

concerning difficulties as to the formal recognition of States. During the work of the ILC, the problem arose particularly with regards to the former German Democratic Republic. With the inclusion of an ‘any State’ formula, this problem could also have arisen frequently in the future. In practice,86 the situation may arise where a party whose international status is contested participates in a multilateral treaty. The principle is well established that the participation of a State in the treaty will not therefore result in the formal recognition of the aforementioned party as a State. On this point, the Convention simply provides that the absence of diplomatic relations ‘between two or more States does (p. 321) not prevent the conclusion of treaties between those States’ (Art. 74). Theoretically, the problem of recognition could be considered distinct from that of participation in a treaty.87 Yet significant problems regarding State recognition in practice may have persisted. In essence, every treaty depositary would be placed in an embarrassing situation whereby the candidate to accession's status as a State would be contested by the other parties to the treaty in question. Certain treaties have intended to resolve this problem by providing for several depositaries and calling on them in support of the inclusion of the ‘any State’ formula in the Vienna Convention.88 However the solutions adopted in these particular cases are not always applicable generally.89 In the case of most general multilateral treaties, the United Nations Secretary-General acts as treaty depositary. As such, the Secretary-General him/herself would be faced with the delicate situation of deciding whether the accession candidate could be accepted as a party to the treaty and therefore be implicitly recognized as a State. The implications of this process are significant. First, by conferring the recognition of a State to a single authority, be it the Secretary-General or any other State, the subjective nature of the process is evident.90 The United Nations Secretariat has also emphasized the major difficulties that such a concept would create.91 The Secretary-General himself stated unequivocally that: when the ‘any State’ or ‘all States’ formula was adopted, he would be able to implement it only if the General Assembly provided him with the complete list of all the States coming within the formula.92 Clearly, this response was directed towards the delicate situation in which the SecretaryGeneral would be placed, were he required to take a stand on any controversial political questions. (p. 322) 26. Endorsing the ‘any State’ formula for ‘general multilateral treaties’ requires a preliminary definition of this category of treaties.93 Two major obstacles arise here. First, the definition reignites, in part, the controversial distinction between law-making treaties and contractual treaties. Second, in the absence of a universally accepted definition, the task of adopting the treaty with a qualification, and therefore making operative the implied ‘any State’ formula, falls again on the depositary. Here, the same practical difficulties emerge, imposing a difficult political task on the depositary with this risk that his/her judgement will be refused by the other States. The 1969 text is more reserved, for it limits the depositary functions to traditional administrative functions (Art. 77) and excludes any representative capacities with the consequences which they may impose (Art. 76(2)).94 As such, the possible adoption of the ‘any State’ formula also risks altering the general stability of the Convention. 27. Ultimately, the ‘any State’ formula was not retained in the Convention. The freedom of States to determine their own conventional relations prevailed in the text. Therefore the principle remains today that a right of accession95 does not exist without the will of the contracting parties.96 In affirming the autonomy of the will of the parties in Article 15, where accession relies in each case on the intentions of the member States, the relevance of the 1969 solution is evident. Yet as revealed in subsequent practice, accession to a treaty may be achieved in many different ways.

References

Accession in practice 28. In a general sense, the absence of the ‘any State’ formula in the 1969 Convention has not prevented a strong tendency to encourage the largest possible participation in general multilateral treaties. Various solutions have arisen in practice, such as the coexistence of ‘open’, ‘closed’, and ‘semi-closed’ treaties (the latter being the more numerous). Further, accession to treaties constituting international organisations is a particular case and will be discussed separately.

(p. 323) ‘Closed’, ‘semi-closed’, and ‘open’ treaties 29. ‘Closed’ treaties. Closed treaties may be characterized as treaties where the original contracting parties have not provided means for a State not already a party to the treaty to become a party, thereby intending to prevent new parties from joining. Beyond treaties concluded between a small number of States, such treaties are rare.97 The existence of ‘closed’ treaties nevertheless conforms with Article 15 of the Convention, as all three means of accession are clearly based on the will of the contracting States. As the Convention did not retain the ‘any State’ formula, there is nothing preventing States from establishing a limited conventional union, somewhat resembling an ‘exclusive club’. 30. ‘Open’ treaties. Since the Second World War,98 the practice regarding major multilateral treaties has seen a tendency for openness towards the accession process. This is notably the case for treaties concerning human rights,99 weapons control,100 environmental protection,101 regulation of activity in certain spaces,102 other more specific areas,103 and treaties concerning codification. For this last category, the United Nations Convention (p. 324) on the Law of the Sea (UNCLOS)104 is a particularly significant example. Together, Articles 305 and

307 of UNCLOS make accession possible not only for ‘all States’ but also, in order to guarantee accession for as many as possible, to ‘Nambia, represented by the United Nations Council for Nambia’, to ‘all self-governing associated States which have chosen that status in an act of self-determination supervised and approved by the United Nations…’, to ‘all selfgoverning associated States which, in accordance with their respective instruments of negotiation, have competence over the matters governed by this Convention…’, to ‘all territories which enjoy full internal self-government, recognised as such by the United Nations, but have not attained full independence…’.105 Provisions of the 1969 Vienna Convention also facilitate this tendency in favour of accession, particularly through the use of reservations. As such, a State may issue a reservation opposing the establishment of a treaty relation between itself and a party which it does not formally recognize as a State.

References 31. The case of the 1969 Vienna Convention. The case of the 1969 Vienna Convention is unique. It is to a large extent a codification convention and should therefore be classified as an open treaty. Yet this is not the case, for it retains an intermediary formula, explained by the following reasons. During discussions at the Conference concerning participation, the ‘Vienna formula’106 (termed as such as it was adopted for the Vienna Conventions on Diplomatic and Consular Relations of 1961 and 1963) was adopted at the impetus of the General Assembly. This concept involved inviting all States members of the United Nations or of any specialized agency, or those parties to the Statute of the International Court of Justice (ICJ), as well as any other State invited by the General Assembly. The problem of participation was again discussed during the Conference itself. The final version of the Convention contains no trace of the ‘any State’ formula, as the construction which prevailed is a compromise between two arguments previously mentioned. On the one hand, the combination of Articles 81 and 83107 retain the ‘Vienna formula’, adding the members of the IAEA (International Atomic Energy Agency). On the other, following the initiative of a Nigerian delegate, Mr Elias, who presided over the Committee of the Whole, the conference annexed to the Final Act a Declaration which encouraged the General Assembly to favour invitations to the Convention.108 In sum, the 1969 Convention is a codification convention which would belong principally to the category of treaties that should remain open109 but it retains an intermediary formula.

References 32. ‘Semi-closed’ treaties. Before discussing the case of semi-closed treaties, it must first be noted that most general multilateral treaties are open to accession.110 Yet, this does not (p. 325) mean that ‘open’ treaties are necessarily the most numerous. The most common situation is in fact that of treaties that are neither completely ‘open’ nor ‘closed’, but in which a State not yet a party to the treaty is allowed to adhere according to certain conditions, determined by the original parties to the treaty. Such treaties are termed ‘semi-closed’ treaties. They may refer to geographic criteria, notably in the case of regional treaties,111 to political factors such as the ‘democratic status’ of a State,112 to a combination of both, or to any other substantive criteria.113

References 33. The process of accession hardly permits a ‘control’ of the candidate and the question arises of who is competent to determine the fulfilment of certain substantive conditions by the adherent State.114 After the negotiation conference has come to an end, the community of negotiating States no longer has a corporate body at its disposal to play this role. Further, it is difficult to entrust such a decision, potentially laden with political implications, to a treaty depositary. As a result, conditions of pure fact will often be all that is required.115 The fulfilment of such factual conditions may be assessed by the depositary who is not required to go beyond his/her administrative functions.116 In other cases, a system is created whereby the status of the accession candidate as a State is assessed by a more or less qualified majority of member States, or by a group of States expressly designated to rule on the question.117 Finally, the process of admission must be singled out. This process is markedly distinct from the other procedures discussed, as it involves the participation of a corporate body that is strictly separate from the community of States parties. The issue of admission generally arises in the case of treaties constituting international organizations.

References

(p. 326) Accession to a treaty constituting an international organization 34. Treaties constituting international organizations only come within the ambit of the 1969 Convention ‘without prejudice to any relevant rules of the organisation’ (Art. 5 of the Convention). This restriction operates in a general sense, as noted by Rapporteur Waldock,118 and is also relevant to accession. In this context, accession to treaties constituting international organizations is not completely governed by Article 15, which is subsidiary. Some characteristic features emerge from States' practice. 35. Regarding the substantive conditions of accession, the practice in the area of treaties constituting international organizations is not markedly different to that of ‘ordinary’ treaties. Various criteria also apply here, the choice of which is left to the discretion of the member States. The candidate State's geographical proximity; its adherence to the democratic ideal or 119

120

to a pacific ideology;119 its recognition of the rule of law and respect for human rights;120 its choice of social or economic models or even its capacity to produce certain commodities121 may all be relevant here.

References 36. Conversely, it is in the context of the modalities of accession that treaties constituting international organizations set themselves apart. In most cases, these treaties require the participation of a corporate body which acts on behalf of the organization itself and not on that of the member States.122 This constitutes the process of admission. The admission act is exclusively attributable to the international organization, since the latter is endorsed with its own legal personality.123 For example, in the case of the UN, admission requires a decision by several organs of the organization. The Charter requires the involvement of the General Assembly and the Security Council (Art. 4) with a majority vote of two-thirds needed for the former and nine votes out of 15 with the use of veto for the latter.124 The decisions of these bodies take effect in conjunction.125 The object of (p. 327) the admission process is therefore to grant access to the treaty to a State which is not party to a treaty. As such, in the same way that no right of accession to a treaty exists, a formal right of admission is difficult to establish.126 Adding these requirements to the substantive conditions of the process, as broad as they may be,127 conditions restraining participation in a treaty are still often found, even for organizations of a completely universal nature. The history of admission to the United Nations is an exemplary case.

References 37. Examples do exist of international organizations that put into place a more simple admission process. The organization itself is not involved in such cases; a simple declaration of accession by the candidate State will suffice to make it a member of the organization.128 Yet such cases are rare. More commonly, the accession process to treaties constituting international organizations will revert to the participation of a corporate body (a characteristic feature of this process). Further, this intervention takes place regardless of whether the process is combined with an uti singuli participation of the members of the organization, as is the case for most closed or semi-closed organizations (regional organizations, military organizations, or those of a highly political nature).129

References

D. Effects of accession 38. Insofar as accession places the candidate State within the ambit of the Convention's provisions, two questions concerning the consequences of the act of accession arise. The first concerns the mediate or immediate character of its effects. Where a State's accession conforms with one of the three situations foreseen in Article 15, does that State automatically acquire the status of a party to the treaty? Or conversely, does its status depend on the response to its application by other States which are already parties to the treaty? This second question concerns the rights of the adherent State once it is accepted as a party to the (p. 328) treaty. Are its rights identical to those of the original parties? Or, given that its participation in the treaty instrument is deferred, is the State in question deprived of certain rights?

Does accession immediately grant the status of a party to a treaty? 39. Whether accession immediately confers the status of a party to a treaty or requires the approval of other States is a profoundly theoretical question. However its answer is not found in the text of Article 15. Long before the ILC's work on the law of treaties began, commentators were already at odds over the effects of the act of accession to a treaty. On the one hand, supporters of an immediate effect of accession relied on the concept of a ‘nonconventional’ treaty whereby accession involved conforming with an objective norm, its origin being its only conventional aspect.130 Others supported a purely contractual theory of the treaty in which accession was simply one element of a new contractual relationship.131 In the works of the ILC, the question arose in a limited manner. As such, only one concise mention is found in Sir Gerald Fitzmaurice's First Report, according to which accession ‘makes the acceding State a party to the treaty, with all the rights and obligations of a party’.132 The Reports of Sir Humphrey Waldock are just as succinct but the assertions they contain are contrary to those cited supra: ‘accession’ may not in modern practice at once constitute the acceding State a ‘party’…[‘Accession’] establishes the consent of the State to be bound by the treaty, and may or may not also make it at once a party to the treaty.133 Here, in a more concise form, the division between supporters of the immediate and mediate effects of accession respectively is clear. For some members of the Commission, it appeared possible to limit the inconsistencies between these two positions by considering the expression ‘party to a treaty’ as referring to a State which accepts unconditionally to be bound by a treaty.134 This question is better posed as follows: is a unilateral act of accession sufficient to establish a conventional tie between the adherent State and those States already parties to a treaty? 40. From a theoretical perspective, this debate principally addresses the effects of unilateral acts and, as such, does not achieve unanimous agreement. Some initial precisions may

therefore be of use. With regards to unilateral acts of States, the ILC gives the following definition: …‘unilateral act of a State’ means an unequivocal expression of will which is formulated by a State with the intention of producing legal effects in relation to one or more other States or international organisations, and which is known to that State or international organisation.135 (p. 329) The expression of will and the intention of the one expressing it to ‘pledge or assert a right’ are considered characteristic of a unilateral act which ‘produce[s] legal effects’. The express reference to ‘autonomous’ acts has been removed from this definition. Yet the idea of ‘non-dependent’ acts has been retained, referring to those acts whose legal effects are not predetermined by customary law but are produced by the will of the State in question. In other words, acts which do not require another State's response to produce their effects.136 This view appears to conform with the opinion of Sir Fitzmaurice, according to which accession does not require a response for a State to become party to a treaty. Yet it may be considered more consistent with Waldock's view, adopted by the Convention, inasmuch as the term ‘party to a treaty’ is absent from Article 15 (the Article itself is limited to defining the expression of consent to be bound as the sole effect of accession). Notably, ‘party’ as defined in Article 2(1) (g) of the Convention is broader in its scope as it requires a party's consent to be bound and also requires that the treaty has entered into force with regards to that State—in essence the existence of a conventional tie. The current approach to the effects of a unilateral act does not allow this question to be resolved.

References 41. If the existence of a unilateral act is distinguished from the means of fulfilling its effects, the legal effects produced by unilateral acts per se are purely hypothetical at the international level. The act itself, even if ‘valid’ in the international context, is limited by other States' responses to it. For example, where a State declares its intention to withdraw from a treaty, an act considered ‘unilateral’ in nature, the only effect produced by this act is an expression of the State's position that it is no longer bound by the treaty. In practice, its legal effects will depend on the response of the other party or parties to the treaty in question, effects which therefore cannot be anticipated. In other words, if the unilateral act derives from the expression of a single will, the only exclusive effect it can produce is to create a will.137 The effects in practice of this legal act will also necessarily depend on the responses of the other parties concerned.138 Further, according to this argument, the act of accession may be considered as no more than an expression of consent to be bound, an expression of a will. The final realization of the aim of this consent, to become party to a treaty, depends on the response of those already parties to it. (p. 330) 42. Looking to the text of Article 15, the response of those States already party to a treaty, their ‘consent’, can be established preliminarily (sub-paras (a) and (b)) or subsequently (sub-para. (c)). The first two situations refer to an ‘offer’,139 created beforehand,140 whilst the third envisages an offer that would take place subsequently, in any form,141 in accordance with the lack of formality that characterizes the law of the treaties. In all cases, the act of accession does not constitute, per se, an agreement between the States already parties to the treaty and the new member State, but is simply the acceptance of an offer. It is the result of this offer and its acceptance by the adherent State that establishes the new conventional tie and expands the number of parties to the treaty.142 In the case of a dispute, the only practical difficulty which arises will often relate to the burden of proof143 of the consent of both parties. This question can only be resolved on a case-by-case basis.

Does accession confer the same rights on the adherent State as those enjoyed by States already parties to the treaty? 43. Supposing the process of accession has succeeded, it remains to be seen whether the new party to the treaty enjoys the same status as the other States. For example, does it exercise the same capacity to issue reservations? Can it participate in amendments to the treaty on an equal footing with the other parties? This point is not addressed by Article 15, nor by the other provisions of the Convention. It merits some discussion nonetheless. 44. In a general sense, authors, even historically, have been in favour of the similarity of rights between the original parties to a treaty and those whose participation is the result of accession. As such, as early as the nineteenth century, Pradier-Fodéré wrote: L'accession place l'Etat qui la donne sur la même ligne que les parties principales qui ont conclu et signé le traité, elle lui confère les mêmes droits comme elle lui impose les mêmes obligations réciproques envers tous les Etats intéressés.144 (p. 331) This same assertion is also found in the 1935 Harvard Project,145 in the First Report of Sir Gerald Fitzmaurice in 1956,146 in the words of Lord McNair in 1961,147 and in some more recent works.148 Most treaties concur with this view as, being silent on the question, they implicitly operate without distinction between the rights of the original parties and those of the adherent States. In practice, one may find treaties—even ancient ones149—which state explicitly that the rights of adherent States will be equal. Such references are rare, but one prime example is the Berne Convention for the Protection of Literary and Artistic Works, which states that: ‘[a]ccession shall automatically entail acceptance of all the provisions and admission to all the advantages of this Convention’ (Art. 30).150 45. The only established difference between these two categories of parties to a treaty

concerns the moment when the treaty provisions come into force, that is, the date when the State in question acquires certain rights and contracts certain obligations.151 This difference is logical but not significant. 46. Importantly, if the similarity of rights amongst all parties to a treaty is unquestionably the most common hypothesis, this situation does not result from any legal requirements. Nothing, in effect, would prevent the original parties from depriving the adherent States of certain prerogatives in the treaty. A few rare cases exemplify this.152 Whether such differences result from a belated participation in the treaty, as is the case with accession, or from any other factor, the principles of State sovereignty and equality are not directly affected. Numerous treaties impose status distinctions between those States which are parties to them. The United Nations Charter, for example, reserves the right of veto to the five permanent members of the Security Council. Finally, even if very few treaties exist that confer lesser rights to adherent States as compared to the other parties to the treaty, nothing prevents this possibility. The silence of Article 15 on this question simply demonstrates, once more, the inherent freedom which lies at the heart of treaties relations. *

JEAN-FRANÇOIS MARCHI

References

Footnotes: 1 See the Report on the Law of Treaties by G. G. Fitzmaurice, A/CN.4/101, 14 March 1956, YILC, 1956, vol. II, p 114, para. 4. 2 See the Fourth Report of Sir Humphrey Waldock, A/CN.4/177 and Add.1 and 2, YILC, 1965, vol. II, p 40, para. 3. The concept of conclusion is used here in a general sense. It corresponds to ‘l'ensemble des procédures mettant en jeu des instruments variés par lesquels sont appelés à l'existence des traités internationaux’, P. Reuter, Introduction au droit des traités (3rd reviewed, edited and extended edn by Ph. Cahier) (Paris, Geneva: PUF/IUHEI, 1995), pp 51–2. 3 P. Reuter, Introduction au droit des traités, ibid, pp 60–1. 4 Cf Art. 12 of the Convention. 5 Cf Art. 14 of the Convention. 6 Generally, multilateral treaties are open for signature for a period of approximately six months (Art. 14, para. 2) as was the case for the 1969 Vienna Convention itself (see the commentary on Art. 81). Today, this period is longer and an extension of a year or more is not uncommon. For example, the United Nations Framework Convention on Climate Change was adopted on 9 May 1992 and remained open for signature until 19 June 1993 (Art. 20). Further, the Rome Statute of the International Criminal Court was adopted on 17 July 1998 and stayed open for signature until 31 December 2000 (Art. 125(1)). 7 See the Report of the ILC to the General Assembly, 1959, A/4169, p 110, n 62. In this report, treaties are cited which make express mention that they will stay open for signature, such as the Convention on Maritime Neutrality, adopted at Havana on 18 February 1928 (Art. 14). Other treaties are also cited whose final clauses do not provide any special extension for signature. This is the case for numerous conventions adopted on 20 February 1928 at the Sixth Pan American Conference held at Havana, such as the Convention on Treaties, the Convention on the Status of Aliens, the Convention on Diplomatic Functionaries, the Convention on Consular Agents, the Convention on Maritime Neutrality, the Convention on Asylum, and the Convention on Duties of Neutral States in the Event of Civil Strife. 8 See the presentation of J. Combacau, Le droit des traités (Paris: PUF, Coll. QSJ, 1991), pp 43–4. 9 P. Reuter, Introduction au droit des traités, supra n 2, pp 60–1. 10 On this point, J. Combacau, Le droit des traités, supra n 8, pp 43–4. 11 Report on the Law of Treaties by G. G. Fitzmaurice, A/CN.4/101, 14 March 1956, YILC, 1956, vol. II, p 114, para. 5. For examples on this point, see Resolutions of the General Assembly concerning the Law of Treaties, Memorandum prepared by the Secretariat, A/CN.4/154 of 14 February 1963, YILC, 1963, vol. II, p 15, paras 69 ff. This is the case, amongst others, of Res. 22 (I) of the United Nations General Assembly which approves the Convention on the Privileges and Immunities of the United Nations and ‘and proposes it for accession by each member of the United Nations’; this is also the case of Res. 179 (II) of the General Assembly which operates in the same way for the Convention on Privileges and Immunities of Specialised Agencies. 12 Report on the Law of Treaties by G. G. Fitzmaurice, A/CN.4/101, 14 March 1956, YILC, 1956, vol. II, p 114, para. 5. This is the case, eg, of the Convention on Privileges and Immunities of Specialised Agencies (Art. XI, ss 41–43). 13 The formerly accepted definition of the term ‘adherence’ is rejected at this point. According to this definition, ‘adherence’ referred to a mode of acquisition of landownership, the acceptance of which is still found occasionally today in this field. An example of the use of the term in this way can be found in G. F. de Martens, Précis du Droit des gens moderne de l'Europe (original edition of 1788, reproduced in the French version—posthumous—of 1864, Paris: Guillaumin et Cie Librairies), p 152. 14 See eg F. de Martens, Traité de droit international (Paris: Léo Trans, 1883), pp 536–7; P. Pradier-Fodere, Traité de droit international public européen et américain suivant les progrès de la science et de la pratique contemporaines (Paris: Pedone-Lauriol, 1885–1906), no 1145, p 827; K. Strupp, Eléments du droit international public universel, européen et américain (Paris:

Les éditions internationales, 1927), p 187. 15 A. Rivier, Principes du droit des gens (Paris: 1895), p 91; Ch. Dupuis, ‘Les relations internationales’, RCADI, 1924, vol. 2, p 330. 16 V. L. Oppenheim, International Law—A Treatise (4th edn, Cambridge: Cambridge University Press, 1928), p 743. 17 On this point, A. Rivier, Principes du droit des gens (Paris: 1895), p 93, who admits that the diplomatic use of the terms is uncertain; F. Despagnet, Cours de droit international public (4th edn by Ch. de Boeck, Paris: Sirey, 1910), no 448; D. Anzilotti, Cours de droit international, vol. I (Introduction—Théorie générale) (trans G. Gidel, Paris: Sirey, 1929), p 429: ‘la pratique… emploie indifféremment les deux termes’; P. Fauchille, Traité de droit international public (Paris: A. Rousseau, vol. 3, 1926), pp 306–61; A. Cavaglieri, ‘Règles générales du droit de la paix’, RCADI, 1929, vol. 26, p 526; H. Accioly, Traité de droit international public (trans. G. Goute, Paris: Sirey, 1940–42), no 1324. 18 League of Nations, Committee of Experts for the Progressive Codification of International Law, Report on the Admissibility of Reservations to General Conventions, Official Journal of the League of Nations, 1927, p 881. 19 On this point, J. Basdevant (ed), Dictionnaire de la terminologie du droit international (Paris: Sirey, 1960); see Adhésion, lit B, p 19 and see Accession, p 7; P. Reuter, Introduction au droit des traités, supra n 2, p 61; J. Salmon (ed.), Dictionnaire de droit international public (Brussels: Bruylant, 2001), see ‘Adhésion’, lit C, pp 38–9 and ‘Accession’, lit B, p 7. The Harvard Project also adopted this position: see Harvard Law School, Draft Conventions on the Law of Treaties, Supplement to AJIL, 1935, pp 815–22. 20 On this point, see J. Combacau, Le droit des traités, supra n 8, p 44. For an example of the indistinct use of these terms in case law, see the Arbitral Committee on Goods, Rights and Interests in Germany, Sheiddt and United States of America v Federal Republic of Germany, award of 18 June 1964, Arbitration Committee on Property, Rights and Interests in Germany, Decisions—Die Schiedskommission fur Guter, Rechte und Interessen in Deutschland, Entscheidunden—La Committee Arbitrale sur les Biens, Droits et Interets en Allemagne Decisions, 10 vols (Koblenz: published by Direction of the Arbitral Committee by W. Euler, member of the Committee, 1958–69). For an example of this indistinct use by authors, see eg D. Alland, Droit international public (Paris: PUF, 2000), p 223. L. McNair, The Law of Treaties (Oxford: Clarendon Press, 1961), p 148, drawing on the Harvard Project, opines that the terms ‘adhesion’, ‘accession’, and ‘adherence’ are synonyms. This text also notes that in the Commonwealth, the words ‘accession’ and ‘adherence’ in the United States, and in France, ‘accession’ and ‘adhésion’, are used interchangeably. He notes that in the Commonwealth we rather use ‘accession’, in the United States ‘adherence’, and in France indistinctly ‘accession’ and ‘adhésion’. 21 See the proposal of the Syrian delegation, A/CN.4/177 and Add.1 and 2, YILC, 1965, vol. II, p 40; and the Report of the Sixth Committee of the General Assembly, 1962, 739th session, para. 18. 22 Observation on the proposal of the Syrian delegation, A/CN.4/177 and Add.1 and 2, YILC, 1965, vol. II, p 40, para. 1. 23 An example which runs counter to the view of the Syrian delegation can be found in the Treaty on the Non-Proliferation of Nuclear Weapons of 1 July 1968. Article 9 of the Treaty does not provide for the fulfilment of any particular conditions, such as the involvement of a procedure aimed at the reception of accession by those States already party to the Treaty, which would allow it to be characterized as a so-called ‘open’ treaty. Yet the term adherence is explicitly used in paras 1 to 5. 24 ‘Article 15: Consent to be bound by a treaty expressed by accession’. 25 Harvard Law School, Draft Conventions on the Law of Treaties, supra n 19, pp 812–43 (‘Article 12—Accession’ ). 26 See the commentary on Art. 14. 27 See YILC, 1962, vol. II, p 192. 28 The Basdevant dictionary (supra n 19, pp 5–7) notes at least four different meanings with regards to conventional practice. 29 See P. Reuter, Introduction au droit des traités, supra n 2, pp 54–5. 30 See the Report on the Law of Treaties by G. G. Fitzmaurice, A/CN.4/101, YILC, 1956, vol. II, p 114 in fine. 31 See the observations of Luxembourg, A/CN.4/177 and Add.1 and 2, YILC, 1965, vol. II, notably p 37 and p 43. 32 Generally an office of the government or head of government. 33 On this point, see J. Combacau, Le droit des traités, supra n 8, p 43. 34 J. Basdevant, ‘La conclusion et la rédaction des traités et des instruments diplomatiques autres que les traités’, RCADI, 1926-V, vol. 15, p 594. 35 eg this was the case concerning reservations in the law of treaties, where a system of unanimous admission of reservations by those States already parties to a treaty was adopted. 36 D. Anzilotti, Cours de droit international, supra n 17, p 431 in fine. See also the individual Opinion of Judge Anzilotti in the Case Free City of Danzig and ILO, PCIJ, Advisory Opinion, 26 August 1930, Series B, no. 18, p 19. 37 Anzilotti referred notably to the example of private international law conventions of 12

May 1902 and 17 July 1905, where a protocol was added to both permitting the accession of States not parties to the adoption conference ‘dont le désir d'adhérer [avait] été accueilli favorablement par les Etats contractants’ (‘whose desire to accede was received favourably by the contracting States’), ibid. 38 See the proposal of the Syrian delegation, A/CN.4/177 and Add.1 and 2, YILC, 1965, vol. II, p 40; and the Report of the Sixth Committee of the General Assembly, 1962, 739th session, para. 18. 39 He doubted ‘whether there is any such general usage in the employment of the terms “accession” and “adherence” as would justify the Committee in introducing into the Article the refinement suggested’. See the proposal of the Syrian delegation, A/CN.4/177 and Add.1 and 2, YILC, 1965, vol. II, p 40. 40 On this point, see P. Daillier and A. Pellet, Droit international public (6th edn, Paris: LGDJ, 1999), p 176. 41 Amongst many, the examples of private international law conventions of 12 May 1902 and 17 July 1905 have already been cited, where a protocol was added to both permitting the accession of States that did not take part to the adoption conference. See also the numerous examples cited in Harvard Law School, Draft Conventions on the Law of Treaties, supra n 19, pp 838–9, such as the Berne Convention for the Protection of Literary and Artistic Works of 9 September 1886 (NRGT, 3rd series, vol. 12, p 173; CTS, vol. 168). Remarkably, the Geneva Convention of 6 July 1906 concerning the Optional Arrangement relative to the compulsory jurisdiction of the International Court of Justice can also be cited. This Convention was certainly discussed with regards to the affixation of a signature but it more often involves a declaration by which the State recognized the compulsory jurisdiction. In this way, it could be compared with accession: on this point, see Basdevant, ‘La conclusion et la rédaction des traités et des instruments diplomatiques autres que les traités’, supra n 34, p 595, fns 1 and 2. 42 See eg F. de Martens, Traité de droit international (Paris: Léo Trans, 1883), pp 536–7; P. Pradier-Fodere, Traité de droit international public européen et américain suivant les progrès de la science et de la pratique contemporaines (Paris: Pedone-Lauriol, 1885–1906), no 1145, pp 827 ff. 43 A/54/2000, esp. para. 328. 44 eg Ch. Rousseau, Droit international public (Paris: Pedone, 1952), p 37, giving the following definition of accession: ‘acte-condition dont l'effet essentiel est de rendre applicable à l'Etat adhérant le régime conventionnel déjà en vigueur entre les Etats signataires’ (emphasis added). 45 On this point, see the Harvard Project, Harvard Law School, Draft Conventions on the Law of Treaties, AJIL, Suppl. 1935, vol. 29, p 822: ‘Article 12. b) Unless otherwise provided in the treaty itself, a State may accede to a treaty only after the treaty has come into force and only with the consent of all the parties to the treaties’; see also the numerous examples cited in the provision's commentary. See also the Second Report of Brierly, YILC, 1951, vol. II, p 73; Report on the Law of Treaties by G. G. Fitzmaurice, YILC, 1956, vol. II, p 114. 46 Report of 24 March 1953, A/CN.4/63, p 103, YILC, 1953, vol. II, p 121(9). 47 Practice of the United Nations Secretariat in relation to certain questions raised in with the Articles on the Law of Treaties, note by the Secretariat of 24 March 1953, A/CN.4/121 of 23 June 1959, litera E. 48 For an endorsement of this option, see the proposal of the Romanian delegation, A/CN.4/177 and Add.1 and 2, YILC, 1965, vol. II, p 40; and Report of the 6th Committee to the General Assembly, A65/6, 1966, para. 61. 49 See Report of the ILC to the General Assembly, 1962, YILC, 1962, vol. II, pp 190–1. 50 See notably the Report on the Law of Treaties by G. G. Fitzmaurice, A/CN.4/101, YILC, 1956, vol. II, p 128 (85); Report of the ILC to the General Assembly, YILC, 1962, vol. II, p 191. 51 Already on this point, J. Basdevant, ‘La conclusion et la rédaction des traités et des instruments diplomatiques autres que les traités’, supra n 34, p 595, who sees it as a ‘useless complication’; Ch. Rousseau, Principes généraux du droit international public (Paris: Pedone, 1944), p 280; and Ch. Rousseau, Droit international public (Paris: Pedone, 1952), p 38: ‘L'inconvénient de cette pratique est d'ôter toute signification à la signature différée—à laquelle on arrive maintenant—comme procédé autonome d'extension d'un régime conventionnel aux Etats non signataires’ (‘The disadvantage of this practice is that it removes any signification to the postponed signature—to which we're now getting—as an autonomous procedure of extension of a conventional regime for the non-signatories States’). 52 See examples in the General Assembly, 17th session, 6th Committee, 744th meeting, para. 5. Ch. Rousseau, Principes généraux du droit international public, ibid, p 280 and following, notes that this practice was widespread under the League of Nations. Traces of such practice can also be found before this period: accordingly, J. Basdevant, ‘La conclusion et la rédaction des traités et des instruments diplomatiques autres que les traités’, supra n 34, p 595, fn 3, notes that the accession of Brazil to the Geneva Convention of 22 August 1864 was subject to ratification by the National Congress. 53 Official Journal of the League of Nations, 8th ord. session, entire session, p 141. The Assembly thus endorsed the question to a competent subcommittee, see Official Journal of the League of Nations, A.95.1927.V. The Harvard Project adopted the same stance. In its view, it was necessary to facilitate accession to treaties in all circumstances, but this practice did not need to be crystallized in an Article; see Harvard Law School, Draft Conventions on the Law of Treaties, supra n 19, p 821.

54 Report on the Law of Treaties by G. G. Fitzmaurice, YILC, 1956, vol. II, p 125, para. 85. 55 See Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, ST/LEG/7, para. 48; see also UNJY, 1984, p 249. 56 For an endorsement of this position, see the proposal of the Argentine delegation, A/CN.4/177 and Add.1 and 2, YILC, 1965, vol. II, p 40; and in the Report of the 6th Committee of the General Assembly, 1962, 744th session, para. 5; see again the proposal of the Romanian delegation, A/CN.4/177 and Add.1 and 2, YILC, 1965, vol. II, p 42. 57 Outside these situations, insofar as the text provides for cases where consent can be expressed by accession, Art. 15 responds, at least in part, to the question of when a State may have a right of accession: that is, when the treaty so provides, when it is otherwise established or when the parties have subsequently agreed. 58 It must be noted that the terms ‘any State’ and ‘all States’ are used interchangeably here. The linguistic differences between both in no way reflect a difference in their purpose. In both cases, these terms refer to the question of the existence, for any State, of a right to participate in a treaty. 59 On this point, see eg PCIJ, Certain German Interests in Polish Upper Silesia, Merits, 26 May 1926, Series A, no. 7, pp 28–9: ‘the instruments in question make no provision for a right on the part of other States to adhere to them. It's just…as impossible to presume the existence of such a right’ (contra see Observations of Lord Finlay, ibid, p 84); Free Zones of Upper Savoy and the District of Gex, Order of 19 August 1929, Series A, no. 22, individual Opinion of Judge Negulesco, p 37: ‘The adherence of a third to a treaty already concluded can only take place where such a right has been provided therein’; Free City of Danzig and ILO, 26 August 1930, Series B, no. 18, individual Opinion of Judge Anzilotti, p 19: ‘it is impossible to adhere to a treaty except in the circumstances and under the conditions laid down for such adherence’. 60 eg see the Report on the Law of Treaties by G. G. Fitzmaurice, A/CN.4/101, YILC, 1956, vol. II, p 114: ‘Participation in a treaty by accession is not an absolute right. It can only take place where the treaty so provides’. The Rapporteur also notes those cases in which provision for this possibility is specially made by a separate instrument or after a consultation, thereby not questioning the principle which he considers established. 61 Report of the ILC to the General Assembly, 1959, A/4169, p 107. The question was first raised with regards to a possible ‘right to sign’ (Art. 17 of the 1959 Draft). 62 Tounkine, the first within the Committee, proposed an Article drafted as follows: ‘Any State has the right to participate in a multilateral treaty which, by its nature, is of a universal character’, see 503rd meeting, YILC, 1959, vol. I, p 57. During the following session, it was accepted that the word ‘right’ would be replaced by ‘power’. See also I.-I. Lukashuk, ‘Parties to Treaties: the Right of Participation’, RCADI, 1972-I, vol. 135, pp 231-–8. 63 The western opposition to the insertion of the ‘any State’ formula in the Vienna Convention is principally linked to the situation of the former German Democratic Republic The latter was considered as a State by the USSR, whilst the United States and western bloc countries viewed it as a territory under the control of the Soviet Union, prived of the international legal personality inherent in the status of a State. On this point, see eg S. Bastid, Les traités dans la vie internationale—Conclusion et effets (Paris: Economica, 1985), p 54 and pp 63–4 and AFDI, 1969, p 377. 64 This question was considered by the ILC in the First Report of Sir Humphrey Waldock in 1962, see YILC, 1962, vol. II, p 186, para. 10. In the eyes of the Committee, it was possible to resolve this question quite rapidly by adopting other procedures, most notably those which called on the involvement of the United Nations General Assembly (as was effectively done later). 65 Advisory Opinion on the Declarations and Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, 28 May 1951, ICJ Reports 1951, pp 7–8. 66 Ibid, p 11. 67 The General Assembly examined this question in 1962, on the recommendation of the Sixth Committee; see Resolutions of the General Assembly concerning the Law of Treaties— Memorandum prepared by the Secretariat, A/CN.4/154, YILC, 1963, vol. II, pp 36–7, paras 155–7. Resolution 1766 (XVII) of 20 November 1962 asked the ILC to continue examining the question. Previously, the Assembly had adopted a series of resolutions for the amendment of participation clauses in older conventions; see M. Hardy, ‘The United Nations and General Multilateral Treaties Concluded Under the Auspices of the League of Nations’, BYIL, 1953, pp 425–40. 68 Resolution 1903 (XVIII) of 18 November 1963 (adopted by 79 votes to 0 with 22 abstentions); see also Res. 2021 (XX) of 5 November 1965. In reality, Res. 1903 adopts quite a restrictive position as it deals with ‘multilateral treaties of an administrative and not political character’; on this point see also the comments of Lachs, YILC, 1965, vol. I, 793rd meeting, p 123, para. 30. 69 The divergences of opinion appeared clearly from 1962: see YILC, 1962, vol. I, 648th, 649th, and 650th meeting, pp 118–39, 219–24, 261–7; ibid, vol. II, pp 173–5. The debate was then crystallized by Arts 8 and 9 of the 1965 draft, which were later omitted. One Article concerned the Parties to a treaty, the other the question of Extension of the right to become party to a treaty to other States; see YILC, 1965, vol. I, 791st to 794th meeting, pp 108–35. See also the Fourth Report of Sir Humphrey Waldock, A/CN.4/177 and Add.1 and 2, YILC, 1965, vol. II, pp 26–34. Further, in the Report submitted by the Committee to the General Assembly in 1965, decision on Art. 13 relative to accession (current Art. 15) was suspended, waiting on the decision on the ‘any State’ formula (Arts 8 and 9 of the 1965 draft); see YILC,

1965, vol. II, p 174. 70 See YILC, 1962, vol. II, p 173 and following. Article 8 of the 1962 draft (‘Parties to a treaty’) stated: 1. In the case of a general multilateral treaty, every State may become a party to the treaty unless it is otherwise provided by the terms of the treaty itself or by the established rules of an international organization. The second paragraph of this Article of the draft provided different situations in which any State could become party to a treaty. 71 See A/CN.4/177 and Add.1 and 2, YILC, 1965, vol. II, pp 30–1. The ‘any State’ formula was included in the projects adopted by the Committee from 1963, despite the opposition of Sir Humphrey Waldock, as it conformed with the opinion of the majority of the Committee's members and was likewise supported by a certain number of States. 72 Most members of the Committee from Eastern bloc States or countries in the South opined that it was impossible to exclude States from participation in general multilateral conventions, and pleaded in favour of the clause. In perfect symmetry, the members of some western States, Israel, and Japan firmly opposed the clause (see 791st to 795th meetings, YILC, 1965, vol. I, pp 125–56). The results of voting on the proposals relative to the omission or retention of the clause are indicative of this division: 10 votes for and 10 votes against in one case, 9 for and 9 against with 2 abstentions in the other (ibid, 795th meeting, p 154, paras 45 and 53). 73 See eg the Observations of the United Kingdom (Official Records of the General Assembly, 17th session, 6th Committee, 745th meeting, para. 21) and those of Japan (reproduced in A/CN.4/177 and Add.1 and 2, YILC, 1965, vol. II, p 40), Luxembourg (ibid, p 41), the United Kingdom (ibid, p 41), the United States (ibid, p 41). 74 See eg the observations of the USSR (Official Records of the General Assembly, 17th session, 6th Committee, 738th meeting, paras 5–6); Czechoslovakia (ibid, 739th meeting, paras 4–5); Poland (ibid, 740th meeting, paras 26–7); Indonesia (ibid, 740th meeting, para. 20); Cameroon (ibid, 740th meeting, para. 12); Cyprus (ibid, 741st meeting, para. 32); Mongolia (ibid, 742nd meeting, para. 1); Romania (ibid, 742nd meeting, para. 25); Yugoslavia (ibid, 743rd meeting, para. 15); Belarus (ibid, 743rd meeting, para. 33). 75 See eg the observations of Austria (A/CN.4/177 and Add.1 and 2, YILC, 1965, vol. II, p 40). 76 See YILC, 1966, vol. II, p 200. 77 A/CONF. 39/C.1/L.104. The amendment was aimed at reintroducing the ‘any State’ formula in Art. 12 of the Draft (current Art. 15), considering that the Article as it stood was only a first paragraph, to which it added a second formulation as follows: 2. Any State can express by accession its consent to be bound by a general multilateral treaty. Any State also has the right, by accession, to become party to any multilateral treaty concerning its legitimate interests. 78 See Official Records, Summary Records, 2nd session, 10th entire session, pp 26–35, paras 5–7. In reality, the amendment proposed by Czechoslovakia was not voted on. The debates on this point were suspended in light of a vote on Art. 5 bis relative to ‘Parties to treaties’, to which it was suggested that the ‘any State’ formula be added. 79 The vote consisted of 73 votes for, 14 against, with 8 abstentions; see Official Records, Summary Records, 2nd session, 10th entire session, p 26, para. 9. 80 The very dense arguments presented in these discussions, taking place between the 791st and the 794th sessions, can be found in YILC, 1965, vol. I, pp 125–56. The harshness of the debates and the difficulty faced by the Committee to find a satisfactory construction of the provision for the two opposing camps led significantly to the heightened controversy surrounding the ‘any State’ formula at this time. 81 Report of the ILC to the General Assembly, 1959, A/4169, p 112, para. 6. On this point, see the arguments of Mr Tsuruoka (792nd meeting, YILC, 1965, vol. I, p 132, paras 20–1); Cadieux (ibid, 793rd meeting, p 133, para. 8); and Ago (ibid, 794th meeting, p 147, para. 43). 82 See eg the intervention of Mr Briggs at the 791st meeting, YILC, 1965, vol. I, p 128, para. 72. 83 Report of the ILC to the General Assembly, 1959, A/4169, p 112, para. 7. 84 On this point see the intervention of Mr Cadieux (793rd meeting, YILC, 1965, vol. I, p 133, para. 10); and Ago (ibid, 794th meeting, p 147, para. 43). 85 See the intervention of Mr Tsuruoka (792nd meeting, YILC, 1965, vol. I, pp 131–2, paras 12–18); Cadieux (ibid, 793rd meeting, p 133, paras 8–10); Rosenne (ibid, 793rd meeting, p 141, para. 74); Ruda (ibid, 794th meeting, p 145, para. 24); Ago (ibid, 794th meeting, pp 146– 7, paras 32–4, 44); Waldock (ibid, 795th meeting, p 156, paras 26–7). 86 See particularly the examples cited by Mr Lachs (792nd meeting, YILC, 1965, vol. I, pp 130–1, paras 3–9). See also the example of the practice of the United States in this area (AJIL, 1964, vol. 8, pp 170–5) where it is clear that the admission of a State as party to a treaty does not imply its recognition as a State. 87 In favour of this theoretical distinction, see eg the intervention of Mr Lachs (792nd meeting, YILC, 1965, vol. I, pp 130–1, paras 3–9); Castrén (ibid, 791st meeting, p 129, para. 80); Yasseen (ibid, 793rd meeting, p 135, para. 23); Elias (ibid, 793rd meeting, p 136, para. 33); Tabibi (ibid, 793rd meeting, p 138, para. 57); Tounkine (ibid, 794th meeting, p 148, para. 58); more moderate: Cadieux (ibid, 793rd meeting, p 133, para. 9); Rosenne (ibid, 793rd

meeting, pp 141–2, para. 77). See also the analysis of J. Verhoeven, La reconnaissance internationale dans la pratique contemporaine (Paris: Pedone, 1975), pp 390 and 428. 88 A classical example, cited many times in the work of the ILC, is that of the Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water of 5 August 1963 (UNTS, vol. 480, p 43). This treaty provides that all States may accede to it. To limit to a minimum the possible recognition problems stemming from the clause, Art. 3(2) identifies three governments as depositaries. On this point see eg the participation of Mr Lachs (792nd meeting, YILC, 1965, vol. I, p 131, para. 9); Tabibi (ibid, 793rd meeting, p 138, para. 54); Jiménez de Aréchaga (ibid, 794th meeting, p 144, para. 16); Ruda (ibid, 794th meeting, p 145, para. 24—yet staying opposed to the ‘any State’ formula when it does not stem from the will of the parties); Tounkine (ibid, 794th meeting, p 148, para. 55); contra: eg Tsuruoka (ibid, 792nd meeting, p 132, para. 16); Rosenne (ibid, 793rd session, p 141, para. 73); Waldock (ibid, 795th meeting, p 153, para. 36). Subsequent to these debates, other cases may also be mentioned, such as the Outer Space Treaty of 1967 (Art. 14(2)), the Non-Proliferation Treaty of 1968 (Art. 9(2)), and the Biological and Toxic Weapons Convention of 1972 (Art. 14(2)). However this tendency has significantly declined since the end of the cold war. 89 On this point see the intervention of Mr Rosenne (793rd meeting, YILC, 1965, vol. I, p 142, para. 79); and Reuter (ibid, 795th meeting, p 149, para. 7). 90 See notably the position of Mr Verdross (793rd meeting, YILC, 1965, vol. I, p 136, paras 35–6). 91 See the Secretariat's response on this subject, followed by questions posed by Mr Rosenne: YILC, 1965, vol. I, pp 125–6, para. 61. 92 Official Records of the General Assembly, 18th session, entire session, 1258th session, para. 101. 93 See eg the intervention of Mr Briggs (791st meeting, YILC, 1965, vol. I, p 128, para. 73); Cadieux (ibid, 793rd meeting, p 133, para. 6); Ruda (ibid, 794th meeting, pp 144–5, paras 18– 22); Reuter (ibid, 795th meeting, p 150, para. 11). See also the discussions on this point from 1962 (642nd, 643rd, and 667th meetings, YILC, 1962, vol. I); and those from 1964 discussing so-called ‘objective’ regimes (738th to 740th meeting, YILC, 1964, vol. I). The 1962 draft contained the following definition of general multilateral treaties: ‘A multilateral treaty relative to the general norms of international law or concerning questions of general interest to all States’. For a tentative classification of treaties, see M. Virally, ‘Sur la classification des traités’, Communicazioni e Studi (1969), pp 17–35. 94 This is largely reflected in practice. For the situation in which the United Nations Secretary-General is the depositary, see Res. 598 (V) of the General Assembly of 12 November 1952 and see the position of the Secretariat, mentioned previously (YILC, 1965, vol. I, pp 125– 6), as well as the declaration of the Seretary-General (Official Records of the General Assembly, 18th session, entire sessions, 1258th session). 95 On this point, J. Combacau, Le droit des traités, supra n 8, pp 44–5: ‘il n'existe de droit pour un sujet individuel (Etat ou organisation internationale) à accéder à un traité que si les parties l'y invitent par un acte exprès…]ou dans le traité lui-même’. See also P. Reuter, Introduction au droit des traités, supra n 2, p 70. 96 It must be noted that the Vienna Convention on the Succession of States in respect of Treaties of 23 August 1978 (A/CONF.80/31 and Corr. 1) provided a right of participation of a newly independent State in the case of multilateral treaties (Art. 17). This solution is notably directed towards favouring the application of general multilateral treaties. Yet its implementation is frustrated by the same theoretical and practical difficulties as those met in relation to the ‘any State’ formula in the travaux of the 1969 Convention. That is, in the case of the opposition of a State already party to the treaty, how may such a State be linked to the new State? In a practical sense, in the case of opposition of States already parties to the treaty, how can an Article which provides a right of accession be effective? See eg the commentary of P. Reuter, Introduction au droit des traités, supra n 2, p 83 and pp 101–4. 97 On this point, see P. Daillier and A. Pellet, Droit international public, supra n 40, p 173, who cite eg the Benelux Treaty of Economic Union, signed at The Hague on 3 February 1958. Amongst many other cases, the Treaties on the Reduction of Strategic Weapons can also be cited, concluded between Belarus, Kazakhstan, Russia, Ukraine, and the United States, of 23 May 1992 (available on the official website of the US government: http://www.state.gov/documents/organization/27389.pdf). The latter is a strictly closed treaty as it does not include the possibility of accession. This is the case for numerous treaties concluded intuitu personae. 98 Ibid, p 175. A list of 25 multilateral treaties considered as ‘representing the fundamental objectives of the international community’ was established by the United Nations Secretariat at the Millennium Summit. See Millennium Summit: Multilateral Treaty Framework: An Invitation to Universal Participation (New York: UN, 2000), p 111. 99 eg the four Geneva Conventions of 12 August 1949 are open to ‘any Power’ accession. In this area, it must be noted that some of the most important texts, paradoxically, contain restrictions on accession. This is the case, eg, in the International Covenant on Civil and Political Rights of 1966 (Art. 48, UNTS, vol. 999, p 171 and vol. 1057, p 407) and the International Covenant on Economic, Social and Cultural Rights of 1966 (Art. 26, UNTS, vol. 993, p 3), both of which provide for the accession of all States members of the UN or of any specialized agency, or those parties to the Statute of the ICJ, as well as any other State invited by the General Assembly (the so-called ‘Vienna formula’, cf infra). In the same way, the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948 provides for the possibility of accession for members of the UN and those non-members that

would have been invited by the General Assembly (UNTS, vol. 78, p 277). Given that the Organization has expanded the dimensions of the international society and that there no longer exists a non-member of the United Nations, the restriction of the requirement of an invitation is no longer relevant in practice. Yet it may still well arise in the case of the appearance of a new State. 100 See eg the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and of their Destruction of 13 January 1993 (Art. 20); or the Treaty on Non-Proliferation of Nuclear Weapons of 1 July 1968 (Art. 9), UNTS, 1974, p 45 and 1970, p 169). See also the particular formula previously mentioned of the Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water of 5 August 1963 (UNTS, vol. 480, p 43). 101 See eg United Nations Framework Convention on Climate Change of 9 May 1992, which, for adherent States (Art. 22), does not adopt the restrictions on participation relative to State signatories (UNTS, vol. 1771, p 107); or the Convention on Biological Diversity of 5 June 1992 (Art. 35, UNTS, vol. 1760, p 79). Less recent but also open to any State is the International Plant Protection Convention of 6 December 1951 (UNTS, 1976, p 398). 102 See eg the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, of 27 January 1967 (Art. 14); or the Convention on International Liability for Damage Caused by Space Objects (Art. 24) (texts reproduced in the United Nations Office for Outer Space Affairs (UNOOSA) brochure available at: http://www.unoosa.org/pdf/publications/STSPACE11E.pdf, pp 3 and 9). 103 eg the Universal Copyright Convention of 6 September 1952 is open to accession (and signature) by any State. 104 Of 10 December 1982 (A/CONF.62/122 and Corr. 4) (UNTS, vol. 1833, p 3). 105 See S. Rosenne, ‘La participation à la Convention sur le droit de la mer’ in D. Bardonnet and M. Virally (eds), Le nouveau droit international de la mer (Paris: Pedone, 1983), p 287. 106 See Res. 2166 (XXI) of 5 December 1966. 107 See the commentary on these provisions. 108 See Official Records, Summary Records, 36th entire session. The text of the Declaration is reproduced in S. Rosenne, The Law of Treaties. A guide to the Legislative History of the Vienna Convention (Leiden: Sijthoff; New York: Oceana, 1970), pp 160–1. See also S. Bastid, Les traités dans la vie internationale—Conclusion et effets, supra n 63, pp 54 and 64. 109 According to the proponents of the ‘any State’ formula, this situation involves, as stated supra, ‘general multilateral treaties, negotiated on a universal scale, whose purpose is to impose norms of conduct applicable to all States’. 110 See again, the Millennium Report of the United Nations Secretary-General which welcomes the increase of this trend, A/54/2000, especially para. 328. 111 This is the case of treaties drawn up by regional organizations. For example, the American Convention on Human Rights, of 22 November 1969, is open only to member States of the Organization of American States (OAS) (Art. 74, text available on the official website of the OAS at: http://www.oas.org/juridico/English/treaties/b-32.html); in the same way, the African Charter on Human and Peoples' Rights, of 27 June 1981, is open to the participation of member States of the Organisation of African Unity (Art. 63, UNTS, 1988, pp 217 ff). 112 The combination of Arts 49 (former Art. O) and 6(1) (former Art. F) of the Treaty on the European Union provides that accession candidates must, in addition to being European States, respect ‘principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law’. In this particular case, considering the number of conditions posed and the practice of a very long negotiation process between parties to the treaty, the candidate State and the institutions created by the treaty, the question is raised of whether this is still a matter of joining the treaty. Further, as will be seen, recourse to the participation of corporate bodies is creating a shift towards the admission process adopted by international organizations. 113 eg in the case of treaties adopted to complete other treaties (generally termed ‘Protocols’), there exists a condition of accession, considered logical in the circumstances: the accession candidate must already be a party to the principal or initial treaty. See the Protocol to the Antarctic Treaty on Environmental Protection, of 4 October 1991 (Art. 22, text reproduced in 30 ILM 1461). 114 See the analysis of J. Combacau, Le droit des traités, supra n 8, pp 45–6, relied on here. 115 Thus, in most treaties, it is simply accepted that all States can accede. The depositary needs only to rule on the reception of the instrument of accession (a material fact) from a new party to the treaty, before informing the other member States of that fact. 116 Ibid, p 46. It must be assumed that in this case, accession produces effects for all parties, unless they issue a reservation on the matter. If this is the case, in accordance with the traditional mechanism of reservations, a network of obligations is created which can differ from party to party. State A could refuse, by a reservation, to consider itself bound by the treaty with regards to State B, without preventing State A being bound by the same treaty with State C. See eg YILC, 1966, vol. II, p 208. 117 eg the Antarctic Treaty of 1 December 1959 provides, by the combination of Arts 13, 9, and the first para. of the Preamble, that only the 12 original parties may rule on the accession of a State which is not a State member of the United Nations (UNTS, 1961, pp 71 ff). Political or military alliances generally also provide for a procedure of this nature. 118 See YILC, 1965, vol. II, p 33.

119 Taking the example of the United Nations, the substantive conditions for participation in the UN Charter, that is admission as a member of the Organization, appear easy to fulfil. One must be a ‘pacific’ State, accept the obligations of the Charter, and be able and willing to carry them out (Art. 4(1)). 120 Article 3 of the Statute of the Council of Europe provides that the candidate must recognize ‘the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms’. 121 Agreements exist (or have previously existed) which have been concluded between States main producers and importers of certain commodities and have thereby created organizations. Such is the case of agreements on staple products adopted according to the model of the Havana Charter of 24 March 1948, such as the Coffee Agreement (1975, 2001), the Sugar Agreement (1977, 1984, 1987, 1992), or the Cocoa Agreement (1978, 1980, 1986, 2001). A more topical example may also be noted: all States exporting a ‘substantial net export of crude petroleum’ may become members of the Organization of Petroleum Exporting Countries (Art. 7(C) of the Statute of the Organization). Formerly, however, these Statutes were not adopted by means of a treaty. Rather, they resulted from a resolution adopted by the Second Conference, at Caracas, in January 1961; see G. Fischer, ‘L'Organisation des pays exportateurs de pétrole’, AFDI, 1961, esp. pp 167–8. 122 On this point, again, see J. Combacau, Le droit des traités, supra n 8, p 46. 123 Evidently, if it is the corporate body itself that adopts the act, the organization is thus committed. See the analysis of C. de Visscher, Ann IDI, 1957, vol. 47-II, pp 274–327. 124 See Conditions on the Admission of a State to Membership in the United Nations (Article 4 of the Charter), Advisory Opinion of 28 May 1948, ICJ Reports 1947–1948, p 57; and Competences of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion of 3 March 1950, ICJ Reports 1950, p 4. 125 Admission can thus be characterized as: ‘…the combinated effect of a unilateral act and a collective responsive decision made on a collective basis and binding upon all present and future members of the Organization…’: S. Rosenne, ‘Is the Constitution of an International Organization an International Treaty? Reflections on the Codification of the Law of Treaty’, Comunicazioni e studi (1966), p 55. 126 On this point, see P. Daillier and A. Pellet, Droit international public, supra n 40, p 581: ‘Les Etats qui ont créé une organisation tirent de leur souveraineté le droit d'en contrôler l'accès et d'imposer aux autres Etats une procédure de cooptation’. In the case of the UN, the Charter, creating a right for non-member States to become members of the Organization, has been perceived as placing such States in a corporate capacity. Both the text of the Charter and its preparatory works cast serious doubt on this view. On this point, see, notably, S. S. Hsueh, L'Organisation des Nations Unies et les Etats non membres (Geneva: United Nations, 1953), pp 59–60. S. Rosenne also shares this opinion when he notes a contrario the example of the Universal Postal Union. However he accepts the opinion that this process simply involves the right of a non-member State to ask for its admission (ie to apply for) and to be treated in the same manner as all other non-members; see S. Rosenne, ‘Is the Constitution of an International Organization an International Treaty? Reflections on the Codification of the Law of Treaty’, supra n 125, pp 53–4, fns 88 and 89. 127 The only substantial condition required by most treaties of this nature is membership of the UN. Such is the case for most of the specialized institutions of the UN system. 128 On this point see P. Reuter, Les organisations internationales: problèmes choisis, Cours de droit international public de D.E.S., 1954–55, Paris, Les cours de droit, p 98, who cites the example of the Universal Postal Union up until 1947. See the mention of these cases in the collective minority opinion of judges Basdevant, Winiarski, McNair, and Read, under ICJ, Conditions of Admission of a State to Membership in the United Nations (Art. 4 of the Charter), Advisory Opinion of 28 May 1948, ICJ Reports 1947–1948, p 85: ‘…the Charter does not follow the model of the multilateral treaties which create international unions and frequently contain an accession clause by virtue of which a declaration of accession made by a third State involves automatically the acquisition of membership of the union by that State’. 129 eg in the case of the European Union, Art. 49 (former Art. O) provides for the participation of the Council, the Committee, and the European Parliament, an agreement between the members and the candidate State, and, finally, a ratification of this agreement by each of the member States. Three successive mechanisms therefore exist: one corporate, another collective, and a third that requires the uti singulus involvement of each party concerned. 130 With very different motivations, see on this point J. Basdevant, ‘La conclusion et la rédaction des traités et des instruments diplomatiques autres que les traités’, supra n 34, pp 587 ff; H. Kelsen, ‘Contribution à la théorie du traité international’, Revue internationale de la théorie du droit, 1937, p 291; G. Scelle, Précis du droit des gens. Principes et systématique (Paris: Sirey, 1934), p 380. 131 Principally, D. Anzilotti, Cours de droit international, supra n 17, esp. pp 428–32; and G. Balladore-Pallieri, ‘La formation des traités dans la pratique internationale contemporaine’, RCADI, vol. 74, 1949-I, pp 515–19. 132 Report on the Law of Treaties by G. G. Fitzmaurice, A/CN.4/101, 14 March 1956, YILC, 1956, vol. II, p 125, para. 86. 133 Fourth Report, Sir Humphrey Waldock, A/CN.4/177 and Add.1 and 2, YILC, 1965, vol. II, p 40, para. 4. This opinion is also present in Waldock's First Report, YILC, 1962, vol. II, p 175,

para. 1. 134 See on this point the participation of S. Rosenne, 793rd meeting, YILC, 1965, vol. I, p 140, para. 70. 135 A/55/10, p 161. See the Third Report of M. Victor Rodriguez-Cedeño on unilateral acts. See A/CN.4/505, and A/CN.4/511 for the States' responses to the questionnaire (collected after the Third Report). 136 This has also been the general tendency in doctrinal law, concerning the definition of a unilateral act, since the decisions of the Court in the 1974 Nuclear Tests Case; see ICJ, Nuclear Tests, Judgments of 20 December 1974, ICJ Reports 1974, pp 253 and 457 (p 267 for the definition of a unilateral act). 137 However this consideration is rarely retained by international academics. Generally, they consider that the unilateral act ‘is sufficient in itself to produce its own legal effects’. As such, the issuing of a will—ie the effect of the unilateral act itself—is not distinguished from the effects which will result from the admission of this will by the other parties—ie the effects of the agreement. This view is held by G. C. Venturini, ‘La portée et les effets juridiques des attitudes et des actes unilatéraux des Etats’, RCADI, 1964-II, vol. 112, pp 363–468 (citation at p 400); or E. Suy, Les actes juridiques unilatéraux en droit international (Paris: LGDJ, 1962), p 290. 138 The definition provided by Anzilotti can be recalled here: En disant que, dans les actes unilatéraux, le droit requiert la manifestation de volonté d'un seul sujet, on veut dire que cette volonté est la seule à intervenir d'une façon principale. Ceci n'exclut pas que la volonté ou l'action d'autres sujets doivent concourir d'une façon subordonnée, ni que ces sujets puissent, par leur attitude, empêcher que la volonté manifestée devienne efficace. He added: …la déclaration de volonté devient l'élément constitutif d'un accord duquel, et non pas de la déclaration individuelle, dérivent les effets juridiques dont il s'agit. (D. Anzilotti, Cours de droit international, supra n 17, pp 345–6). 139 This would be the first part of the agreement between the States parties to the treaty and the adherent State: …le consentement des parties originaires est déjà exprimé dans la clause d'adhésion qui, dans les rapports entre lesdites parties, crée l'obligation réciproque de stipuler avec le tiers aux conditions données et qui, au regard du tiers, constitue une offre de stipuler à laquelle, sauf dispositions différentes, manque seulement l'acceptation pour devenir obligatoire. (ibid, pp 430–1) 140 This is constituted by an ‘accession clause’ contained in the treaty and is commonly found in multilateral treaties. See eg the analysis and examples provided in the commentary to the Harvard Project (supra n 19, p 827). See also Ch. Rousseau, Droit international public (Paris: Pedone, 1952), p 37: ‘… L'adhésion-accord des XVIII et XIX siècles faisant rapidement place à l'adhésion-acte unilatéral de l'époque contemporaine’. 141 D. Anzilotti, Cours de droit international, supra n 17, p 427: ‘…rien n'empêche qu'elle puisse également se manifester rebus ipsis et factis’. And, ibid, p 432: Ceci n'empêche ni que la clause d'adhésion puisse, explicitement ou implicitement, admettre la possibilité d'autres formes de la manifestation de la volonté d'adhérer, ni que les parties originaires puissent ensuite donner leur consentement à des adhésions différentes de celles prévues dans le traité. 142 See on this point D. Anzilotti, Cours de droit international, supra n 17, p 346 for a general theoretical explanation and ibid, p 430 for its application to the accession process. 143 On this point, eg S. Bastid, Les traités dans la vie internationale—Conclusion et effets, supra n 63, p 64. 144 He added: La puissance qui accède devient partie contractante directe, en obtenant par son accession tous les droits et en se chargeant de toutes les obligations qui lui seraient échus ou qui auraient été mises à sa charge, si elle eût signé immédiatement le document principal. (P. Pradier-Fodere, Traité de droit international public européen et américain suivant les progrès de la science et de la pratique contemporaines, supra n 42, p 829) 145 Article 12(e): ‘When an accession becomes effective, the acceding State thereupon becomes a party to the treaty upon a basis of equality with other parties’, Harvard Law School, Draft Conventions on the Law of Treaties, supra n 19, p 838. See also the commentary on the provision at pp 838–9 and the numerous references to literature cited in support thereof. 146 A/CN.4/101, 14 March 1956, YILC, 1956, vol. II, p 125, para. 86: ‘It makes the acceding State a party to the treaty, with all the rights and obligations of a party’. The Rapporteur also cites P. Pradier-Fodéré's concept in extenso here. 147 L. McNair, The Law of Treaties, supra n 20, p 153. The author is less clear on this point, adding a qualification to his principle: ‘in the absence of provision to the contrary’. See also

the opposing point of view of Sir Robert Phillimore in 1863, cited ibid, fn 1. 148 Such as P. Daillier and A. Pellet, Droit international public, supra n 40, p 176, about a ‘principe selon lequel les Etats adhérents ont exactement les mêmes droits et prérogatives que les parties originaires’. 149 See those examples of treaties cited in Harvard Law School, Draft Conventions on the Law of Treaties, supra n 19, pp 838–9. 150 NRGT, 3rd series, vol. 12, p 173; CTS, vol. 168, p 185. 151 See on this point D. Anzilotti, Cours de droit international, supra n 17, p 430; Harvard Law School, Draft Conventions on the Law of Treaties, supra n 19, p 839. 152 One example is cited in the Harvard Project (ibid): a Protocol to the Convention on Civil Procedure of 17 July 1905, adopted on 4 July 1924. * Lecturer in Public Law, Paul Cézanne Aix-Marseille III University; Member of the Centre d'Etudes et de Recherches Internationales et Communautaires (CERIC). I would like to thank Clare McKay for superlative assistance, comments, and suggestions.

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Volume I, Part II Conclusion and Entry into Force of Treaties, s.1 Conclusion of Treaties, Art.15 1986 Vienna Convention Jean-François Marchi From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Codification — Customary international law

(p. 332) 1986 Vienna Convention Article 15 Consent to be bound by a treaty expressed by accession The consent of a State or of an international organization to be bound by a treaty is expressed by accession when: (a) the treaty provides that such consent may be expressed by that State or that organization by means of accession; (b) it is otherwise established that the negotiating States and negotiating organizations or, as the case may be, the negotiating organizations were agreed that such consent may be expressed by that State or that organization by means of accession; or (c) all the parties have subsequently agreed that such consent may be expressed by that State or that organization by means of accession. 1. Article 15 of the 1986 Convention did not incur substantive modifications as compared to its counterpart in the 1969 Convention. The only changes to the Article are editorial in nature, necessitated by the need to take into account international organizations. 2. Two minor questions arose during the work of the ILC, giving rise to debates that were promptly concluded. The first concerned a distinction between the consent ‘expressed’ by a State and consent that was ‘established’ by an international organization. Whilst in 1972, the First Report of Mr Reuter made no mention of this subtlety,1 his 1975 Report suggested a version of Article 15 that was divided into two paragraphs and thus recognized the distinction.2 The case of States was addressed in the first paragraph and that of international organizations in the second. This distinction in the Article spring from a view that considered the term ‘express the consent’ inappropriate with regards to representatives of international organizations. Where the constitutional texts of an organization made no reference to the representative's competence in fulfilling this role, the risk perceived was that junior representatives of that organization could not only communicate the consent in question but also define it.3 Given the silence of the Commission's members on this point, the simple option not to make such a distinction was eventually accepted.4 The framework of Article 15 of the 1986 Convention is therefore identical to its equivalent in the Convention of 1969.

References (p. 333) 3. A second minor question was raised during the drafting of this Article within the ILC. In the view of Mr Ouchakov, it was impossible to envisage the subsequent accession of States to a treaty concluded solely between international organizations.5 Yet this position remained very isolated. Insofar as the 1969 Convention did not consider the opposite situation, of treaties concluded solely between States and to which international organizations could adhere, it was considered unnecessary to distinguish this particular situation.6 Article 15, which did not give rise to any particular problems, was adopted in this form at the Vienna Conference without debate.7 *

JEAN-FRANÇOIS MARCHI

Footnotes: 1 See A/CN.4/258 of 3 April 1972, YILC, 1972, vol. II, p 171. 2 See A/CN.4/285 of 21 March 1975, YILC, 1975, vol. II, p 181. Article 15 of the Fourth Report presented by Paul Reuter showed the same unity as that found in the final version of the Convention, but the Special Rapporteur suggested in his commentary that the Article be divided in two: see YILC, 1975, vol. I, p 227, para. 3. 3 See YILC, 1975, vol. I, p 227, para. 3. This suggestion resulted in part from a recognition of the view expressed earlier by Mr Ouchakov, the only member of the Commission opposed to the initial opinion of Paul Reuter: see 1347th meeting, YILC, 1975, vol. I, p 230, paras 26–7. 4 See the Tenth Report of Paul Reuter, Doc A/CN.4/341 and Add.1 to 3 of 6 April 1981, YILC, 1981, vol. II, p 55, para. 49 and p 133 and the succinct debates, YILC, 1981, vol. I, pp 26–7, paras 5–9. For the adoption of the fusion of the two paragraphs, see ibid, p 190, para. 47. 5 See the commentary on the unified provision in the Tenth Report of Paul Reuter, Doc A/CN.4/341 and Add.1 to 3 of 6 April 1981, YILC, 1981, vol. II, p 133. 6 Ibid. 7 See Official Records, Summary Records, 1st session, 5th meeting, 18 March 1986, p 13, para. 51. * Lecturer in Public Law, Paul Cézanne Aix-Marseille III University; Member of the Centre d'Etudes et de Recherches Internationales et Communautaires (CERIC). I would like to thank Clare McKay for superlative assistance, comments, and suggestions.

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Volume I, Part II Conclusion and Entry into Force of Treaties, s.1 Conclusion of Treaties, Art.16 1969 Vienna Convention Ferhat Horchani, Youssri Ben Hammadi From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Treaties, ratification — Treaties, entry into force — Customary international law — Treaties, binding force — Treaties, conclusion

(p. 334) 1969 Vienna Convention Article 16 Exchange or deposit of instruments of ratification, acceptance, approval or accession Unless the treaty otherwise provides, instruments of ratification, acceptance, approval or accession establish the consent of a State to be bound by a treaty upon: (a) their exchange between the contracting States; (b) their deposit with the depositary; or (c) their notification to the contracting States or to the depositary, if so agreed. A. General characteristics 335 Object and purpose 335 Customary status 337 B. Exchange of instruments 339 C. Deposit of instruments 341 The principle 341 Forms and procedures 346 Scope of the principle 348 Absence of deposit and opposite intention 348 Moment of the establishment of consent and implementation of reservations 350 D. Notification of instruments 351 E. Choice of other solutions 353

Bibliography Adam, H. T., Les organismes internationaux spécialisés, Contribution à la théorie générale des Etablissements publics internationaux (Paris: LGDJ, 1965), 2 vols Arright, J.-M., ‘Les réformes à la Charte de l'Organisation des Etats américains: problèmes de droit des traités’, AFDI, 1997, pp 93–104 Aust, A., Modern Treaty Law and Practice (2nd edn, Cambridge: Cambridge University Press, 2007) Basevant, J., ‘La conclusion et la rédaction des traités et des instruments diplomatiques autres que les traités’, RCADI, 1926-V, vol. 15, pp 535–643 Brillat, R., ‘La participation de la Communauté aux Conventions du Conseil de l'Europe’, AFDI, 1991, pp 819–32 Colliard, Cl.-A., Droit international et histoire diplomatique. Documents choisis, Book I (3rd edn, Paris: Montchrestien, 1955) —— and Manin, A., Droit international et histoire diplomatique. Documents choisis, Book II (Paris: Montchrestien, 1970) Daillier, P. and Pellet, A., Droit international public (7th edn, Paris: LGDJ, 2002) Decaux, E., ‘L'arrêt de la C.I.J. dans l'affaire des actions armées frontalières et transfrontalières (Nicaragua c/Honduras), Compétence et recevabilité, 20 décembre 1988’, AFDI, 1988, pp 147–67 Dehaussy, J., ‘Le dépositaire de traités’, RGDIP, 1952, pp 489–523 (p. 335) Fitzmaurice, M., ‘The optional clause system and the law of treaties: Issues of interpretation in recent jurisprudence of the international Court of Justice’, Australian Yearbook of Int'l L, 1999, vol. 20, pp 127–59 Frumer, Ph., ‘Entre tradition et créativité juridiques: la jurisprudence de la Cour interaméricaine des droits de l'homme’, RBDI, 1995, vol. 2, pp 514–39 Lang, C., L'affaire Nicaragua/Etats-Unis devant la Cour internationale de Justice (Paris: LGDJ, 1990) Reuter, P., Introduction au droit des traités (Paris: PUF, 1972) Rousseau, Ch., Droit international public, vol. I (Paris: Sirey, 1970) Thierry, H., Cours de droit international public, fasc. I, les cours de droit (1970)

A. General characteristics Object and purpose 1. The expression of the consent of a State to be bound by a treaty and the establishment of this consent on the international plane do not always coincide in time and constitute two distinct acts. If the ratification, as a mode of expression of consent, constitutes the final approval of a treaty, it does not mark the moment when one can consider the consent of a State to be bound by a treaty as being clearly established. It is only the coexistence of ratifications emanating from signatory States that ensures the perfection of the treaty. This coexistence is materialized by exchange or deposit or notification of ratifications which is an operation intended to bring every particular ratification officially to the knowledge of the

governments of other signatory States. 2. The object of Article 16 is precisely to indicate this ‘critical date’ and to determine exactly the moment at which the consent of a State to be bound by a treaty can be established and can take effect regarding other contracting States.1 The provision is therefore necessary and applies to treaties the parties to which have regularly fulfilled all formalities of conclusion and particularly procedures of ratification or accession prescribed by their constitutions and by the treaty itself. As a result, Article 16 concerns only formal agreements governed by the regime envisaged by Articles 13, 14, and 15 of the Vienna Convention. A contrario, the provision does not apply to agreements concluded in simplified form.2 3. Article 16 is inserted in section 1 of Part II of the Convention entitled ‘Conclusion of treaties’ and more particularly among provisions relating to modes of expression of the consent to be bound. Actually, although relating to a question which concerns the conclusion of treaties (exchange or deposit or notification of instruments), the object (p. 336) of Article 16 can differ, as to its effects, according to the relevant provisions of each type of treaty. For certain bilateral or even multilateral treaties, exchange, deposit, or notification of instruments expressing consent to be bound, will have the effect of triggering their entry into force all at once.3 This is not the case for most multilateral treaties the entry into force of which is subject to conditions relating to the number of ratifications or accessions and to the moment at which the treaty take effect vis-à-vis others States which become parties by depositing their instrument of ratification or accession. In these cases, the solutions are diverse; the establishment of consent, as envisaged by Article 16—as an integral part of the conclusion of the treaty—is obviously distinct from its entry into force governed by Article 24 of the Convention.4 The agreement relating to the implementation of Part XI of the United Nations Convention on the Law of the Sea adopted on 28 July 1994, illustrates this differentiation. According to its Article 6: 1. This Agreement shall enter into force 30 days after the date on which 40 States have established their consent to be bound… 2. For each State or entity establishing its consent to be bound by this Agreement after the requirements set out in paragraph 1 have been fulfilled, this Agreement shall enter into force on the thirtieth day following the date of establishment of its consent to be bound.5 So, the deposit of the instrument of ratification will mark for an important number of multilateral conventions the moment when it may be considered that the consent of a State to be bound by the said treaty is clearly established. Nevertheless, in practice, this consent will produce concrete legal effects only later, when the treaty requires a certain number of ratifications or accession for its entry into force, or a certain period if the treaty is already in force on the international plane, so that rights and obligations which it enunciates produce their effects in relation to the States which become parties.6 Ultimately, for these treaties the establishment of consent would be a type of intermediate stage between, on the one hand, the expression of this consent which has already been performed and, on the other hand, the entry into force of the treaty which has yet to be performed. Moreover, certain aspects of Article 16 must be read in relation to certain problems raised by other provisions of the Convention: Article 77 relating to functions of the depositary, Article 78 relating to notifications and communications, and Article 20 relating to reservations.7 But the dilemma which constitutes the main object of this Article is to determine at which moment consent to be bound by a treaty is established and takes effect regarding the other contracting States.8

References

(p. 337) Customary status 4. There is no doubt that Article 16 codifies a well-established customary rule. This can be concluded from the debates relating to this Article within the ILC, at the Vienna Conference,9 as well as from State practice. 5. Draft Article 16 did not give rise to any substantial debate within the discussion of the draft by the ILC. It was subject to a few editorial and formal adjustments before the adoption of the final text by the Conference.10 In relation to the title of the Article, while in the draft of 1965 and 1966 (former Art. 15), ‘accession’ came after ratification and therefore before acceptance and approval, the final version resolved this editorial problem by inserting accession last in accordance with practice in that area.11 In the first sentence of the Article, the draft of 1965 did not use the expressions ‘establish the consent of a State to be bound by a treaty’ or ‘at the moment of’ embodied in the final text.12 The wording used in 1965 was not clear: ‘… instruments…take effect by…’.13 It was an important improvement. It indicates expressly that the object of the provision is the ‘moment’ at which the treaty takes effect or, in other words, the establishment of the consent of the State to be bound by the treaty. The third modification is of minor importance; it concerns the hypothesis of notification envisaged in paragraph (c). By stipulating only ‘by notification…’, the 1965 draft omitted to specify the object of the notification. The final text, as the 1966 draft, removed that ambiguity by specifying that the notification concerns the instruments mentioned in the first sentence of the Article.14 6. The codifying character of Article 16 can be established both as regards the exchange of instruments between contracting States and their deposit with the depositary or their notification between contracting States or to the depositary. The rule of the establishment of consent at the moment of the exchange of instruments was upheld a long time before by the practice of States.15 The Vienna Convention merely codified a well-established custom, broadly asserted by doctrine. Charles Rousseau wrote in this respect: ‘[t]oday, it is beyond doubt that

the treaty is concluded only by the exchange of ratifications between the contracting parties’.16 The rule has also been confirmed by the International Court of Justice (ICJ) in the case concerning the Arbitral award made by the King of Spain on 23 December 1906.17 This is the same as the rule of establishing consent at the moment of (p. 338) the deposit of instruments with the depositary codified in paragraph (b) of Article 16. This form, which appeared at the beginning of the nineteenth century in order to simplify the procedures of conclusion of treaties, inevitably conferred to the temporal dimension of the act of deposit an essential importance. According to Jules Basdevant ‘it became the most common [form] in collective treaties’.18 Subsequent practice confirmed the codifying character of the provision.19 The doctrine is unanimous in this regard.20 Finally, the ‘well established character of the existent rule’ was recognized by the ILC21 and proclaimed by the ICJ in jurisprudence from the case concerning the Right of passage over the Indian territory.22 Finally, the establishment of consent at the moment of notification of the instruments (Art. 16(c)) confirms the codifying status of the provision. State practice dates back to the beginning of last century.23 In spite of its particular character,24 this procedure, as well as the two others, can be considered as codifying international custom.

References 7. Three hypotheses of variable importance giving rise to very unequal difficulties envisaged by the three paragraphs of Article 16 shall be distinguished: the consent of the State is established either at the moment of exchange, or of deposit, or of notification of the instruments of ratification, acceptance, approval, or accession. The provision nevertheless has an auxiliary character; States remain free to choose other solutions.

(p. 339) B. Exchange of instruments 8. Unless the treaty otherwise provides, it is from the date of the exchange of letters or instruments of ratification, acceptance, approval, or accession that the treaty is binding on signatory States.25 This formality puts the fact of ratification beyond doubt; it proves that constitutional procedures were carried out and that the treaty, internationally ‘perfect’, definitely binds the State. 9. When there is an exchange of instruments difficulties may arise.26 The moment at which the treaty becomes ‘perfect’ is when exchange occurs, generally in the capital city of one of the contracting States and embodied in a procès-verbal or protocol of exchange of ratification the object of which is to make official the act of the exchange and to determine its exact date. Nevertheless, whether the exchange of instruments has to be performed simultaneously is not prescribed. In that case, the effective date of the establishment of consent is that of the receipt of the second or the last instrument.27 However, one may think today that the hypothesis envisaged in paragraph (a) of Article 16 concerns only bilateral treaties or those binding a limited number of States.28 However, the hypothesis of the exchange of ratifications for multilateral treaties seems to be exceptional nowadays, particularly where there are a large number of contracting States.29 If this is the case, the consent of the signatory State to be bound will be established at the moment of exchange of the instruments of ratification with all other States30 or with a specific State only.31 In all these cases, Jules Basdevant pointed out that ‘the tradition of the bilateral treaty was so established…that the collective treaty would be formally analysed as series of bilateral treaties’.32 As a result, if the bilateral treaties enter into force by exchange (or by notification) of instruments, the date of the establishment of consent prescribed by Article 16(a) (p. 340) may be confused with that of the entry into force of the treaty envisaged by Article 24 of the 1969 Convention. A commonly used provision in this respect is to be found, for example, in the Eurotunnel treaty of 12 February 1986: ‘[t]he present treaty is subjected to ratification. It will enter into force the day of the exchange of the instruments of ratifications which will take place in [Paris]’.33

References 10. In the case concerning the Arbitral award made by the King of Spain, on 23 December 1906 (Honduras v Nicaragua), the question was whether the King of Spain, designated as arbitrator by the parties on 2 October 1904 and having accepted its functions on 17 October 1904, had been able legitimately to make an award on the basis of the treaty on 23 December 1906. The Court had to interpret the Gamez-Bonilla treaty which had been signed on 7 October 1894 by both States, the exchange of the instruments of ratification of which had been accomplished on 24 December 1896, and which had to expire, in accordance with its Article XI, ten years later.34 The Court has to consider two theses: • that of Honduras, which had argued that the treaty had entered into force only on the date of the exchange of ratifications (on 24 December 1896) and that the King of Spain was empowered to make his award one day before the expiry of the period of ten years; • that of Nicaragua, which argued that Article IX of the treaty had envisaged the beginning of its execution before the accomplishment of formalities of ratifications and exchange of ratifications, and according to which the period of ten years had to begin to run not from the date of the exchange of ratifications but from the date of the signature of the treaty, on 7 October 1894. As a result, according to Nicaragua, when the King of Spain made his award on 23 December 1906, the treaty had already expired (on 7 October 1904) and the award was to be considered invalid. 35

References 11. The Court upheld Honduras' thesis, by judging that ‘the intention of the Parties was that the Treaty should come into force on the date of exchange of ratifications and that the ten-year period specified in Article XI should begin to run from that date’.36 The judges based their argumentation on ‘the intention of parties’37 and on their unambiguous conduct within the arbitration procedure which gave rise to the disputed award. As a result, in the absence of an express provision concerning the date of establishment of consent of the State to be bound, the Court—the judgment of which was rendered prior to the adoption of the Vienna Convention—interpreted the silence of the treaty and adopted a presumption of ‘the exchange of ratifications’ on the basis of factual elements. It is not, of course, by chance that the solution reached by the ICJ in 1960 corresponded to that subsequently embodied in Article 16(a) of the Vienna Convention, even if one may prima facie suppose that the interpretation of ‘the intention of parties’ as well as of their conduct could have been different, which would have led to a different solution. (p. 341) 12. Could the expression ‘unless the treaty otherwise provides’ in the first sentence of Article 16 be interpreted as allowing the intention or conduct of parties to be sought, when the treaty does not contain an express provision in that respect? Would it be necessary, on the contrary, to confine ourselves to admitting the absence of an express provision and to apply invariably the general solution of Article 16? In fact, the argument according to which the sole implicit intention of the parties relies upon, hardly seems compatible with the text of Article 16, according to which it is the treaty which must provide otherwise. Even if it irrefutably reflects the non-formalistic approach of the Vienna Convention, the expression ‘unless the treaty otherwise provides’ in Article 16 contrasts with the more permissive formulation used in other provisions of the Convention where the opposite intention of parties is interpreted in a broad manner.38 Sometimes, this intention is apparently distinguished from hypotheses where the treaty expressly provides otherwise, in order to seek another solution than that retained by the Vienna Convention.39 Certainly, following the example of several other provisions of the Convention,40 the codifying rule of Article16 should be read as having due regard to the ordinary sense of the words. In accordance with the solution reached by the ICJ in 1960, consent is established at the moment of exchange of instruments unless the treaty explicitly provides otherwise. Any other solution is unlikely to grant the desired precision to the ‘critical date’, in order to determine with certainty the moment of establishment of consent to be bound by the treaty.

C. Deposit of instruments The principle 13. The procedure of the deposit of the instruments of ratification, acceptance, approval, or accession with the depositary identified by the treaty has the same legal value as a procès– verbal or a protocol of exchange of ratifications of bilateral treaties. The procedure is as established as multilateral treaties.41 It allows their entry into force on successive dates according to the wishes of the States.42 In some treaties, the deposit of instruments (p. 342) conditions not only the moment of the establishment of the consent of the State to be bound by the treaty but also that of its entry into force. This type of provision is provided by Article 61 of the Convention establishing the multilateral investment guarantee agency of 11 October 1985:43 (b)  This Convention shall enter into force on the day when not less than five instruments of ratification, acceptance or approval shall have been deposited on behalf of signatory States in Category One, and not less than fifteen such instruments shall have been deposited on behalf of signatory States in Category Two; provided that total subscriptions of these States amount to not less than one-third of the authorized capital of the Agency as prescribed in Article 5. (c)  For each State which deposits its instrument of ratification, acceptance or approval after this Convention shall have entered into force, this Convention shall enter into force on the date of such deposit. A comparable provision may be found in the constituent instruments of similar organizations44 or in conventions on the protection of human rights45 or in several other treaties.46

References 14. The procedure can apply not only to the basic treaty but also to modifications made to it and notably to amendments to the constituent treaties of international organizations. This is sometimes not without effect on the unity of the legal regime of the treaty, particularly when it envisages a dual regime relating to the successive entry into force of modifications made to it vis-à-vis other States.47

References 15. The determination of the ‘critical date’ actually constitutes the main question laid down by Article 16. The question is to know if the deposit is sufficient by itself to establish (p. 343) legal nexus between the depositing State and other contracting States or whether this legal nexus arises only upon their being informed of the deposit by the depositary.48 The answer of the ILC is clear: ‘[i]t is beyond doubt for the Commission that the existent general rule is that 49

it is the act of deposit that creates juridical bond’.49 The ILC acknowledges that this rule sometimes has the effect that some time elapses before each of the other contracting States becomes aware that the depositing State has established its consent to be bound by the treaty.50 But the ILC did not consider it necessary to propose a different rule, especially since its auxiliary nature allows States ‘to change it if they consider it necessary, having due regard to the provision of the treaty itself’.51

References 16. In the case concerning the Right of passage over Indian territory,52 the ICJ provided the Commission with a precedent which supported its opinion. In this case, the Court had to consider the deposit of declarations recognizing as compulsory the jurisdiction of the Court in accordance with Article 36, paragraph 2 of its Statute. The Court judged that it is the act of deposit by itself which establishes the legal nexus with other contracting States, unless the treaty otherwise provides.53 One may, of course, observe that the Court does not consider a ‘treaty’ in the sense of Article 16 and such as defined by Article 2(1)(a) of the Vienna Convention of 1969, but as a unilateral act. Without going into the detail of this debate which exceeds the scope of this commentary,54 it may be noted that the Court has recalled its jurisprudence and considered that: the regime for depositing and transmitting declarations of acceptance of compulsory jurisdiction laid down in Article 36, paragraph 4, of the Statute of the Court is distinct from the regime envisaged for treaties by the Vienna Convention. Thus the provisions of that Convention may only be applied to declarations by analogy.55 (p. 344) It may, however, be noted also that the Court had rightfully emphasized the consensual character of the complex mechanism instituted by Article 36 of its Statute, which by the system of reciprocity creates a nexus of a conventional type. Even if the Court admitted that there may exist some element of uncertainty regarding all signatories inherent to the operation of the system of optional clauses during the interval between the date of the deposit of a declaration with the Secretary-General and its receipt by States parties to Statute, the Court stated clearly that by the deposit of its Declaration of Acceptance with the SecretaryGeneral, the accepting State becomes a party to the system of the optional clause in relation to the other declarant States, with all the rights and obligations deriving from Article 36. The contractual relation between the parties and the compulsory jurisdiction of the Court resulting therefrom are established ‘ipso facto and without special agreement’ by the fact of the making of the Declaration. It is in effect on that day that the consensual bond which is the basis of the optional clause, comes into being between the States concerned.56 The Court added that the declaring State ‘is not concerned with the duty of the Secretary-General or the manner of its fulfilment. The legal effect of a Declaration does not depend upon subsequent action or inaction of the Secretary-General…’ in the accomplishment of his administrative tasks as a depositary.57 Moreover, unlike some other instruments:58 Article 36 provides for no additional requirement, for instance, that the information transmitted by the Secretary General must reach the Parties to the Statute, or that some period must elapse subsequent to the deposit of the Declaration before it can become effective. Any such requirement would introduce an element of uncertainty into the operation of the Optional Clause system.59 The jurisprudence of the ICJ in the case concerning the Right of passage over Indian territory was reaffirmed in the case of the Temple of Preah Vihéar where the Court pointed out that ‘the only formality required is the deposit of the acceptance to the Secretary-General of the United Nations under paragraph 4 of Article 36 of the Statute’.60 It was confirmed again in the case concerning the Land and maritime boundary between Cameroon and Nigeria, where the ICJ rejected Nigeria's contention to overturn the precedent of the Right of passage over Indian territory,61 and recalled that: (p. 345) contrary to what is maintained by Nigeria, this Judgment is not an isolated one. It has been reaffirmed in the case concerning the Temple of Preah Vihéar and in the case concerning Military and Paramilitary Activities in and against Nicaragua.62 Then, referring to the law of treaties, the ICJ noted, for the first time, that: This general rule is reflected in Articles 16 and 24 of the Vienna Convention: the deposit of instruments of ratification, acceptance, approval or accession to a treaty establishes the consent of a State to be bound by a treaty; the treaty enters into force as regards that State on the day of the deposit.63 The Court concluded: Thus the rules adopted in this sphere by the Vienna Convention correspond to the solution adopted by the Court in the case concerning Right of Passage over Indian Territory. That solution should be maintained.64

References 17. Finally, the affirmation of the principle of the establishment of consent by the deposit of the instruments of ratification, acceptance, approval, or accession embodied in Article 16(b) is in no way contradicted by Article 78(c) relating to notifications and communications. Prima facie, this latter provision seems to create confusion regarding the rule codified by Article 16

and recognized both by doctrine and by jurisprudence. It indeed provides that: Except as the treaty or the present Convention otherwise provide, any notification or communication to be made by any State under the present Convention shall:… c) if transmitted to a depositary, be considered as received by the State for which it was intended only when the latter State has been informed by the depositary in accordance with Article 77, paragraph 1(e).65 In its Report to the General Assembly, the ILC explained that, if the exception with regard ‘to the present Convention is emphasized in the first words of sentence [of the future Article 78], it was primarily to prevent any misconception as to relation’ between that Article and the future Articles 16 and 24.66 That is why the Commission concluded that ‘in any hypothesis the particular provisions of those latter will prevail’.67 According to the Commission, Article 78(c) ‘is not an integrant part of the process by which is established the legal bond between the State which performs deposit and other contracting States’.68 It may be maintained that Article 78(c) upholds a contrary rule requiring receipt by other States. However, this Article provides that ‘[e]xcept as…the present Convention otherwise provides…’, that is precisely the case of Article 16; as a result, it is the rule of deposit envisaged by this latter that will prevail over that of Article 78. In the (p. 346) case concerning the Land and maritime boundary between Cameroon and Nigeria of 1998, the ICJ refers to the different nature of both provisions and, as a result, to their distinct scope. In fact, for the Court: in any event…Article 78 of the Convention is only designed to lay down the modalities according to which notifications and communications should be carried out. It does not govern the conditions in which a State expresses its consent to be bound by a treaty and those under which a treaty comes into force, those questions being governed by Articles 16 and 24 of the Convention.69 This argument was supported by doctrine.70

References

Forms and procedures 18. The deposit envisaged in Article 16 covers various instruments71 but within a limited list: ratification, acceptance, approval, and accession. Other instruments are concerned inasmuch as they are related to the deposit of the main ‘treaty’. It is notable in the case of notifications of provisional application (Art. 25), of territorial application (Art. 29), or even of reservations to treaties (Art. 20(4)(c).72 The common character of these instruments is that they bind the State interested at the moment of their deposit with the depositary.73 19. The conditions of validity of the instrument must, of course, be fulfilled and must express unambiguously the consent of the State and its will to comply with the provisions of the treaty. So, when the treaty envisages suspensive conditions to be fulfilled at the moment of deposit, the Secretary-General of the United Nations as depositary of treaties does not accept the instrument in deposit when those conditions are not fulfilled.74 It is (p. 347) also the case for numerous conventions, such as the Convention of the International Maritime Satellites Organization of 3 September 1976.75 It is only upon receipt of the instruments fulfilling these conditions that the deposit is presumed to be accomplished and the time limit for the establishment of consent begins to run.76

References 20. In principle, deposit can be performed at any moment unless the treaty prescribes, for example, that an instrument of accession cannot be accepted before a precise date or before the entry into force of the treaty or according to conditions provided by the treaty. According to the practice of the Secretary-General of the UN, the consent of the State is supposed to be established only at the date prescribed by the treaty, even when the concerned State performs deposit before this date.77 21. Instruments take effect only when they are deposited with the entity entrusted by the treaty to this effect; if the depositary is an international organization, the deposit must be accomplished at its headquarters. According to the practice of the Secretary-General of the UN, deposit is made either by means of direct deposit of the instrument with the SecretaryGeneral or to his representative by a representative of the concerned government, or by postal means.78 It is evident that, in the latter case, consent is established not as from the communication of the instruments but as from its receipt by the depositary,79 since the first option can introduce doubt or divergence on the date of the sending of instruments by the signatory State.80 The instrument is presumed to have been deposited when it is received by the depositary even if, in practice, it is necessary to perform verification which may take some time.81

References 22. By providing that the establishment of consent of the State to be bound by the treaty is performed at the moment of deposit to the depositary or to his representative or by notification of the various envisaged instruments, Article 16 seems to point out that the depositary must indicate the exact date of deposit or notification so that it can notify (p. 348) other States parties not only of the fact of deposit or notification (with possible reservations or declarations) but especially to inform them of the date at which the consent of the concerned 82

State is established.82 23. Normally, deposit needs the accomplishment of certain procedures: deposit by the State of the unique copy of its instruments of ratification, acceptance, approval, or accession, execution of a procès-verbal of deposit indicating its date, and transmission by the depositary to every State of a certified copy of this procès-verbal.83 In practice, however, it seems that it is no longer usual, at least in the recent practice of the Secretary-General of the UN, to establish a procès-verbal of deposit. When conditions relating to the validity of the instrument related to deposit are fulfilled, the Secretary-General ascertains receipt of the instrument by pointing out the date of deposit and immediately publishing an announcement to that effect in the United Nations Journal accompanied by a note specifying the date and, then, informing other parties of the deposit through notification.84 Finally, when deposit has an immediate legal effect for the entry into force of a treaty vis-à-vis the depositing State, the SecretaryGeneral specifies the date at which this effect should begin to run.85

References 24. Once consent is established at the moment of deposit, can the concerned State withdraw its instrument and perform a new deposit at another moment including, for example, reservations? The Vienna Convention is silent on this question. The practice, at least that of the Secretary-General of the UN, is permissive in this respect; it allows such a withdrawal until the entry into force of the treaty.86

Scope of the principle Absence of deposit and opposite intention 25. Can the unambiguous and clear conduct of a State replace the formal act of deposit? In other words, does the formal absence of the deposit of the instrument with the depositary prescribed in the treaty vitiate only the form without affecting the establishment of the consent of the State to be bound, when of course the intention to be bound is clear? The rule expressed in Article 16 allows only one interpretation: it is the formal act of deposit of instruments with the depositary which establishes the consent of the State to be bound, unless the treaty explicitly provides otherwise.87 (p. 349) 26. This rule was recalled by the ICJ in the case of Military and paramilitary Activities in and against Nicaragua regarding the complex question of the transfer to the ICJ of declarations of acceptance made at the time of the Permanent Court of International Justice (PCIJ) and which implementation, in accordance with the clause of succession envisaged by Article 36(5) of the Statute, is clearly different under the auspices of both jurisdictions.88 By confirming its previous case law in Right of passage over Indian territory, the Court refused to take into account the conduct of the State (in this case, Nicaragua) to replace the formal act of the deposit of the instrument of ratification as envisaged by the Statute of the PCIJ.89 For the Court, in fact: ‘Nicaragua, due to the fact that it did not deposit its instrument of ratification of the Protocol of signature of the Statute of the permanent Court of international Justice, is not a party to this treaty’.90 The Court confirmed its previous case law in relation to the problem of the relation between ‘intention’ and ‘act’, asserting that: Just as the deed without the intent is not enough, so equally the will without the deed does not suffice to constitute a valid legal transaction.91 Deposit constitutes a substantial formality likely to confirm the reality of the consent of the State to be bound by the treaty. Except in the case of a contrary provision, the conduct, even if it is not ambiguous and even when the intention to be bound is materialized by communicating a notification announcing ratification and subsequent deposit of the instruments of ratification, cannot replace the formal act. Only material deposit, such as envisaged by the treaty, can constitute proof that ratification took place. It is only at this moment when consent is definitely established.92 One could criticize the ‘formal or even rigoristic conception’93 of the Court, which contrasts with its ‘more activist vision of the mode of engagement of States in relation to the legal regime of declaration of acceptance of both Courts of The Hague’.94 This concept, however, has the advantage to being in conformity with the requirements of security that the traditional rules of the law of treaties, as codified by the Vienna Convention in its Article 16, paragraph (c), confirm.

References

(p. 350) Moment of the establishment of consent and implementation of reservations 27. The question here is to determine the moment of establishing consent to be bound by a multilateral treaty when a State which deposited the instruments of ratification or accession formulates a reservation. Is it at the moment when the instrument was deposited with the depositary, as envisaged in Article 16(b), or is it at the date where ‘at least one other contracting State has accepted the reservation’, as seems to be alluded to in Article 20, paragraphs 4(c) and 5 of the Vienna Convention? The answer to this question takes the form of an alternative: • the deposit of the instrument has been performed with reservation. In that case, it is the regime of Article 20 which applies: ‘an act expressing a State's consent to be bound by the treaty and containing a reservation is effective as soon as at least one other

contracting State has accepted the reservation’ either explicitly or by not raising objection as prescribed by paragraph 5 of Article 20; 95 • the deposit of the instrument has been performed unconditionally. In that case, it is the common regime of Article 16(b) which is applicable. 28. In both cases, however, the Convention took the precaution of noting that the treaty can provides otherwise. This was the conclusion reached by the Inter-American Court of Human Rights in interpreting the American Convention on Human Rights and deciding that this latter ‘enters into force for a State which ratifies it or that access to it with or without reservation in the date of the deposit of its instrument of ratification or accession’.96 In spite of the reference in this Convention relating to the Vienna Convention on the Law of Treaties with regard to the question of reservations,97 the Court, emphasizing the fact that the American Convention deals with human rights, decided to apply its Article 74.98 For the Court, ‘it would be apparently senseless to maintain that the reference to the Vienna Convention intended to depend the entry into force of a ratification with reservation of its approval by another State’.99

References 29. Finally, the applicability of the rule contained in Article 16 does not make it obvious whether a reservation was formulated. Uncertainty results in reality from the (p. 351) complex implementation of the system of reservations and from the will to extend at the maximum the scope of international treaties between reservatory States and other States parties. In these cases, and depending on whether reservation was or was not accepted by other States, it is the regime of Article 20 that is applicable besides, of course, that of Article 16. In any event, the rule expressed in the latter provision does not have an imperative character, and States can choose other modalities than those envisaged in this provision.

D. Notification of instruments 30. Article 16 envisages in its paragraph (c) that the instruments of ratification, acceptance, approval, or accession also establish the consent of a State ‘at the moment of their notification to the contracting States or to the depositary, if so agreed’.100 This hypothesis is distinct from those of exchange or deposit envisaged in the first two paragraphs of the provision, and one wonders why it does not appear in the title of the Article, as pointed out by several delegations to the Vienna Conference,101 as well as by the Special Rapporteur himself during the debate on draft Article 16 of the Convention of 1986.102 As pointed out by the ILC, that procedure, apparently less frequent, is equivalent in one case to a ‘simplified form of exchange of instrument’ and in the other to ‘a simplified form of deposit of instrument’ owing to delays relating to the exchange or material deposit of instrument of ratification emanating from heads of States.103 Two hypotheses must therefore be differentiated, depending on whether the notification of instruments was made to the contracting States or to the depositary. 31. In the first case, the consent of the State making notification will be established regarding another contracting State at the moment when the latter receives the aforementioned notification.104 As a result, this is one of the hypotheses envisaged in Article 78(b) which also finds application here.105 According to this provision: Except as the treaty or the present Convention otherwise provide, any notification or communication to be made by any State under the present Convention shall: (b) be considered as having been made by the State in question only upon its receipt by the State to which it was transmitted… (p. 352) It is the practice followed by some bilateral treaties that the provision in question regulates, at the same time, the entry into force of the treaty.106 32. The second case, less frequent, seems to concern multilateral treaties. When the notification of instruments relating to the latter is performed with a depositary, it is the regime of Article 16 that is applied exclusively. In other words, as explained by the ILC, ‘consent will be established upon receipt of the notification by the depositary’.107 Sometimes, two of the envisaged procedures (eg notification following instructions to a diplomatic agent and exchange or subsequent material deposit of the instruments of ratification) are used at the same time in practice.108 Notifications are comparable to instruments, either because they create or implement new obligations, or because they change the scope of existing obligations. In all cases, unless the treaty otherwise provides consent is established at the moment of receipt of notification either by the contracting State or by the depositary.109

References 33. The main problem of interpretation raised by this Article, beyond questions of wording, is that relating to the scope of the last words—‘if so agreed’—given that the (p. 353) beginning of the first sentence of Article 16 already contains a reservation—‘[u]nless the treaty otherwise provides’—which seems normally sufficient to cover the hypothesis of notification. The question was raised by the representative of Belgium at the Vienna Conference: ‘[d]o words “if so agreed” relate to notification, or at the moment when the consent of the State must be considered as established, or to both?’110 It seems that the expression ‘if so agreed’ relates more to the choice of procedure and not to the moment when consent is established. The auxiliary reservation inserted at the beginning of the Article, as well as the object of the provision, highlighted by the words preceding the three hypotheses (‘at the moment of’) already points out that what is intended is the moment of the establishment of consent, whatever the chosen procedure.111 The apparent redundancy of paragraph (c) as well as the

absence of expression in the title of the Article, can be explained by the fact that it refers to a hypothesis relating to a particular method, very distinct from the first two (exchange and deposit) which correspond to the normal practice of the establishment of consent.112

E. Choice of other solutions 34. Numerous treaties specifically provide that they produce legal effects only after the expiry of a certain period. In these cases, exchange, deposit, and notification will certainly mark the exact moment at which it may be maintained that the establishment of consent to be bound is clearly established. Nevertheless, this consent can produce concrete legal effects, immediately by the communication of instruments to the other State or to other States or to the depositary, or later when the treaty otherwise provides. Given the wide diversity of solutions, it is difficult to identify general rules in this respect. It will depend on the object and purpose of the treaty, its geographical scope, the will of the contracting States, and other considerations. 35. Concerning bilateral treaties, established consent will generally produce its effects some weeks after the exchange or notification of the instruments of ratification. Even when the object of certain treaties is identical (reciprocal agreements of encouragement and protection of investments, for instance), procedures can differ (exchange or notification) and the time limits can be variable.113 Some older treaties even envisage a rather (p. 354) unusual regime by virtue of which the treaty binds the State from its signature although the procedure of the exchange of ratifications is also envisaged.114

References 36. As regards multilateral treaties, established consent will not produce concrete legal effects at the moment of deposit or notification of instruments but at some future date provided by the treaty. This date generally corresponds to that prescribed for the entry into force of the treaty. It is intended to grant all participants in the treaty the right to the same period between the transmission of the instrument and the date on which it takes effect. This is also the case of The Hague Convention of 18 October 1907115 or the General Act of arbitration of 28 September 1928.116 The ILC gave the example of the Conventions on diplomatic and consular relations of 1961 and 1963.117 Other recent, and not so recent, conventions can be included in the same category. It is notably the case of conventions adopted by the UN General Assembly such as the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948118 or conventions relating to human rights.119 It is also the case of constituent agreements of interna(p. 355) tional public establishments120 or of various other treaties.121 In spite of the variety of solutions, one would think that within the envisaged time limit—which relates, however, to the question of the entry into force of the treaty—the depositary could inform other States parties of the deposit of ratifications or of subsequent accessions materializing the date of the establishment of consent to be bound.122

References 37. The date at which consent to be bound is established may not be that of the deposit of the instrument with the depositary, but may be dependent on the decision of another authority. Therefore, in the practice of accession to some constituent conventions of international organizations, a State will have member status of the organization only at the date set by the competent organ of the organization or by the authority mentioned in the treaty and not at the time of the deposit of its instrument with the depositary, even if the second date precedes the first. This is the case with the Act establishing the African Development Bank (Art. 64(2)) or the Convention for the Protection of the Producers of Phonograms Against Unauthorized Duplication of their Phonograms of 29 October 1971 (Art. 11(2)).123 Also, by virtue of the Statutes of the European Organization for the Exploitation of Meteorological Satellites of 24 May 1983: from the date of entry into force of the present Convention, any State…can access to Convention following a decision of Council [of the Organization]…a state wishing to access to this Convention, shall notify its request to the director who informs Member States about it at least three months before it is submitted to Council for membership. Council fixes modalities and conditions of accession of aforementioned State…124 In the practice of the Secretary-General of the United Nations, it is only after receipt of confirmation by the authority mentioned in the treaty in this respect that the depositary officially accepts the instrument deposited.125 (p. 356) 38. Finally, Article 16 provides that ‘unless the treaty otherwise provides’, without mentioning other documents than the treaty itself.126 As a result, when the treaty is silent on this question, the question arises as to the moment of establishing consent and if, for example, a State points out, at the moment of deposit or notification of its instrument, that the latter will take effect at a date other than that of the deposit of the instrument, the consent will be established at the moment of this deposit, in accordance with Article 16 of the Vienna Convention. Unless other contracting States agree on another date, it is at the moment of the expiry of this time limit that consent is established. 39. In total, almost all recent and less recent international conventions, even if they do not use the expression ‘the establishment of consent’ and do not distinguish expressly between the establishment of consent and the entry into force of the treaty,127 contain provisions relating

to the transmission of instruments either to the contracting States or to the depositary. This transmission, which marks the moment of the establishment of consent, can become confused with the concrete beginning of effect of the treaty regarding States signatories, when no time limit is envisaged. However, most modern international conventions envisage the expiry of a certain period or the realization of numerous varied conditions, to make exchange, deposit, or notification of connected instruments to the treaty actually produce their effect with regard to State parties. It is this variation which undoubtedly explains the rule embodied in Article 16. The problem that arises, precisely owing to this variation, is that related to the real interest of this provision, except perhaps to confirm a well-established rule of procedural nature which the treaty did not otherwise provide. *

FERHAT HORCHANI

 YOUSSRI BEN HAMMADI **

Footnotes: 1 See A/6309/Rev.1, second part, ch. II, commentary on Art. 13, YILC, 1966, vol. II, p 201. 2 Nevertheless, certain treaties, because they envisage immediate execution at the moment of signature, can give rise to some problems for the determination of the moment of establishment of consent to be bound. See infra, paras 10 ff. Also, for the same treaty, the consent to be bound can be established on the date of the signature for certain States or, depending on circumstances, at the moment of deposit of the instrument of ratification, acceptance, approval, or accession for other States. See the example of Arts 15(2) and 16(4) of the constituent Agreement of the European Organization for the Exploitation of Meteorological Satellites of 24 May 1983, text in H. T. Adam, Les organismes internationaux spécialisés, Contribution à la théorie générale des Etablissements publics internationaux (Paris: LGDJ), pp 380–1. 3 See infra, paras 9 and 13. Notably while referring to this aspect during the Vienna Conference, the representative of Poland pointed out the non-concordance between the title of Art. 16, which concerns the conclusion of treaties, and its contents, which concern, in his view, their entry into force. See Official Records, Summary Records, 1st session, 26 March–24 May 1968, 18th session, 9 April 1968, p 96, para. 37. Also, concerning Arts 16 and 24, Paul Reuter spoke invariably about ‘entry into force’, see P. Reuter, Introduction au droit des traités (Paris: PUF, 1972), p 65. 4 See infra, paras 34 ff of this commentary, as well as the commentary on Art. 24 in the present work. 5 Emphasis added. 6 See para 34. The treaty can even produce no effect if the requested number of ratifications or accession is never attained. See commentary on Art. 24 in the present work. 7 See infra, paras 17, 27, and following commentary. 8 It is in these terms that the question was raised by ILC from 1966. See Reports to the General Assembly, YILC, 1966, vol. II, p 219. 9 The Article was adopted by 99 votes against 0, with 1 abstention. See Official Records, Summary Records, 2nd session, 9 April–22 May 1969, 10th plenary session, p 28, para. 20. 10 The Conference finally adopted the last draft Article (Art. 13) introduced by the ILC and examined by Conference during its 10th plenary session: see Documents of Conference, IN/CONF.39/14, p 40, paras 149 and 155. 11 See YILC, 1965, vol. II, p 161; YILC, 1966, vol. II, p 116, and Report to the General Assembly, YILC, 966, vol. II, p 201. 12 The final text adopted in this respect was the draft of 1966, see YILC, 1966, vol. II, p 116. This question concerns other provisions and particularly Art. 2, para. 1(b); see Official Records, CRA, 9 April–22 May 1969, p 23, para. 57. 13 Emphasis added. 14 See ACDI, 1965, vol. II, op. cit. 15 See examples of treaties concluded in the middle of the 19th century, in J. Basdevant, ‘La conclusion et la rédaction des traités et des instruments diplomatiques autres que les traités’, RCADI, 1926-V, vol. 15, pp 583–4 and 630; in the same sense, see Cl.-A. Colliard, Droit international et histoire diplomatique. Documents choisis, vol. I (3rd edn, Paris: Montchrestien, 1955). 16 Ch. Rousseau, Droit international public, vol. I (Paris: Sirey, 1970), p 89; see in the same sense J. Basdevant, supra n 15, pp 583 and 630–1, as well as bibliography cited notably in fn 2, p 584; Nguyen Quoc Dinh, A. Pellet, and P. Daillier, Droit international public (7th edn, Paris: LGDJ, 2002), pp 140–2, no 79–80. 17 ICJ Reports 1960, p 208; see infra, paras 10 ff. 18 Among the first treaties, Jules Basdevant cited Art. 20 of the Act for the federal Constitution of Germany of 8 June 1815, the treaty of 4 April 1863 between various German States on the Elbe, the general Act of the Conference of Berlin of 1885, Arts 92 and 95 of Convention I of The Hague of 18 October 1907 on the peaceful settlement of international conflicts, treaties concluded at the beginning of the 20th century and prescribing deposit with the Secretary General of the League of Nations or the Secretary General of the Fluvial International Commission. See J. Basdevant, supra n 15, pp 585–6. 19 See Art. 92 of The Hague Convention for the peaceful settlement of international conflicts of 18 October 1907; Art. 10(2) of the Geneva Convention of 20 October 1921 on the

neutralization of the Aland islands; Art. 9 of the Agreement of friendship and cooperation between Yugoslavia, Greece and Turkey of 28 February 1953. For other examples see: Cl.-A. Colliard and A. Manin, Droit international et histoire diplomatique. Documents choisis, vol. II (Paris: Montchrestien, 1970). Also, an example cited by the ILC, that of s 41 of the Convention on privileges and immunity of the specialized institutions approved by the General Assembly (Res. 179 (II) of 21 November 1947 which stipulates that ‘the accession to Convention…will be made by deposit with the Secretary general of the UN of an instrument of accession which will take effect in the date of its deposit’, A/CN.4/154 of 14 February 1963, YILC, 1963, vol. II, p 15, para. 70. The same for the procedure of notification relating to the scope of application of the Convention to the specialized institutions. The said notification—stipulated in s 43—will take effect on the date of its receipt by the Secretary General. In the same sense, the constituent Charter of the Organization of American States (OAS) of 30 April 1948 which establishes in its Art. 109 that ‘the present Charter shall enter into force for the ratifying States when two-thirds of the signatory States have deposited their ratification. As regards other States, the Charter will enter into force respectively when the deposit of their ratification will be accomplished’ (UNTS, vol. 119, p 90). See also Art. 9, para. 3 of the Treaty of Manila of 8 September 1954 relating to the collective defence of South-East Asia (UNTS, vol. 209, p 32); Art. 14 of the Convention of the Organisation for Economic Co-Operation and Development (OECD) of 14 December 1960 (UNTS, vol. 429, p 93). 20 Jules Basdevant qualifies the procès-verbal of deposit, as well as that of exchange of ratifications, ‘de facto very important because, in principle and subject to the stipulations of treaties…it is from this moment that the treaty is obligatory for States’, supra n 15, pp 630–1; in the same sense, see H. Thierry, Cours de droit international public, fasc. I, les cours de droit, 1970, pp 56–7. 21 Report to the General Assembly, YILC, 1966, vol. II, p 201. 22 Portugal v India, Judgment of 26 November 1957, ICJ Reports 1957, Preliminary Objections. See infra, paras 16 ff. 23 Jules Basdevant mentioned in his course of 1926 at the Academy of International Law several examples of treaties which envisage this procedure: Peace Treaty of Portsmouth of 23 September–5 August 1905 concluded between Japan and Russia, Peace Treaty of Versailles of 28 June 1919, of Saint German of 10 September 1919, supra n 15, pp 583–4. This procedure is also envisaged by Arts 92 and 95 of Convention I of The Hague of 18 October 1907. 24 See infra, paras 30, 32, and 33. 25 The exchange of instruments intended by Art. 16 should not be confused with the exchange of notes, protocols, acts, statements, memorandums of agreement, modus vivendi, etc., which concern the conclusion of the treaty and its entry into force from the signature. See G. Fitzmaurice, Special Rapporteur, IT/IN of 14 March 1956, YILC, 1956, vol. II, p 122, para. 55. 26 See Report to the General Assembly, YILC, 1966, vol. II, p 201. 27 See A. Aust, Modern Treaty Law and Practice (2nd edn, Cambridge: Cambridge University Press, 2007), pp 105–6. 28 Ibid. 29 In the past, certain important collective treaties were, however, concluded under bilateral form (Convention of Constantinople of 29 October 1888 relating to the status of the Suez canal, final Act of the Congress of Vienna of 9 June 1815). See J. Dehaussy, ‘Le dépositaire de traités’, RGDIP, 1952, p 497; J. Basdevant, supra n 15, p 584, bibliography n 2, and p 593. 30 It is this procedure that was notably fulfilled by the final Act of the Congress of Vienna. 31 In certain collective treaties, ratifications were exchanged between the first signatory State (considered as having a distinct and particular interest) and all other signatory States; but these latter did not exchange ratifications between them. See J. Basdevant, supra n 15, pp 584–5. 32 Ibid, p 592. Subject to the procedure of deposit, certain modern multilateral treaties adopt a solution, to a certain extent, imprinted by bilateralism. This is the case in Art. 15, para. 2 of the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions adopted on 17 December 1997, which allows its entry into force on successive dates: If, after 31 December 1998, the Convention has not entered into force under paragraph 1 above, any signatory which has deposited its instrument of acceptance, approval or ratification may declare in writing to the Depositary its readiness to accept entry into force of this Convention under this paragraph 2. The Convention shall enter into force for such signatory on the sixtieth day following the date upon which such declarations have been deposited by at least two signatories. For each signatory depositing its declaration after such entry into force, the Convention shall enter into force the sixtieth day following the date of the deposit. See the text of this Convention in AFDI, 1997, p 626. Available at: http://www.oecd.org/dataoecd/52/53/2406809.pdf. 33 Article 20 of the treaty concerning the construction and operation of the Fixed Link (transmanche) by private company (Eurotunnel). See the text in H. T. Adam, supra n 2, p 658. 34 Judgment of 18 November 1960, ICJ Reports 1960, p 192. 35 Ibid, p 208. 36 Ibid, pp 208–9.

37 The expression is used repeatedly by the Court, see ibid, pp 208–9. 38 This is the case notably of Art. 20, para. 4(b) which allows the entry into force of the treaty as between the objecting and reserving States ‘unless a contrary intention is definitely expressed by the objecting State’; of Arts 28 and 29 which respectively lay down the principle of non-retroactivity of treaties and their application in respect of the entire territory ‘unless a different intention appears from the treaty or is otherwise established’; of Art. 56, para. 1(a) which prohibits the possibility of denouncing a treaty which does not contain clause in this respect ‘unless…(a) it is established that the parties intended to admit the possibility of denunciation or withdrawal’. See in the same sense, and sometimes with different formulations, Arts 12(1)(c), 14(1)(d), and 31(4). 39 This is the case of Art. 20, para. 4(b) aforementioned: unless the treaty otherwise provides…b) an objection by another contracting State to a reservation does not preclude the entry into force of the treaty as between the objecting and reserving States unless a contrary intention is definitely expressed by the objecting State. Also of Art. 59, paras 1(a) and 2 relating to termination or suspension of a treaty due to the conclusion of a later treaty if ‘it appears from the later treaty or is otherwise established that the parties intended that the matter should be governed by that treaty’; see in the same sense Art. 44, para. 1 and especially para. 3(b); and with other formulations, Art. 70, para. 1 and Art. 72, para. 1. 40 Articles 20(3) and (5), 22(1), 24(3), 39, 40(1), 41(2), 55, and 58(2). 41 See supra, para. 6. 42 Jules Basdevant wrote that it is a very useful procedure for the treaties the object of which is to establish rules of law and rejects on this basis the thesis of treaty law raising collective intention since, in his view ‘in every new ratification, a new collective intention takes the place of another collective intention’: supra n 15, p 586. 43 UNTS, vol. 1508, p 99. 44 This is the case of Art. XXI of the Convention establishing the European Space Agency of 30 May 1975 (UNTS, vol. 1297): 1. The present Convention enters into force when the following States…sign it and deposit their instruments of ratification or acceptance…Regarding any State which ratifies Convention, accepts it or access to it after its entry into force, the Convention takes effect in the date of deposit by this State of its instrument of ratification, acceptance or accession. Also see Art. 33, para. 3 of the Convention on the International Maritime Satellite Organization of 3 September 1976 (UNTS, vol. 1143): ‘ratification…takes effect at the date of the deposit of the instrument’; Art. 23 of the INTERSPUTNIK agreement of 15 November 1971 (UNTS, vol. 862): ‘(Agreement) will enter into force on the day of deposit of above mentioned instruments’, ibid, p 426; in the same sense, cf Art. XXII, para. c of the Agreement of EUTELSAT of 15 July 1982 (UNTS, vol. 1519, p 444); Art. XXI of EURODIF Convention of 20 March 1980 (UNTS, vol. 1310, p 1013); Art. 46 of the Convention of the inter-Arab Company of guarantee of the investment of 20 August 1970; Art. 16 of the Agreement of the Arab Organisation of industrialization of 29 April 1975; Art. 61 of the Agreement of the European Bank for Reconstruction and Development of 29 May 1990 (available at: http://www.ebrd.com/end/BASIC/index.htm); Art. 67 of the Agreement of the Islamic Bank of Development of 30 October 1974. This is also the case of agreements on base materials: Art. 49 of the Agreement establishing the International Tin Council of 21 June 1975 (UNTS, vol. 1014, p 72); Art. 67 of the Agreement of the International Organization of Cacao of 20 October 1975 (UNTS, vol. 882, pp 927 and 966). 45 Article 74 of the American Convention on the Human Rights of 22 November 1969 (UNTS, vol. 1149); Art. 66 of the European Convention on Human Rights of 4 November 1950 (UNTS, vol. 213, p 254). 46 Article 9 of the treaty on the non-proliferation of nuclear weapon of 1 July 1968 (UNTS, vol. 729); Art. 14, paras 3 and 4 of 27 January 1967 (UNTS, vol. 610); Art. 24, paras 3 and 4 of the Convention on international liability for damage caused by space objects of 29 March 1972 (UNTS, vol. 961); Art. 11 of the Treaty of the North Atlantic of 4 April 1949 which envisages that the Treaty ‘shall come into effect with respect to other States on the date of the deposit of their ratifications’ (UNTS, vol. 34, p 250). 47 As an example, the first of the protocols of reform of the Charter of the OAS adopted in Buenos Aires in 1967 (available at: http://www.oas.org) prescribes in its Art. XXVI that: the present Protocol will come into force between the States which ratified it when the two thirds of States signatories of Charter [of the OAS] will have deposited their instruments of ratification. As regards other States, it will come into force in the order of the deposit of their instruments of ratification. Also the second Protocol of reform adopted in 1985 to Cartagena Indias declares in its Art. IX that: the present Protocol will come into force when the two thirds of the actual Member States of the Organization will have deposited their instruments of ratification. As soon as this condition will have been fulfilled, the Protocol will also come into force regarding the States which, without being members of the Organization nowadays,

will have become it after the deposit of their instruments of their ratification. For other States, the present protocol will come into force at the date of deposit of their respective instruments of ratification. See J.-M. Arrighi, ‘Les réformes à la Charte de l'Organisation des Etats américains: problèmes de droit des traités’, AFDI, 1997, pp 95–7. 48 A question was raised in these terms by the ILC, see Reports to the General Assembly, YILC, 1966, vol. II, p 201. 49 Report to the General Assembly, YILC, 1966, vol. II, p 201. 50 Ibid. 51 Ibid. Some conventions envisage the obligation for the depositary to communicate to other contracting parties a copy of the instruments of ratification, approval, or accession but give no legal effect to this communication. See Art. 21 of the OECD Convention of 14 December 1960 (UNTS, vol. 429, p 93). 52 Portugal v India, Judgment of 26 November 1957, ICJ Reports 1957, Preliminary Objections. 53 The case is cited in the Report of the ILC to the General Assembly, YILC, 1966, vol. II, p 201. The Commission nevertheless did not omit to point out, without further clarification, that although in certain circumstances the application of the rule can give rise to some difficult problems, the existent rule seems to be well established. 54 See Malgosia Fitzmaurice, ‘The optional clause system and the law of treaties: Issues of interpretation in recent jurisprudence of the International Court of Justice’, Austr YBIL, 1999, vol. 20, pp 127–59. 55 See case concerning the Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Jurisdiction and Admissibility, Judgment, ICJ Reports 1984, p 420, para. 63. 56 ICJ Reports 1957, pp 143 and 146. 57 Ibid, p 146. 58 Emphasis added. See infra, paras 34 ff. 59 Supra n 21, pp 146–7. Article 36, para. 4 of the Statute enunciates that ‘Such declarations shall be deposited with the Secretary-General of the United Nations, who shall transmit copies thereof to the parties to the Statute and to the Registrar of the Court’. For an opposite reading of Art. 36 prescribing besides deposit a second condition relating to communication by the Secretary-General of a copy of the declaration to the parties to the Statute, see the dissenting opinions of the vice-president Mr Badawi, ICJ Reports 1957, pp 155, 156, and esp. 157 and of Judge Chagala, ibid, pp 166, 169, and esp. 170 and 172, where he thinks that ‘the same importance should be attached to both the parts of article 36 para. 4’ and that ‘the haste with which Portugal filed this Application has resulted in an abuse of the Optional Clause and also an abuse of the processes of the Court’. 60 Judgment of 26 May 1961, ICJ Reports 1961, p 31. The problem of the deposit of declaration of acceptance of the compulsory jurisdiction of the ICJ was also put down on the occasion of the case concerning the Border and Transborder Armed Actions (Nicaragua v Honduras). On this aspect, see E. Decaux, ‘L'arrêt de la C.I.J. dans l'affaire des actions armées frontalières et transfrontalières (Nicaragua c/Honduras), Compétence et recevabilité, 20 décembre 1988’, AFDI, 1988, p 155. 61 Nigeria argued that the ‘case concerning the Right of Passage over Indian Territory was a first impression, that the Judgment given is outdated, and that it is an isolated one; that international law, especially as it relates to good faith, has evolved since’. See case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria), Judgment of 11 June 1998, Preliminary Objections, ICJ Reports 1998, p 290, para. 24. 62 Ibid, p 292, para. 27. See nevertheless dissenting opinions of Judges Abdul G. Kororna (ICJ Reports 1998, pp 377–91), Christopher G. Weeramantry (pp 362–76), and particularly Ajibola Bola (pp 392 ff) who took back the same arguments as their peers during the case concerning the Right of passage. 63 ICJ Reports 1998, p 294, para. 31. 64 Ibid, p 294, para. 31. 65 That is to say, all information relating to acts, notifications, and communications relating to the treaty and which are conferred upon the depositary in accordance with Art. 77 of the Convention. See also the commentary on this Article in the present work. 66 Report to the General Assembly, YILC, 1966, vol. II, p 271. 67 Ibid, p 272. 68 Ibid. 69 Cameroon v Nigeria, ICJ Reports 1998, p 293, para. 31. For the opposite thesis prescribing the interpretation of Art. 16 in the light of Art. 78, para. (c), see dissenting opinions of Judges Weeramantry (p 375) and Koroma (pp 382–4 and 387). 70 According to Anthony Aust: Although the depositary has a duty to notify to States the deposit of an instrument of ratification, that is only for the purpose of information; the notification is not a substantive part of the transaction by which the depositing State establishes treaty relations with the other States. The act of deposit will have the legal effect provided

for under the treaty even if the notification of it by the depositary is delayed or even overlooked. Similarly, late notification by the depositary of the date of entry into force will not affect that date (supra n 26, p 334). 71 J. Dehaussy, supra n 29, p 498. 72 For this hypothesis, see infra, paras 27 ff. See also the commentary on these Articles in the present work. 73 It is not necessary that States exchange or deposit the same type of instrument. It can be a ratification for one State and an acceptance or an approval for another. In the practice of certain States, it seems that there are cases where the signature of a single party was considered as immediately binding, while the signature of another was subject to ratification, acceptance, or approval. See Observations of Denmark regarding Art. 12 (ratification) of the draft, in Waldock Report, A/CN.4/177/and Add.1 and 2, YILC, 1965, vol. II, p 37. See example cited supra n 2, of the Convention establishing the European Organization for the exploitation of meteorological satellites. 74 Two examples are provided by the practice of the UN Secretary-General. According to Art. XI(43) of the Convention on privileges and immunity of UN Specialized Agencies of 21 September 1947: Each State party to this Convention shall indicate in its instrument of accession the specialized agency or agencies in respect of which it undertakes to apply the provisions of this Convention.…(UNTS, vol. 33, p 286) When the Secretary-General receives an instrument which does not identify the said specialized institutions, he states that the instrument will stay in waiting until the aforementioned institutions are indicated. The second example is in relation to Art. 4, para. 3 of the Convention on prohibitions or restrictions on the use of certain conventional weapons which may be deemed to be excessively injurious or to have indiscriminate effects concluded with its Protocols on 10 October 1980 (UNTS, vol. 1342, p 165). by virtue of which: Expressions of consent to be bound by any of the Protocols annexed to this Convention shall be optional for each State, provided that at the time of the deposit of its instrument of ratification, acceptance or approval of this Convention or of accession thereto, that State shall notify the Depositary of its consent to be bound by any two or more of these Protocols. Also, the Secretary-General keeps instruments in waiting until the said protocols are identified. See Précis de la pratique du Secrétaire general prepared by the treaties section of the Office of Legal Affairs, January 1999, ST/LEG/7/REV.1, paras 129 and 131. 75 Article 32, para. 4: ‘No State becomes party to the present Convention before having signed the Agreement of exploitation…’ (UNTS, vol. 1143, p 105); in the same sense, Art. XXIII(c) of the Convention establishing the European Telecommunications Satellite Organization (UNTS, vol. 1519, p 176); Art. 39 of the Convention on the establishment of the International Oil Pollution Compensation Funds of 18 December 1971: any State, owes during the deposit of an instrument…to communicate to the Secretary General of the Organization the name and the address of the persons, which for this State would be required to contribute to the fund…as well as the quantities of hydrocarbons giving rise to contribution. (UNTS, vol. 1110, p 57) 76 See Précis de la pratique du Secrétaire general, supra n 74, para. 131. 77 According to this practice, the treaty is kept in the Secretariat and will be accepted in deposit only at the date provided by the treaty. Until then, the name of the said State is omitted from the list of States parties to the agreement. See Précis de la pratique du Secrétaire general, supra n 74, paras 136–8. 78 Ibid, para. 140. 79 YILC, 1965, vol. II, observations of Sir Humphrey Waldock, p 43. 80 See infra, para. 26, case concerning the Military and paramilitary activities in and against Nicaragua. 81 eg in relation to the authenticity of the introduced instruments, to the time limit relating to the entry into force of the treaty or to reservations (if the treaty prohibits any reservation or if prohibition concerns only certain provisions), or those relating to the suspensive conditions envisaged by the treaty, etc. See Précis de la pratique du Secrétaire general, supra n 74, paras 142, 145–146, and 191 ff. 82 The solution is upheld by Art. 77, para. 1(e) and (f) of the Convention; see in this respect observations of the United States and those of Special Repporteur Mr Humphrey Waldock, YILC, 1965, vol II, pp 42–3. 83 See examples of Art. 92 of Convention I of The Hague of 18 October 1907; Geneva Conventions of 12 August 1949. For other older examples, see J. Basdevant, supra n 15, pp 585–6. 84 See model of announcement published in the Journal of United Nations, Annexe XVII in Précis de la pratique du Secrétaire general, supra n 74, p 142. In the case concerning the Land and maritime boundary, the ICJ pointed out the publication in the Journal of the United Nations of the declaration of the applicant party, made in accordance with Art. 36, para. 2 of the Statute of the Court, ICJ Reports 1998, p 297, para. 40. Nevertheless, by introducing this element, the Court did not pronounce on the value of this journal, which is a publication

available in the Headquarters in New York aimed at the organs of the United Nations and permanent missions. 85 See model of depositary notification concerning the deposit of an instrument of ratification specifying the date of entry into force of the treaty for interested States; Annexe XVIII in Précis de la pratique du Secrétaire général, supra n 74, p 143. 86 See Précis de la pratique du Secrétaire général, supra n 74, paras 157–9; in the same sense, cf A. Aust, supra n 27, p 119. Nevertheless, according to the practice of the SecretaryGeneral of the United Nations, the withdrawal does not have effect in delaying the entry into force, since conditions relating to the latter are fulfilled in accordance with the relevant provision of the treaty, ibid. 87 See infra, para. 37. 88 Judgment of 26 November 1984 (Nicaragua v United-States of America), Jurisdiction of the Court and admissibility of application, ICJ Reports 1984, pp 403 ff, paras 24 ff on these aspects; see C. Lang, L'affaire Nicaragua/Etats-Unis devant la Cour internationale de Justice (Paris: LGDJ, 1990), pp 33 ff, esp. pp 43–6. 89 Nicaragua deposited its declaration of acceptance (which was not ratified) to the Secretary- General of the League of Nations on 24 September 1929. On 14 September 1929 it had signed the Protocol of signature of the Statute of the PCIJ without, however, undertaking the process of ratification of the Protocol. Also, within the period 1929–39 Nicaragua expressed repeatedly its intenton to ratifiy and to communicate the instrument of ratification of the Protocol of the Statute, which for various reasons it never did. Finally, Nicaragua became in 1946 party to the Statute of the ICJ, which deprived its declaration of acceptance from producing effects. See C. Lang, supra n 88, pp 36, 44, and 56. 90 Judgment of 26 November 1984 (Nicaragua v United States of America) Jurisdiction of the Court and admissibility of application, ICJ Reports 1984, p 404, para. 26. 91 Case concerning the Temple of Preah Vihear (Cambodia v Thailand), Preliminary Objections, ICJ Reports 1961, p 31; Judgment of 27 June 1986, Military and paramilitary activities in and against Nicaragua, Merits, ICJ Reports 1986, p 162. 92 See C. Lang, supra n 88, pp 44–5. 93 Ibid, p 46. 94 Ibid. To assert its competence, the Court based its judgment on the wording of the declaration of acceptance of Nicaragua of 1929, on its conduct, as well as on considerations of continuity of jurisdiction between both Courts. 95 This system paradoxically creates a different situation regarding the State which formulates an objection to reservation but accepts that the treaty enters into force with the reserving State. In that case, the consent of the latter seems established from the date of the deposit of its instrument of ratification or accession. See also the commentary on Art. 20 in the present work. 96 It was an answer to an Advisory Opinion of 28 June 1983 which had arisen from the American Commission on Human Rights and was formulated as follows: From which moment a State is deemed to have become party to the American Convention if it ratifies this latter or access to it by inserting one or several reservations: from the date of deposit of its instrument of ratification or accession or at the expiry of period pointed out in the article 20 of the Vienna convention on the law of treaties? (See Inter-American Court of Human Rights.) The effect of reservations on the entry into force of the American Convention (Arts 74 and 75), Advisory Opinion OC.2/82 of 24 September 1982, Series A, no. 2, see ILM, 1981, vol. 20, p 1424. In the same vein see Ph. Frumer, ‘Entre tradition et créativité juridiques: la jurisprudence de la Cour interaméricaine des droits de l'homme’, RBDI, 1995–2, pp 520–1. 97 According to Art. 75, ‘This Convention shall be subject to reservations only in conformity with the provisions of the Vienna Convention on the Law of Treaties signed on May 23, 1969’. 98 Paragraph 2 of this Article reads as follows: ‘With respect to any state that ratifies or adheres thereafter, the Convention shall enter into force on the date of the deposit of its instrument of ratification or adherence’. 99 See ILM, 1981, vol. 20, p 1424. 100 Notification should not be confused, here, with the one which tends not to establish consent of the State but to express it in various forms (see the commentary on Art. 11 in the present work). 101 See, notably, the position of Greece, in Official Records, Summary Records, 2nd session, p 28, para. 16. 102 According to Paul Reuter, the mention of notification was omitted in the Convention of 1969 for reasons which remain, in his view, ‘unexplained’. See Fourth Report on the question of treaties concluded between States and international organizations or between two or more international organizations of 21 March 1975, A/CN.4/285, YILC, 1975, vol. II, p 35; in the same sense, YILC, 1975, vol. I, 1347th meeting, 9 July 1975, p 228, para. 8. 103 See Report to the General Assembly, YILC, 1966, vol. II, p 201. In draft Art. 16 (former Art. 15), notification did not appear and should not, according to certain members of the ILC (see Observations of Mr Ruda), take the place of deposit of the instrument as a mode of establishing consent to be bound. See YILC, 1965, vol. I, 787th meeting, 20 May 1965, p 89, para. 3. In an opposite sense, it seems that, in practice, less and less resort is made to the

formal instruments; the Scandinavian States, eg, do not deposit formal instruments but confine themselves to introducing a note verbale to other parties. See YILC, 1965, vol. I, p 91, para. 47. See J. Basdevant, supra n 15, p 583, fn 5. 104 See Report of the ILC to the General Assembly, YILC, 1966, vol. II, p 201. 105 Ibid. 106 Several examples of bilateral treaties of reciprocal encouragement and protection of investments can be cited. Two of them can be retained; those having a vague formulation. This is the case with Art. 10 of the agreement between Korea and Tunisia of 23 May 1975: The present Agreement will enter into force when both Contracting parties will have notified the accomplishment of constitutional formalities requested for conclusion and entry into force of the international treaties. See in the same sense Art. 11 of the Swiss model of bilateral agreement relating to promotion and protection of investments; Art XIII of the agreement between Canada and Poland of 6 April 1990. The second category of examples is more clear as for the moment: Each of the contracting parties notifies by writting to the other Contracting parties that it had fulfilled requested constitutional formalities in his territory for the coming into force of the present Agreement. The present Agreement takes effect at the date of the later notifications. (Art. XV, para. 1 of the agreement between Canada and Argentina of 5 November 1991) Also in the same vein, Art. XVIII of the agreement between Canada and Egypt of 13 November 1996. For other examples see UNCTAD, International Investment Instruments: A Compendium, vols III (1996) and V (2000). 107 Report to the General Assembly, YILC, 1966, vol II, p 201. See cited examples supra of Art. XI(43) of the Convention on privileges and immunity of the specialized agencies: Each State party to this Convention shall indicate in its instrument of accession the specialized agency or agencies in respect of which it undertakes to apply the provisions of this Convention. Each State party to this Convention may by a subsequent written notification to the Secretary-General of the United Nations undertake to apply the provisions of this Convention to one or more further specialized agencies. This notification shall take effect on the date of its receipt by the SecretaryGeneral. (UNTS, vol. 33, p 286) Such notification, as indicated (supra para. 19) has a suspensive condition on which the establishment of the consent of the State to be bound by the said Convention depends. Also see Art. 92, para. 3 of The Hague Convention of 18 October 1907: The subsequent deposits of ratifications shall be made by means of a written notification, addressed to the Netherland Government and accompanied by the instrument of ratification.…the said Government shall at the same time inform the Powers of the date on which it received the notification. 108 This is the example of a trade Convention concluded on 19 August 1911 between Japan and France, ratification of which was notified by Japan on 29 February 1912 by the Ambassador while the exchange of ratifications was performed in Paris on 22 April 1912. See J. Basdevant, supra n 15, p 583, fn 5; see in the same category, Art. 92, para. 3 of the Convention of The Hague of 18 October 1907. 109 Certain conventions of the European Council even envisage the procedure of ‘negative notification’, in order to simplify their procedures of conclusion and speed up their entry into force. In fact, the entry into force will take place at the expiry of a certain period from the date of the opening to acceptance, except if one of the contracting parties notifies an objection to the entry into force. In that case, it is the classical procedure which is applied. See R. Brillat, ‘La participation de la Communauté aux Conventions du Conseil de l'Europe’, AFDI, 1991, pp 822–3. Also see the commentary on Art. 78 in the present work. 110 Official Records, Summary Records, 2nd session, 10th plenary session, 29 April 1969, p 27, para. 10. 111 See examples of treaties cited in paras 30 ff. 112 See particularly the position of Greece as well as that of Sir Humphrey Waldock (expertconseil), in Official Records, Summary Records, 2nd session, p 28, paras 16 and 19. 113 We chose this example owing to the identity of the object of these agreements and their number (more than 2,300 agreements were concluded across the world). The time limit can be one month after the date of exchange or notification of the instruments of ratification; this date is confused with the entry into force of the treaty (Art. XVI of the American model of agreement of encouragement and protection of the investment: ‘The present treaty enters into force thirty days after the date of the exchange of the instruments of ratification’; in the same sense, Art. 13 of the model agreement relating to the Economic Union between Belgium and Luxembourg; Art. 13 of the agreement between Germany and Israel of 24 June 1976. As for notification, Art. 12 of the French model prescribes: ‘Each of the Contracting Parties shall notify to other one the accomplishment of the internal procedures requested for the entry into force of the present agreement, which will take effect a month after the day of the receipt of the last notification’; in the same sense, Art. XV, para. 3 of the agreement between Canada and Lebanon of 11 April 1997; Art. 14 of the agreement between Denmark and Poland of 13 October 1990; Art. 14 of the Chinese model; Art. 11 of the Chilean model. The time limit can

be three months (Art. XVIII, para. 1 of the agreement between Canada and the Philippines of 9 November 1995 where it is about notification). For other examples, see UNCTAD, International Investment, supra n 106. 114 See Art. 9 of the treaty of Beijing of 27 March 1898 concluded between China and Russia relating to lease and exploitation by Russia of Harbour Arthur and Talienwan; in the same sense, the treaty of Beijing of 1 July 1898 concluded between Great Britain and China relating to a lease in the north of China to the benefit of Great Britain, cited in Cl.-A. Colliard, supra n 18, pp 13 ff. 115 Article 95: The present Convention shall take effect, in the case of the Powers which were not a party to the first deposit of ratifications, sixty days after the date of the procès-verbal of this deposit, and, in the case of the Powers which ratify subsequently or which adhere, sixty days after the notification of their ratification or of their adhesion has been received by the Netherland Government. 116 Article 44, para. II: ‘Every accession which will intervene after the entry into force of the present Act…will produce its effects from the ninetieth day which will follow the date of its receipt by the Secretary-General of the United Nations’; for other examples, see Cl.-A. Colliard and A. Mann, supra n 19 and Précis de la pratique du Secrétaire général, supra n 74, paras 243 ff. 117 See YILC, 1966, vol. II, p 201. This concerns Art. 51, para. 2 of the first and Art. 77, para. 2 of the second, both being drafted in exactly the same way: ‘For each State ratifying or acceding to the Convention after the deposit of the twenty-second instrument of ratification or accession, the Convention shall enter into force on the thirtieth day after deposit by such State of its instrument of ratification or accession’. 118 Article 13, para. 3: ‘Any ratification or accession effected subsequent to the latter date shall become effective on the ninetieth day following the deposit of the instrument of ratification or accession’. Paragraph 2 of this Article stipulates that ‘The present Convention shall come into force on the ninetieth day following the date of deposit of the twentieth instrument of ratification or accession’. 119 Time limit of three months between deposit and entry into force of the treaty on the international plane: Arts 49 and 27 of the International Covenant on Civil and Political Rights, and on Economic, Social and Cultural Rights of 1966. The International Covenant on Civil and Political Rights prescribes in Art. 49 that: 1. The present Covenant shall enter into force three months after the date of the deposit with the Secretary-General of the United Nations of the thirty-fifth instrument of ratification or instrument of accession. 2. For each State ratifying the present Covenant or acceding to it after the deposit of the thirty-fifth instrument of ratification or instrument of accession, the present Covenant shall enter into force three months after the date of the deposit of its own instrument of ratification or instrument of accession. See on the regional plane, the African Charter of Human and Peoples' Rights of 1981, where the time limit of three months for the entry into force of the Charter is calculated from ‘receipt’ by the depositary of the instruments of ratification or of accession of the absolute majority of the member States of the OAS. Its Art. 63, para. 3 prescribes: ‘The present Charter shall come into force three months after the reception by the Secretary General of the instruments of ratification or adherence of a simple majority of the member states of the Organization of African Unity’. Article 65 adds that: ‘For each of the States that will ratify or adhere to the present Charter after its coming into force, the Charter shall take effect three months after the date of the deposit by that State of its instrument of ratification or adherence’. The time limit of 30 days in the Convention on the Elimination of Racial Discrimination of 1965 (Art. 19), the Convention on the Elimination of All Forms of Discrimination Against Women of 18 December 1979 (Art. 27), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984; the European Social Charter of 1961 (Art. 35). 120 Some examples illustrate a considerable variety of solutions: Art. 17 in fine of the Convention on the Establishment of the Agency for Air Navigation Safety in Africa and Madagascar of 25 October 1974: ‘accession will take effect 30 days after the deposit of the instrument of accession’ (text in Yearbook of International Organizations, 1994–95, vol. I, pp 40–1); the Convention on the establishment of the Arab maritime petroleum transport company of 12 May 1972 contains an unusual disposition. While deposit is sufficient to mark the establishment of consent and at the same time its entry into force, a period is required after the deposit of instruments by non-constituting member States: The present agreement will be considered as ratified and will enter into force at the deposit…, of ratifications of a number of Member States among which parts, taken together, will represent the two thirds of the social capital. It will take effect regarding quite other State the first day of the month which will follow deposit, by aforementioned State, of acts establishing its accession and, within six months as from this deposit…((Art. 26), text in H. T. Adam, Les organismes internationaux specialises. Contribution à la théorie générale des Etablissements publics internationaux (Paris: LGDJ, 1992), p 710) A comparable provision is envisaged in the Convention establishing the Arab Society of services of 23 November 1973, Art. 25 (in ibid, pp 751–2).

121 See the example of the Geneva Conventions of 12 August 1949 which, except for certain situations listed which are likely to give immediate effect to deposited ratifications and to notified accessions, envisages a period of six months so that ratifications and accessions ‘produce their effects’. 122 See the commentary on Art. 77 in the present work. 123 For the African Bank, indicated authority is the Council of the Governors of the Bank: for the second Convention, it is the director general for WIPO. See Précis de la pratique du Secrétaire général, supra n 74, paras 138 and 246–7. 124 Article 17(3). 1434 UNTS 24265; see in the same sense, Art. 40 of the Agreement Establishing the Caribbean Food Corporation of 18 August 1976, ibid, p 1052. 125 Ibid, para. 138. 126 A proposal of amendment emanating from Canada during the Vienna Conference suggested adding the words ‘or the instrument’ after the word ‘treaty’ in the introductory phrase. According to Canada, ‘it often happens that a State, for administrative reasons, stipulates in an instrument of ratification or accession that this ratification or this accession will take effect in a date other than that of the deposit of the instrument’. See CONF.IN/.39/C.1/L.110, 1st session, p 105, para. 38, and its rejection by the Committee of Redaction, ibid, p 392, para. 96. 127 See, however, Agreement relating to the implementation of Part XI of Convention on the Law of the Sea, cited supra, para. 3. * Professor, Tunis University, Tunisia. ** Assistant at Tunis University, Tunisia.

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Volume I, Part II Conclusion and Entry into Force of Treaties, s.1 Conclusion of Treaties, Art.16 1986 Vienna Convention Ferhat Horchani, Youssri Ben Hammadi From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Treaties, ratification — Treaties, entry into force — Customary international law

(p. 357) 1986 Vienna Convention Article 16 Exchange or deposit of instruments of ratification, formal confirmation, acceptance, approval or accession 1. Unless the treaty otherwise provides, instruments of ratification, instruments relating to an act of formal confirmation or instruments of acceptance, approval or accession establish the consent of a State or of an international organization to be bound by a treaty between one or more States and one or more international organizations upon: (a) their exchange between the contracting States and contracting organizations; (b) their deposit with the depositary; or (c) their notification to the contracting States and to the contracting organizations or to the depositary, if so agreed. 2. Unless the treaty otherwise provides, instruments relating to an act of formal confirmation or instruments of acceptance, approval or accession establish the consent of an international organization to be bound by a treaty between international organizations upon: (a) their exchange between the contracting organizations; (b) their deposit with the depositary; or (c) their notification to the contracting organizations or to the depositary, if so agreed.

Bibliography Arrighi, J.-M., ‘Les réformes à la Charte de l'Organisation des Etats américains: problèmes de droit des traités’, AFDI, 1997, pp 93, 104 Brillat, R., ‘La participation de la Communauté aux Conventions du Conseil de l'Europe’, AFDI, 1991, pp 819–32 Gaja, G., ‘A “new” Vienna convention on treaties between states and international organisations or between international organisations: a critical commentary’, BYBIL, 1987, pp 253–69 Manin, Ph., ‘La Convention de Vienne sur le droit des traités entre Etats et organisations internationales ou entre organisations internationales’, AFDI, 1986, pp 454–73 Nascimento e Silva, G. E. do, ‘The 1969 and the 1986 Conventions on the Law of Treaties: A Comparison’ in Yoram Distein (ed.), Essays in Honour of Shabtai Rosenne: International law at a time of perplexity (1989), pp 461–87 Sermet, L., ‘Actualité de l'adhésion de la Communauté européenne aux organisations internationales et aux traités’, AFDI, 1997, pp 671–99 Treves, T., ‘Innovations dans la technique de codification du droit international. La préparation de la Conférence de Vienne sur les traités passés par les organisations internationales’, AFDI, 1986, pp 474–94 Zemanek, Karl, ‘Convention de Vienne sur le droit des traités entre Etats et organisations internationales ou entre organisations internationales’, available at: http://untreaty.un.org/cod/avl/pdf/ha/vcltsio/vcltsio-f.pdf, pp 1–5 1. In his First Report of 3 April 1972 on the question that would subsequently be the object of the future Convention of 1986, Paul Reuter, Special Rapporteur, rightfully expressed the approach which had prevailed throughout the elaboration of the Convention and which characterized the draft Article 16: (p. 358) Where the treaties of international organizations call for special provisions or adjustments of the articles of the 1969 Convention, it is desirable that such provisions and adjustments should be few in number and as simple as possible, and that they should not create more problems than they solve. In particular, the field of application of new articles must be clearly delimited and the number of special regimes must not be increased unduly,1 particularly for States that are parties to both Conventions.2 The concern of the drafters of the 1986 Convention to safeguard the unity of the general regime of conclusion and entry into force of international treaties explains the obvious similarity in Article 16 between both the Vienna Conventions of 1969 and 1986, even if this could have caused the transposition of imperfections from the first to the second.3 As far as international organizations are involved as potential parties to a treaty with a position entirely assimilated to that of a State, the substantial provisions already adopted in 1969 remain valid and have to be applied. In this regard, the 1986 Convention is a mutatis mutandis application to international organizations of the 1969 Convention on the Law of Treaties. This is precisely the case of Article 16. Also, commentaries relating to the first Convention remain valid for the second, provided, of course, that they are adapted to international organizations. 2. Draft Article 16 did not gave rise, in reality, to any substantial debate4 and it took its final form on 21 July 1982 at the 34th session of the ILC.5 The same version of the draft was

retained by the Plenary Commission of the Vienna Conference of 1986 and adopted, following the example of other Articles, without a vote.6 3. The modifications made to Article 16 of the Convention of 1986 were intended to adjust the situation of international organizations in their contractual relations, either between them or with States. Also, the draft was early divided into two paragraphs as though it concerned two separate substantive provisions, in order to take account, more explicitly, for each type of relationship, in accordance with Article 1 of the Convention.7(p. 359) The modifications are, in reality, minor in spite of the apparent length of the provision. The sense of repetition, or even heaviness, that emerges from its wording contrasts with the acuity of Article 16 of the 1969 Convention.8 4. The concern that motivated the drafters, whether within the ILC or during the Conference, was to grant maximum flexibility and freedom to international organizations. This sometimes explains the multiplicity in the first drafts of formulae,9 which were intended to prevent contradictory conventional stipulations relating to another ‘moment’ than the one envisaged and which already appeared in the opening clause of Article 16 of the 1969 Convention. Finally, similarly to this latter provision, the final version of the 1986 Convention retained the single expression ‘[u]nless the treaty otherwise provides’ and everything suggests that the possibility of a contrary agreement should be embodied not in a separate instrument, which would have been possible if the phrase ‘or if so agreed’ had been retained, but in the treaty itself.10 5. Furthermore, the notion of formal confirmation has been substituted for that of ratification to be adjusted to international organizations.11 As a result, consent will be established at the moment of exchange, deposit, or notification of the instrument relating to this act of confirmation.12 For some authors: the question which arises is whether the use of the term ‘ratification’ by an international organization has a vitiating effect. In practice, a document fulfilling all the necessary formalities would be accepted by the depositary.13 But, we have to note that what is intended is ‘an act of formal confirmation’14 and not simply ‘the formal confirmation’ or ‘the act of formal confirmation’.15 The organization (p. 360) consequently remains free to choose the material form of the instrument, the exchange, deposit, or notification which will establish its consent to be bound.16 6. In its Resolution 52/153 of 15 December 1997 (‘United Nations Decade of International Law’), the United Nations General Assembly encouraged States to consider ratifying or acceding to the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, international organizations that have signed the Convention to deposit an act of formal confirmation of the Convention and other international organizations entitled to do so to accede to it at an early date.17 7. In its Resolution 53/100 of 8 December 1998, the UN General Assembly entrusted the Secretary-General with the task of submitting, on behalf of the United Nations, an act of formal confirmation of the Convention, as provided for in Article 83. Pursuant to this resolution, the UN Secretary-General submitted, on behalf of the United Nations, an instrument of formal confirmation of the Convention on 21 December 1998.18 8. Prior to the UN's deposit of its instrument of formal confirmation, no other international organization had submitted its instrument. Apparently, this was mainly because the United Nations itself had not deposited its confirmation although it was the first to sign the Convention. Indeed, the International Maritime Organization (IMO) Secretary-General deposited, on behalf of the IMO, an act of formal confirmation on 14 February 2000; the Organization for the Prohibition of Chemical Weapons (OPCW) deposited its instrument of accession on 2 June 2000.19 The Fifty-Third World Health Assembly authorized, on 20 May 2000, the Director General of the World Health Organization (WHO) to deposit an act of formal confirmation;20 the Eighty-Eighth Session of the International Labour Conference authorized, on 12 June 2000, the Director General of the International Labour Organization (ILO) to deposit an act of formal confirmation.21 In its forty-fifth session (25 September to 3 October 2000), the Coordination Committee of the World Intellectual Property Organization (WIPO) authorized the Director General to make WIPO a party to the 1986 Vienna Convention by submitting with the Secretary-General of the United Nations an instrument of accession to the said Convention.22 The (p. 361) International Atomic Energy Agency (IAEA) submitted its accession instrument on 26 April 2001. The Convention enters into force after the deposit of instruments of ratification or accession by 35 States. Until 3 May 2010, 28 States had ratified or acceded to the Convention.23 Twelve international organization have deposited an instrument relating to an act of formal confirmation or an instrument of accession to the said Convention.24 9. If one considers only big multilateral conventions and notably those that codify international law, one could, at first glance, maintain that, contrary to Article 16 of the 1969 Convention, the corresponding provision of the 1986 Convention does not codify a wellestablished customary rule. International organizations were never allowed to participate on an equal footing with States in this category of convention. Nevertheless, the provision also covers numerous conventions binding international organizations with other international organizations or binding them to States, including on a bilateral or regional plane. From this viewpoint, Article 16 of the 1986 Convention can be considered as codifying a well-established customary rule. *

FERHAT HORCHANI

 YOUSSRI BEN HAMMADI **

Footnotes: 1 A/CN.4/258, YILC, 1972, vol. II, p 195, para. 76. 2 Ibid; in the same sense, Report of the ILC to the General Assembly relating to discussions of the 34th session, YILC, 1982, vol. II, p 6. On this question in general, see T. Treves, ‘Innovations dans la technique de codification du droit international. La préparation de la Conférence de Vienne sur les traités passés par les organisations internationales’, AFDI, 1986, pp 475–93 and esp. pp 483–4. 3 Similarly to the 1969 Convention, but contrary to several drafts, ‘the notification’ of instruments barely appears in the title of Art. 16 of the 1986 Convention. See eg YILC, 1975, vol. II, p 35; Report to the General Assembly; YILC, 1975, vol. II, p 182; YILC, 1975, vol. I, 1347th session, pp 227 ff; 1353rd meeting, p 270, para. 80; YILC, 1981, vol. I, 1647th meeting, pp 21–2. 4 See notably YILC, 1975, vol. I, 1353rd meeting, p 271, para. 81; YILC, 1981, vol. I, 1648th meeting, p 27, para. 11. 5 See Report to the General Assembly, YILC, 1982, vol. II, p 31 and text of the Article adopted at the 1750th session of the ILC as well as the commentary submitted to the General Assembly, p 31. 6 See Official Records, Summary Records, 18 February–21 March 1986, vol. I, paras 44, 49, and 51. 7 Following the example of the corresponding provisions of the 1969 Convention, the draft of Art. 16 introduced in the fourth report of 21 March 1975 contained a single paragraph but took into account, by using the expression ‘depending on circumstances’, treaties concluded by international organizations. See IN/CN.4/285, YILC, 1975, vol. II, p 35; see in the same sense, YILC, 1975, vol. I, 1347th meeting, p 227. The draft adopted in the 27th session of the Commission in its report of the same year to the General Assembly, contained two paras following the example of the final text, see Report to the General Assembly, YILC, 1975, vol. II, p 182. The Special Rapporteur, Paul Reuter, proposed again in his Tenth Report of 1981 to reduce the Article to a single paragraph, see IN/CN.4/341 and Add.1, YILC, 1981, vol. II, p 55, para. 50. 8 The Commission acknowledged that this heaviness affected other Articles which were reduced notably by merging two paragraphs in one, but this was not the case of Art. 16. During the 1986 Conference, the Drafting Committee considered it necessary in certain cases ‘to keep the precision of the basic proposal of the Commission of international law even with a certain heaviness’; see Official Records, Summary Records, 18 February–21 March 1986, vol. I, para. 7. 9 ‘Unless the treaty otherwise provides’, and ‘if so agreed’. See YILC, 1975, vol. II, IN/CN.4/285, p 35 commentary to Art. 16; in the same sense YILC, 1975, vol. I, 1347th meeting, p 228, para. 8. Mr Francis Vallat rightfully pointed out that these additions risk having unfortunate repercussions on the interpretation of the corresponding provision of the Vienna Convention 1969. See ibid, para. 39. 10 See the observations of Mr Pinto and Mr Ouchakov in YILC, 1975, vol I, 1348th meeting, p 233, para. 15 and p 234, para. 28, as well as the draft submitted in the 1353rd meeting, ibid, p 270, para. 80. 11 The UN signed the Convention on 12 February 1987 before depositing its act; Convention of formal confirmation on 21 December 1998. 12 The act of formal confirmation was defined by Art. 2(b bis) of the Convention as ‘an international act corresponding to that of ratification by a State, whereby an international organization establishes on the international plane its consent to be bound by a treaty’ (emphasis added). 13 Geraldo Eulálio do Nascimento e Silva, The 1969 and the 1986 Conventions on the Law of Treaties: A Comparison. In International law at a time of perplexity: essays in honor of Shabtai Rosenne (1989), p 478. 14 See commentary on Arts 2, 11, and 14 supra. See Ph. Manin, ‘La Convention de Vienne sur le droit des traités entre Etats et organisations internationales ou entre organisations internationales’, AFDI, 1986, pp 455–73 and esp. p 463. 15 Different drafts use this last expression which appeared for the first time in 1975. See Report of the ILC to General Assembly, YILC, 1975, vol. II, pp 186 and 195, and the commentary on Art. 8 in the present work. According to the Special Rapporteur, the use of the indefinite form ‘an act’, is required because, in contemporary practice, the ratification is a well-established procedure which has the same meaning for all States, while international organizations use all types of acts to achieve the required effects. See YILC, 1981, vol. I, 1681st meeting, p 190, para. 45. See the commentary on Art. 14 in the present work. 16 See YILC, 1981, vol. I, 1681st meeting, p 190, para. 45, p 52 (see proposal of Mr Ouchakov) and p 191, paras 64–5 (commentary of Mr Reuter); Report to the General Assembly, ACDI, vol. II, p 135, as well as the commentary on Art. 16 in the present work. Certain conventions, notably those of the Council of Europe, do not retain the procedure of formal confirmation; only procedures relating to approval, ratification, or approval by the European Community are envisaged. See R. Brillat, ‘La participation de la Communauté aux Conventions du Conseil de l'Europe’, AFDI, 1991, p 825. On the question in general, see L. Sermet, ‘Actualité de l'adhésion de la Communauté européenne aux organisations internationales et aux traités’, AFDI, 1997, pp 671–99. The use of the term ‘act of formal confirmation’ is not common in practice. On this aspect, see G. Gaja, ‘A “new” Vienna convention on treaties between states and international organisations or between international organisations: a

critical commentary’, BYBIL, 1987, p 258. 17 See: http://www.wipo.int/edocs/mdocs/govbody/en/wo_cc_45/wo_cc_45_2.pdf. 18 Ibid. The said resolution, recalling Res. 52/153, again encouraged States to consider ratifying or acceding to the Convention, international organizations that have signed the Convention to deposit an act of formal confirmation of the Convention, and other international organizations entitled to do so to accede to it at an early date. 19 Ibid. 20 Ibid. See also: http://apps.who.int/gb/archive/pdf_files/WHA53/ResWHA53/9.pdf. 21 Ibid. 22 Ibid. 23 See Status of the Convention on the UN Treaty Collection website at: http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXIII3&chapter=23&lang=en. 24 Ibid. * Professor, Tunis University, Tunisia. ** Assistant at Tunis University, Tunisia.

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Volume I, Part II Conclusion and Entry into Force of Treaties, s.1 Conclusion of Treaties, Art.17 1969 Vienna Convention Carol Hilling From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Travaux préparatoires — Treaties, ratification — Customary international law — Treaties, reservations and declarations

(p. 362) 1969 Vienna Convention Article 17 Consent to be bound by part of a treaty and choice of differing provisions 1. Without prejudice to articles 19 to 23, the consent of a State to be bound by part of a treaty is effective only if the treaty so permits or the other contracting States so agree. 2. The consent of a State to be bound by a treaty which permits a choice between differing provisions is effective only if it is made clear to which of the provisions the consent relates. A. General characteristics 362 Object and purpose 362 Customary international law 364 B. Scope of the provision 364 The reference to the provisions concerning reservations 364 The consent of the other State parties 365 The expression of the choice between provisions 365 C. Unanimous consent for the effet utile of Article 17 365

A. General characteristics 1. The ILC did not spend much time discussing Article 17. The text proposed by the Plenary Commission of the United Nations International Conference on the Law of Treaties was adopted without debate or amendment. Authors have shown little interest in it and it has not been the object of any particularly enlightening practice.1

References

Object and purpose 2. The first paragraph of Article 17 refers to two different situations: where the treaty expressly allows partial ratification, specifying which provisions States may choose not to ratify and the conditions to be respected; and where the treaty does not provide for partial ratification but the other parties consent to it. 3. The first situation is the only one that was initially considered by the ILC in its discussion on the treaty ratification process, as illustrated by the original text of draft Article 11: (p. 363) Unless the treaty itself expressly contemplates that the participating states may elect to become bound by a part or parts only of the treaty, the instrument of ratification must apply to the whole treaty.2 4. This provision as drafted reflected a situation which existed pursuant to some treaties that expressly allowed partial adherence or ratification,3 such as the General Act for the Settlement of Disputes4 which, under the terms of its Article 38, allows States to choose the dispute settlement mechanisms they want to accept: Accession to the present General Act may extend: A. Either to all the provisions of the Act (chapters I, II, III, and IV); B. Or to those provisions only which relate to conciliation and judicial settlement (chapters I and II), together with the general provisions dealing with these procedures (chapter IV); C. Or to those provisions only which relate to conciliation (chapter I), together with the general provisions concerning that procedures (chapter IV). The Contracting Parties may benefit by the accessions of other Parties only in so far as they have themselves assumed the same obligations. 5. Other examples are found in several conventions of the International Labour Organization. Article 14 of the Migration for Employment Convention, for instance, allowed members to exclude from their ratification any or all Annexes to the Convention. Under the terms of Article 2 of the Fee-Charging Employment Agencies Convention, members may choose whether to accept the provisions of Part II of the Convention on progressive abolition of fee-charging employment agencies conducted with a view to profit and regulation of other agencies, as well as those of Part III on regulation of fee-charging employment agencies. Another example is found in Article 25 of the Labour Inspection Convention which allows members to exclude Part II concerning labour inspection in commerce from their acceptance of the Convention.

References

6. The case of treaties that are silent on the issue of partial ratification was not discussed until later. There were objections to the draft text from those who feared that it would allow States to circumvent the reservation mechanism and thus avoid the consequences of a reservation.5 Nonetheless, the ILC adopted a text reflecting State practice and including the possibility to be bound by only some of the provisions of a treaty even in the absence of any express provision allowing it, with the consent of the other States parties.6 7. The second paragraph of Article 17 only addresses the first situation, namely when a treaty allows the parties to choose the provisions they accept. This choice must be specified in order for the State's expression of its consent to be bound to produce legal effects.

(p. 364) Customary international law 8. It seems that at the time the Convention was drafted, it was generally accepted that the instrument by which a State expressed its consent to be bound by a treaty was deemed to apply to the whole treaty, while derogations were allowed.7 Thus the provisions of Article 17 allowing for partial ratification even in the absence of any express provisions codified a rule of customary international law.

B. Scope of the provision The reference to the provisions concerning reservations 9. The reference to the provisions of the Convention concerning reservations was included specifically to underline the distinction to be made between the reservation mechanism and partial ratification, even if, for all intents and purposes, the effects can be similar.8 10. Treaties that allow States to be bound only partially, either by excluding some provisions or by choosing among the provisions of the treaty, do not pose any significant difficulties. Whether the divisible part is an annex,9 or a part of the treaty,10 or States may choose between arbitration and judicial settlement of their disputes,11 States parties had an opportunity, during the negotiations, to ensure that the integrity of the treaty is preserved.

References 11. When partial ratification is expressly allowed by the treaty itself, it can be distinguished from the reservation mechanism in that States are being told which provisions they can exclude or among which provisions they can choose, as well as, as the case may be, the consequences of such a choice. The Labour Inspection Convention of the International Labour Organization, for instance, requires that a State that has chosen to exclude the provisions of the Convention concerning labour inspection in commerce report annually on the position of its law and practice in this respect.12 12. Partial ratification and reservations may coexist, as illustrated by the General Act for the Settlement of Disputes.13 That being said, the only reservations allowed under the terms of Article 39 are clearly defined.

References 13. On the other hand, partial ratification that is not expressly provided for raises several issues that do not find any clear answers either in case law or in State practice.

(p. 365) The consent of the other State parties 14. When the treaty does not provide for it, partial ratification is possible with the consent of the other parties. However, the travaux préparatoires give little indication of the degree of consent required. It would seem that unanimity should be required otherwise those who feared that States might circumvent the reservation procedure would find their concerns well founded.14 15. However, the International Court of Justice has refused to recognize the existence of a rule requiring unanimous consent to reservations in spite of the relatively well-established State practice as well as a resolution of the Security Council of the United Nations to this effect.15 For the time being, in the absence of any convincing practice concerning partial ratification requiring consent, it would be difficult to pretend that unanimous consent to partial ratification is a customary international norm.

The expression of the choice between provisions 16. When a treaty allows States to choose among its provisions, the parties must indicate, in their ratification instrument, the provisions by which they consent to be bound. The Special Rapporteur had proposed a draft which expressly provided that the ratification would not take effect until the State concerned had provided the necessary information.16 The final draft confirms that the validity of the consent is not affected by the absence of clarifications; only its effects are.

C. Unanimous consent for the effet utile of Article 17 17. The fact is that it is difficult to see how the partial ratification of a treaty with the consent of the parties, in the absence of express provisions, would be different from the reservation

mechanism unless unanimous consent is required. 18. Partial ratification forms a derogation from the principle of treaty integrity. If it is not expressly provided for, it should be analysed in the light of the rules concerning treaty divisibility.17 Thus the condition that partial ratification must be compatible with the object and purpose of the treaty, for instance, would apply as it does in the case of a reservation which is not expressly permitted.

References 19. Another issue is that of the application of a partially ratified treaty. With respect to reservations, State practice has confirmed the rule found at Article 20(4)(b) of the 1969 Vienna Convention which provides that an objection does not prevent the entry into force of the treaty between the objecting State and the author of the reservation, (p. 366) unless the objecting State says otherwise.18 In as much as partial ratification of a treaty is essentially the same as a reservation in that it limits the State's commitment, the same rule should apply. A priori, the rules governing reservations could apply by analogy to partial treaty ratification. 20. However, Article 17 meant to establish a mechanism that would be different from that of reservations. Therefore, it should be interpreted according to the rule set out under Article 31 so as to give it effet utile. Since the rules concerning reservations are applicable to partial ratification, the two mechanisms could be distinguished by requiring the unanimous consent of the parties to the partial ratification of a treaty, a solution that was contemplated during the travaux préparatoires. The absence of State practice with respect to partial ratification not expressly allowed would tend to indicate that this is a purely theoretical question, as State parties seem to prefer to avail themselves of the much clearer reservation mechanism. *

CAROL HILLING

Footnotes: 1 I. Sinclair only refers to the first part of Art. 17 in The Vienna Convention on the Law of Treaties (Manchester: Manchester University Press, 1973), p 42. In a more recent work by A. Aust, Modern Treaty Law and Practice (Cambridge: Cambridge University Press, 2007), p 107, one paragraph describes Art. 17 and gives as a contemporary example the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects (adopted 10 October 1980, entered into force 2 December 1983, UNTS, vol. 1342, p 137). 2 ILC, Summary Records of its 14th session (24 April–29 June 1962) A/CN.4/144 and Add.l (YILC, vol. I, Art. 11 at 111). 3 Revised General Act for the Pacific Settlement of International Disputes (adopted 28 April 1949, entered into force 20 September 1950) UNTS, vol. 71, p 101; Convention concerning Labour Inspection in Industry and Commerce (Geneva, 11 July 1947, C81); Convention concerning Migration for Employment (Geneva, 1 July 1949, C97); Convention concerning FeeCharging Employment Agencies (Geneva, 1 July 1949, C96). 4 UNTS, vol. 71, p 101. 5 Cf comments by R. Ago and Special Rapporteur Sir Humphrey Waldock at the 787th session of the ILC: A/CN.4/175 and Add.1–3, A/CN.4/177 and Add.l, A/CN.4/L.107 (YILC, vol. I, pp 83– 6). 6 Ibid, pp 82–5. 7 ILC, Documents of the second part of the 17th session and of the 18th session including the Reports of the Commission to the General Assembly (1966) A/CN.4/SER, A/1966/Add. 1 (YILC, vol. II, pp 201–2). 8 ILC, 787th meeting, A/CN.4/175 and Add.1–3, A/CN.4/177 and Add.l, A/CN.4/L.107 (YILC, vol. I, p 80). 9 Convention concerning Migration for Employment, C97 (revised 1949), Art. 14. 10 Convention concerning Labour Inspection in Industry and Commerce, C81, Art. 25 referring to Part II: Labour Inspection in Commerce, C81. 11 Convention concerning Fee-Charging Employment Agencies (C96), Art. 2 referring to Parts II (Progressive abolition of fee-charging employment agencies conducted with a view to profit and regulation of other agencies) and III (Regulation of fee-charging employment agencies). General Act for the Settlement of Disputes, Art. 38 allowing a choice between the different dispute-settlement mechanisms. 12 Article 25, para. 3. 13 Article 39, para. 1. 14 Cf Mr Tsuruoka's comments in Summary Records of the first part of the 17th Session (812th meeting), A/CN.4/175 and Add.l, 2, 3, and 4; A/CN.4/177 and Add.l and 2; A/CN.4/L.107 (YILC, vol. I, p 261). 15 Ibid; cf H. Lauterpacht, The Development of International Law by the International Court (Cambridge: Grotius, 1982), pp 186–8. 16 Cf Summary Records of the first part of the 17th session (3 May–9 July 1965) 787th meeting) (A/CN.4/175 and Add.1–3, A/CN.4/177 and Add. l, A/CN.4/L.107 (YILC, vol. I, p 80). 17 The rule set out in the chapter on Invalidity, Termination and Suspension of the Operation of Treaties (Art. 44) is implicitly included in the provisions concerning amendment and

modification (Art. 41, para. 1(ii)). On the principle of treaty integrity and the divisibility exception cf P. Reuter, Introduction to the Law of Treaties (London: Kegan Paul, 1995), para. 242 and the commentary on Art. 44; Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, ICJ Reports 1951, pp 15, 27–8. 18 See the commentary on this Article infra. * Immigration and Refugee Protection Board of Canada Member, Montreal. The author wishes to thank Kahina Ouerdane for her assistance in the translation of the original French version of this text.

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Volume I, Part II Conclusion and Entry into Force of Treaties, s.1 Conclusion of Treaties, Art.17 1986 Vienna Convention Carol Hilling From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Travaux préparatoires — Treaties, ratification — Customary international law

(p. 367) 1986 Vienna Convention Article 17 Consent to be bound by part of a treaty and choice of differing provisions 1. Without prejudice to articles 19 to 23, the consent of a State or of an international organization to be bound by part of a treaty is effective only if the treaty so permits, or if the contracting States and contracting organizations or, as the case may be, the contracting organizations so agree. 2. The consent of a State or of an international organization to be bound by a treaty which permits a choice between differing provisions is effective only if it is made clear to which of the provisions the consent relates. 1. Article 17 of the 1986 Convention simply adds international organizations to the text of Article 17 of the 1969 Convention. It was not debated before its adoption,1 nor was it mentioned in the First Report on the issue of treaties between States and international organizations and between two or more international organizations.2 In the opinion of the Special Rapporteur, P. Reuter, the options available to States should also be open to international organizations, and Article 17 did not pose any particular difficulty.3 Indeed, at least with respect to bilateral treaties between international organizations, the issue of partial ratification is unlikely to arise any more than the issue of reservations. Although partial ratification by an organization is possible in theory, in practice it rarely occurs. 2. The Commentaries to the 1969 Convention largely apply to the provisions of Article 17 of the 1986 Convention. However, the issue of partial ratification of a multilateral treaty between States and international organizations arises in a context that is different when the treaty does not expressly provide for it. 3. In as much as international organizations may become parties to treaties with States for the purposes of the exercise of their competence,4 it is theoretically possible that they consent to be bound by certain provisions of the treaty only. Since the adherence to such treaties is dependent upon States, its conditions and scope will usually be specified in the agreement or the protocol allowing it. As a general rule, with such exceptions as the European agreements,5 in which the European Union has been able to participate (p. 368) according to a special procedure,6 the consent of all States parties is required before an international organization can adhere to a treaty. Consequently, if partial ratification of the treaty is not expressly provided for, it should only be possible with the consent of all States parties. *

CAROL HILLING

References

Footnotes: 1 United Nations Conference on the Law of Treaties between States and International Organizations or between International Organizations: Summary records of the plenary meetings and of the meetings of the Committee of the Whole (Vienna, 18 February–21 March 1986) (18 March 1986) A/CONF.129/16 (vol. 1, p 13). 2 ILC, Documents of the 24th session including the Report of the ILC to the General Assembly (1972) A/CN.4/258 (YILC, vol. II, p 172). 3 ILC, Summary Records of the 27th session (5 May–25 July 1975) A/CN.4/285 (YILC, vol. I, p 238). 4 Convention on the Law of the Sea (Montego Bay, 10 December 1982, UNTS, vol. 1833, p 396) and its Annex IX on participation by international organizations, Art. 305; Convention on the Law of the Sea and its Annex IX on participation by international organizations (adopted 10 December 1982, entered into force 16 November 1994). 5 European Agreement on the Exchange of Therapeutic Substances of Human Origin, 15 December 1958, ETS 26; Agreement on the temporary importation, free of duty, of medical, surgical and laboratory equipment for use on free loan in hospitals and other medical institutions for purposes of diagnosis or treatment (adopted 28 April 1960) UNTS, vol. 376 III; European Agreement on the exchange of blood-grouping reagents, 14 May 1962, ETS 39. 6 Instead of the conventional procedure of protocol acceptance, protocols came into force 12 months after acceptance unless a State party notified an objection. Cf P.-H. Imbert, ‘Le consentement des États en droit international’, RGDIP, 1985, vol. 89, pp 353–82. * Immigration and Refugee Protection Board of Canada Member, Montreal. The author wishes to thank Kahina Ouerdane for her assistance in the translation of the original French version of this text.

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Volume I, Part II Conclusion and Entry into Force of Treaties, s.1 Conclusion of Treaties, Art.18 1969 Vienna Convention Laurence Boisson de Chazournes, Anne-Marie La Rosa, Makane Moïse Mbengue From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Object & purpose (treaty interpretation and) — Treaties, ratification — Customary international law — Treaties, conclusion — Treaties, signature — Good faith

(p. 369) 1969 Vienna Convention Article 18 Obligation not to defeat the object and purpose of a treaty prior to its entry into force A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when: (a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or (b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed. A. General characteristics 370 Object and purpose 370 Customary status: an ambiguous position 372 B. Problems of interpretation 383 The notions of ‘object’ and ‘purpose’ of a treaty 383 Relevant acts 383 The scope of the expression ‘object and purpose’ 383 The concept of signature 390 Clarification of the system for accepting treaties 392 The variability of acceptance 392 The limits ratione temporis of acceptance 393 Withdrawal after signature 393 Withdrawal of consent to be bound once expressed 396 C. Legal effects of Article 18(a) 397 On the reality of the obligation 397 Sanctions for breach of the obligation 402

Bibliography Buffard, I. and Zemanek, K., ‘The Object and Purpose of a Treaty: An Enigma?’, Austrian Rev of Int'l and European L, 1998, pp 311–43 Cahier, Ph., ‘L'obligation de ne pas priver un traité de son objet et de son but avant son entrée en vigueur’, Mélanges Fernand Dehousse, vol. I (Brussels: Bruylant, 1979), pp 31–7 Charme, J. S., ‘The Interim Obligation of Article 18 of the Vienna Convention on the Law of Treaties: Making Sense of an Enigma’, The George Washington J of Int'l L and Economics, 1991, pp 74–114 Cot, J.-P., ‘La bonne foi et la conclusion des traités’, RBDI, 1968, pp 140–59 Hassan, T., ‘Good Faith in Treaty Formation’, VaJIL, 1981, p 444 Klabbers, J., ‘Some Problems Regarding the Object and Purpose of Treaties’, Finnish Yearbook of Int'l L, 1997, pp 138–60 McDade, P. V., ‘The Interim Obligation Between Signature and Ratification of a Treaty: Issues Raised by the Recent Actions of Signatories to the Law of the Sea Convention With Respect to the Mining of the Deep Seabed’, NILR, 1985, pp 5–47 (p. 370) Morway, W., ‘The Obligation of a State Not to Frustrate the Object of a Treaty Prior to Its Entry Into Force’, ZaöRV, 1967, pp 451–62 Nisot, J., ‘La force obligatoire des traités signés non encore ratifiés’, JDI, 1930, pp 878– 83 —— ‘L'Article 18 de la Convention de Vienne sur le droit des traités’, RBDI, 1970, pp 498–503 Roggof, M., ‘International Legal Obligation of Signatories to an Unratified Treaty’, Maine L Rev, 1980, pp 266–90 Turner, R. F., ‘Legal Implications of Deferring Ratification of Salt II’, VaJIL, 1981, p 747

A. General characteristics Object and purpose 1. The Vienna Convention on the Law of Treaties of 1969 is a rich source for reflection on the issue of international treaties. Article 18 is indicative of the rebellious and complex nature of the Vienna Convention due to the different interactions and interrelations between the political and the legal brought to bear by the treaties. Apart from this, Article 18 also attests to the innovative nature of the Vienna Convention. In fact, it is part of the body of norms which prove that the work of the ILC did not simply consist in making the ‘Treaty of Treaties’ a ‘holy

book’ codifying sacrosanct rules or principles of treaty practice between States, but also a sort of receptacle and renovator of principles which could effectively contribute to the modern development of international law. Article 18 of the Vienna Convention is located halfway between the concern for codification and the concern for legal innovation. Precisely this feature means that, although its general aims are clear, when its legal elements are dissected numerous difficulties arise. First and foremost, Article 18 of the Vienna Convention pursues the objective of legal security necessary for the stability and viability of international treaties. For this reason, States are able better to assess all the legal implications of the different steps of the conclusion of an international treaty. The further objective of legal legitimacy demands that States refrain from acts contrary to an international treaty even before it has begun to apply. A multilateral or bilateral treaty should translate the common aspirations of the States which partook in its negotiation. In order to guarantee a minimum of legitimacy for the process of transforming these aspirations into legal norms, States must in return be required to comply with a minimum standard of conduct in relation to the treaty. 2. Legal transparency is another general objective of the Article commented on here. Article 18 offers true scope for reflection on the mechanisms to be developed for promoting and guaranteeing information on the position of States in respect of an international treaty. The obligation contained in this clause is embedded within a context of transparency, a quality representative of good faith in contractual relations. However, international law does not enable effective and efficient objectification of the legal channels through which States can express their opinions or establish their official positions in respect of the effects a treaty creates, or does not create, for them. Yet, certain international systems offer paths to follow in this direction. For instance, in the case of the International Labour Organization (ILO) the statutes of which were included in the Peace Treaty of Versailles, it is interesting to take into account the reporting obligations with which States have to comply even before the ratification of international labour conventions. From the moment the International Labour Conference (plenary organ of the organization) adopts a convention, every member State has the obligation to submit (p. 371) it to the competent authorities ‘for the enactment of legislation or other action’.1 The member States are also obliged to report to the Director General of the organization on the said measures. If the State obtains consent with a view to ratification it has to communicate it to the Director General and take all the measures necessary to render its provisions effective.2 In the case in which a State does not wish to be bound by the obligations contained in an international labour convention, it still remains under a transparency obligation. This transparency requirement is established by requiring States to submit at adequate intervals information to the Director General on the position of its law and practice in regard to the matters dealt with in the Convention, showing the extent to which effect has been given, or is proposed to be given, to any of the provisions of the Convention by legislation, administrative action, collective agreement or otherwise and stating the difficulties which prevent or delay the ratification of such Convention.3

References 3. Furthermore, specifying the obligation contained in Article 18 makes it in the same way possible to capture and structure the presumption of good faith. Article 18 allows the legal framing of the particular relation that binds a State to a treaty. In other words, the obligation implicitly arises for every State to make its future behaviour in relation to a treaty public and objective instead of taking advantage of the inviolable prerogative of State. In other words, the fact of refraining from acts that would defeat the object and purpose of a treaty turns out to be a manifestation of the principle of good faith. In the case of ratified treaties, it strengthens the rule pacta sunt servanda. The parties of a treaty oblige themselves to act in good faith in the context of the agreement they have concluded. This conception of the principle of good faith finds its legal expression in Article 18(b) of the Vienna Convention in respect of States having expressed their consent to be bound being from this moment parties to the treaty in question. In general terms, the principle of good faith is also a principle that States have to respect even if they are not contractually bound. Acting in good faith means to conform to: ‘l'esprit de loyauté, de respect du droit, de fidélité aux engagements [et s'abstenir] de dissimulation, de tromperie, de dol dans les relations avec autrui’.4 4. The legal effect of the principle of good faith binding all subjects of international law in all legal transactions, notably before the creation of the contractual bond, finds its expression in Article 18(a) of the Vienna Convention, which creates an obligation for the signatory State (outside the contractual link) to refrain from acts contrary to the object and purpose of a treaty as long as it has not expressed its intention not to be bound by it. The importance of the principle of good faith in Article 18 of the Vienna Convention had therefore led the ILC explicitly to introduce the principle in Article 17 of its draft on the law of treaties: A State which takes part in the negotiation, drawing up or adoption of a treaty, or which has signed a treaty subject to ratification, acceptance or approval, is under an obligation of good faith, unless and until it shall have signified that it does not intend to become a party to the treaty, to refrain from acts calculated to frustrate the objects of the treaty, if and when it should come into force.5 (p. 372) Later, at the Vienna Conference on the Law of Treaties, some States considered it necessary to introduce an explicit reference to the principle of good faith in Article 18 of the Vienna Convention.6 The Netherlands presented an amendment highlighting that it is ‘under the principle of good faith’ that a State is obliged to refrain from acts tending to frustrate the object of a treaty.7 In the end, although Article 18 of the Vienna Convention does not comprise

an explicit reference to the principle of good faith, the preparatory work nevertheless reveals that it has to be considered one of its applications.

Customary status: an ambiguous position 5. Although the ILC's concern in the process of producing Articles on the law of treaties was essentially the codification of State practice in the field of international agreements it is not established that, in all cases, the rules enunciated constitute ipso facto customary rules of international law.8 Article 18 of the Vienna Convention perfectly illustrates this situation, at least with respect to the effect of a State's signature of a treaty (para. (a)). 6. Taken as a whole, legal scholars' positions differ on the matter of the existence of this obligation under customary law. Professor Fernand Dehousse wrote on the issue: Indisputable moral reasons evidently militate in favour of a similar attitude of the State in the interval that lies between signature and ratification. But it must be emphasised that these are only moral reasons: legally, there is no obligation before ratification.9 Other authors deny the existence of this moral obligation either by basing their argument on a State's liberty not to ratify10 or because they consider that such an obligation does not correspond to international practice.11 Some are very careful when it comes to asserting the existence of the obligation. In Jones' opinion, it depends on the circumstances of each case,12 in Oppenheim's and Lauterpacht's view, the principle probably exists.13 Basdevant noted: (p. 373) The conclusion of a treaty in reality entails two distinct operations: one is the negotiation that is terminated by the signature, the object of which is to fix the content of the will of the contracting States, the other is ratification, which is the only step that will create a legal bond between these States or an obligatory rule for them.14 Nevertheless, it should be noted that for a large part of legal scholarship, an obligation of good faith exists in the period following the signature of a treaty and preceding its entry into force according to which a party cannot put itself into a position such that it can no longer respect the conditions existing at the moment of signature.15 7. The analysis of treaties and international jurisprudence underlines the importance of a nuanced reasoning that should be cautious. International treaties are incapable of providing a probative answer and this despite the fact that some conventions contain a clause on the issue. This is the case for Article 38 of the final act of the Berlin Conference of 1885 concerning the freedom of navigation on the Congo River which stipulated that until ratification: ‘the Signatory Powers of the present General Act bind themselves not to take any steps contrary to its provisions’.16 A similar provision can be found in the protocol annexed to the Convention for the Control of the Trade in Arms and Ammunition of 1919:17 At the moment of signing the Convention…, the undersigned Plenipotentiaries declare in the name of their respective governments that they would regard it as contrary to the intention of the High Contracting Parties and to the spirit of the Convention, if a Contracting Party should adopt any measure which is contrary to its provision. (p. 374) This could lead to the conclusion that such treaty provisions show that before the Vienna Convention, a general obligation in international law had existed neither de facto nor de jure. Otherwise, such provisions would be unnecessary.18

References 8. An examination of international jurisprudence on this issue also leaves one confused as to whether the obligation contained in Article 18(a) of the Vienna Convention has customary status. As an indication of recognition, an arbitral tribunal seized of a dispute between Mexico and the United States declared in 1871 that the consequences of a treaty in times of peace arise from the moment of the treaty's signature rather than from the moment of its ratification.19 This declaration was taken up by arbitrator Lieber in the Ignacio Torres case, decided the same year, and relating to the damages caused to the plaintiff by US troops after the signature but before the ratification of the Peace Treaty of Guadalupe-Hidalgo between Mexico and the United States.20 In 1875, in the Revilla case, originating from the same context as the preceding case, the arbitrator pointed out that: In the opinion of the Umpire the claim comes under the 13th Article of the Convention for the suspension of hostilities…If the treaty had not been ratified and the war had continued the Convention might also have fallen to the ground…but the ratification of the treaty confirmed instead of annulling the provisions of the Convention as far as the interval between the signature and the ratification of the treaty was concerned.21

References (p. 375) 9. The delicate issue of the obligation produced by the signature of a treaty arose later in 1921 in the German Reparations case. Article 260 of the Treaty of Versailles stipulated that Germany was required to cede to the Reparation Commission certain rights and interests which it possessed by virtue of various concessions and public utility companies. The problem was how to determine the date which had to be taken into consideration in order to find out which concessions and enterprises Article 260 was aimed at. Was it the date of signature, the date of ratification, or the date of entry into force of the Treaty of Versailles? The Reparation

Commission was of the opinion that it was the date of signature because otherwise the German government would have been able, in the period between the signature and the entry into force of the treaty, to encourage the alienation of rights which it would have been required to hand over. The Commission justified its position by arguing that the ratification had retroactive effect. In the view of the German government, the obligations contained in the treaty could only arise at the moment of its entry into force. The arbitrator, agreeing with the latter point of view, underlined, however, that: …the German government has recognised that it would be contrary to good faith if it had taken any measures after signature to enforce German rights or interests in the hand of non-Germans, before the entry into force of the treaty.22

References 10. Another award, handed down in 1926 by a mixed arbitral tribunal seized of a dispute between Greece and Turkey and relating to acts carried out by the Turkish government in the period between the signature and the ratification of the Peace Treaty of Lausanne, indicated that: …it is a principle that already with the signature of a treaty and before its entry into force, there exists for the contracting parties an obligation not to do anything that could harm the treaty by diminishing the scope of its clauses…This principle—which only amounts to a manifestation of good faith which is the basis of any law and any convention—has been applied a certain number of times in various treaties…23

References 11. In 1926, the Permanent Court of International Justice (PCIJ) had to pronounce on the issue in the Case concerning certain German interests in Polish Upper Silesia. The case dealt with the selling of goods situated in a territory before this territory fell under Polish sovereignty, transfers which took place before the entry into force of the Treaty of Versailles. From the point of view of the Polish government: …as from the signature of the treaty, the German government had to abstain from any act that would make the execution of the treaty impossible;…through its signature, it was already held not (p. 376) to transfer the property immediately, but to keep it in order to transmit it after the entry into force of the treaty.24 According to Poland, Germany could still carry out administrative acts but: ‘could no longer interfere with the substance itself of the goods that had been given up…the principle of good faith in the carrying out of obligations clearly prevents this’.25 The Court did not share the Polish position26 but nevertheless declared: ‘Germany undoubtedly retained until the actual transfer of sovereignty the right to dispose of her property, and only a misuse of this right could endow an act of alienation with the character of a breach of the Treaty’.27 Thereby, the PCIJ implicitly recognized the existence and the reality of an obligation attached to the signature of a treaty.28 However, the threshold that must be met in order to prove the violation or non-execution of the said obligation, being set through the use of the criteria ‘abus de droit’ or ‘lack of bona fides’, is very high. The signatory State enjoys a fairly large margin of discretion in terms of compliance with the treaty in question before the moment of ratification. The only possible way to claim a violation of a signed treaty is by having recourse to the theory of abuse of rights or to the disregard of the principle of good faith. These two requirements— notably abus de droit—need to be assessed to a large extent in concreto taking into account circumstances varying from one situation to another and not easily established.

References 12. As for the International Court of Justice (ICJ), it too was confronted with the issue of the effect of a State's signature of a treaty in the North Sea Continental Shelf Cases of 1969.29(p. 377) Indeed, the issue incidentally arose of whether the Federal Republic of Germany, which had signed the Geneva Convention on the Continental Shelf and which had explicitly expressed its intention to ratify it, was bound by the provisions of the said treaty, notably with respect to the principle of equidistance. The Court summarizing the parties' positions declared: The Federal Republic was one of the signatories of the Convention, but has never ratified it, and is consequently not a party. It is admitted on behalf of Denmark and the Netherlands that in these circumstances the Convention cannot, as such, be binding on the Federal Republic, in the sense of the Republic being contractually bound by it. But it is contended that the Convention, or the régime of the Convention…has become binding on the Federal Republic in another way, namely because, by conduct, by public statements and proclamations, and in other ways, the Republic has unilaterally assumed the obligations of the Convention; or has manifested its acceptance of the conventional régime; or has recognized it as being generally applicable to the delimitation of continental shelf areas.30 Toning down the position expressed by Denmark and the Netherlands, the Court carried on: As regards these contentions, it is clear that only a very definite, very consistent course of conduct on the part of a State in the situation of the Federal Republic could justify the Court in upholding them; and, if this had existed—that is to say if there had been a real intention to manifest acceptance or recognition of the applicability of the

conventional regime—then it must be asked why it was that the Federal Republic did not take the obvious step of giving expression to this readiness by simply ratifying the Convention.31 And with respect to the general scope of the ratification, the Court warned: In principle, when a number of States, including the one whose conduct is invoked, and those invoking it, have drawn up a convention specifically providing for a particular method by which the intention to become bound by the régime of the convention is to be manifested—namely by the carrying out of certain prescribed formalities (ratification, accession), it is not lightly to be presumed that a State which has not carried out these formalities, though at all times fully able and entitled to do so, has nevertheless somehow become bound in another way. Indeed if it were a question not of obligation but of rights, if, that is to say, a State which, though entitled to do so, had not ratified or acceded, attempted to claim rights under the convention, on the basis of a declared willingness to be bound by it, or of conduct evincing acceptance of the conventional régime, it would simply be told that, not having become a party to the convention it could not claim any rights under it until the professed willingness and acceptance had been manifested in the prescribed form.… The dangers of the doctrine here advanced by Denmark and the Netherlands, if it had to be given general application in the international law field, hardly need stressing.32 In his Dissenting Opinion, Judge Morelli held contrary to the Court that Germany's signature of the Geneva Convention on the Continental Shelf of 1958 meant that, to a certain extent, it recognized the legal nature of its provisions.33

References (p. 378) 13. Some judgments in national courts confirm the existence in general international law of the obligation formulated in Article 18(a) of the Vienna Convention. In the case Polish State Treasury v Von Bismarck of 1923, the Polish Supreme Court held that the transfer of property between the signature and the ratification of the Treaty of Versailles was legally inadmissible. According to the Polish court: The transfer of property to the defendant having taken place after the signing of the Peace Treaty of Versailles, such an action is contrary to the stipulations and the spirit of the said Treaty, and the act transferring the property was therefore void.34 The same court was also confronted with a problem in relation to a treaty between Poland and Czechoslovakia regulating legal and financial questions between the two countries. According to the court: It would not be in accordance with the principles of equity…if a Czech national in the period during which only the exchange of ratifications is being awaited were denied the advantage of the valorisation stipulations under the rules of the Convention…35 Furthermore, in 1956 the Supreme Court of Austria had to deal with a dispute related to a directive issued by the Authority of the Soviet Government between the signature and the ratification of the Austrian-Soviet Peace Treaty.36 According to the Austrian court, there was a violation of the principle of good faith and the directive was therefore invalid. The precise object of the peace treaty was the restoration of Austria's autonomy and the end of Soviet power. Recognition of the Soviet directive's legality in the time between signature and ratification would have been contrary to the treaty's object.37 Two decades later, a Dutch tribunal also had to deal with the legal effect of the signature on a public authority. In this case, a woman was refused the right to be registered as someone seeking accommodation according to a municipal law, whereas her husband was not. The tribunal's president, referring to the International Covenants on Economic, Social and Cultural as well as on Civil and Political Rights, signed but not ratified by the Netherlands, declared: Although the Netherlands has not, as yet, ratified the Covenants, we are of the opinion that current legal views in the Netherlands suggest that in establishing directives implementing statutory (p. 379) regulations, the public authority may not place impediments in the way of the citizen on the sole ground of his or her sex.38 Upon reading that last decision, one could be tempted to conclude that, from the moment of the signature, a ‘legitimate expectation’ arises in favour of the addressees of future legislative, administrative, or judicial acts of authorities that these acts will be in conformity with the treaty signed but not yet ratified by a State.

References 14. Nonetheless, any conclusion at this stage would be premature. The decoding of the preparatory work within the ILC and the conference of the plenipotentiaries reveals other ways of assessing the customary or non-customary nature of Article 18. Even if, at the start of its work, the ILC showed a certain degree of hostility towards the introduction of such an obligation, it later showed greater openness to it. Brierly, first Special Rapporteur on the matter, had in 1951 envisaged a draft Article stipulating that: Under some circumstances…good faith may require that pending the entry into force of the treaty, the State shall, for a reasonable time after signature, refrain from taking action which would render performance by any party of the obligations stipulated 39

impossible or more difficult.39 However, it was important to him to note that it was much more a moral than a legal obligation and that it was consequently not necessary to mention it in a provision of the draft. Despite the opposition of some members of the ILC who were of the opinion that there was a veritable rule of international law, the majority voted in favour of the deletion of the clause. 15. The following work on Article 18(a) reflected a gradual change in position. In his draft of 1953, Sir Hersch Lauterpacht, second Special Rapporteur, reintroduced in somewhat different terms the deleted clause. According to his draft, the State was obliged ‘to refrain, prior to ratification, from any act intended substantially to impair the value of the undertaking as signed’.40 The third Special Rapporteur, Sir Gerald Fitzmaurice, followed the same logic, though his proposal was put in more cautious terms: Signature may involve an obligation for the government of the signatory state, pending a final decision about ratification, or during a reasonable period, not to take any action calculated to impair or prejudice the objects of the treaty.41 16. Nevertheless, only after the report of Sir Humphrey Waldock did the ILC begin to study the problem seriously. Waldock's draft Article stipulated: The signatory state, during the period before it shall have notified to the other States concerned its decision in regard to the ratification or acceptance of the treaty or, failing any of such notification, during a reasonable period, shall be under an obligation in good faith to refrain from any action calculated to frustrate the objects of the treaty or to impair its eventual performance.42 The ILC was, as a whole, favourable to this proposal. It underlined the importance of good faith at the conclusion of a treaty. Moreover, in response to a counter-proposal of Castrén, according to which the State's responsibility would only have been able to arise after the ratification of the treaty, it was argued that the obligation to refrain did not result (p. 380) from the treaty itself but from general international law, which attributes this legal effect to signature independently of any ratification.43 Likewise, the comments made by some States did not reveal any real reluctance regarding the obligation resulting from Article 18(a).44 To the contrary, some governments, such as that of the United States, even went so far as to state in their comments to the ILC draft provisions containing the obligation that they regarded them as ‘reflecting generally accepted norms of international law’ and considered them a ‘desirable improvement in the law’.45 The main point of disagreement between the governments and the Commission concerned the obligation to refrain from acts capable of defeating the object of a treaty during its negotiation. 17. This issue came up again during the Vienna Conference. Only a small number of States were in favour of the provision's deletion in its entirety.46 The majority of States intervening in the debates did not mention the inapplicability or the inexpedience of Article 18 with respect to the legal effect and the opposability of the signature of a treaty. Indeed, on the contrary, a number of States recalled, as during the discussion of the ILC draft, that this provision ‘conformed to general rules of international law’,47 or that it constituted ‘progressive development of international law’,48 or even that it ‘stated rules of law’.49 Although different, these formulations recognize a certain operative and compulsory nature in Article 18. The other comments centred on editorial issues. 18. It follows from the preparatory work that Article 18(a) of the Vienna Convention did not find its way into the corpus of the law of treaties out of nowhere. Despite the fact that international practice and jurisprudence have often confined its application to the specific area of peace treaties and that legal scholarship is not unanimous on the scope of the rule, it was considered worthy of inclusion in the Vienna Convention. In this context, Article 18 could not be assimilated to a simple rule ‘dérogatoire au droit commun’,50 and even less be considered an ‘error’51 in the Vienna Convention. The preparatory work of the Vienna Convention of 1986 on the Law of Treaties between States and International Organizations or between International Organizations was characterized, as much at the ILC as at the conference of the United Nations, by the absence of comments and even of a thoroughgoing examination of Article 18. Moreover, this Article was adopted without voting. This transposition of the rule of 1969 into the Convention of 1986 indicates a repetition of the rule. Thus, although the rule was taken up only in a limited number of conventions—but, for that matter, which provisions of the Vienna Convention could boast about being cited often and explicitly in international agreements?—an a priori case can be made that the first constituent element of international custom has been satisfied. (p. 381) 19. What about an opinio juris for this rule? The absence of a thorough examination and even the absence of objections from States at Conference indicate an acceptance of the obligation set down in Article 18(a) of the Vienna Convention as an integral part of the law of treaties. 20. State behaviour following the adoption and the entry into force of the Vienna Convention confirms in many regards the legal relevance of Article 18(a). In 1977, the legal department of the Canadian government considered with respect to the Reciprocal Fisheries Agreement of 24 February 1977, signed but not ratified by the United States: It should be remembered that in any case a State which has signed a treaty is obliged to refrain from acts which would defeat the object and purpose of the treaty until it shall have made its intentions clear not to become party to the treaty.52 Likewise, the Dutch government, responding to a written inquiry by members of parliament on the issue of the relation between signature and parliamentary acceptance of a treaty, argued

that: Considering the generally recognised principle of international law, that by signing an agreement a State undertakes to refrain from any act contrary to it…the Government wishes to assess the consequences of participation before signing the agreement.53 The Department of International Public Law of the Swiss government similarly declared: The period that runs from the conclusion and the entry into force of the treaty has legal significance in the sense that the State that has signed the treaty…must abstain from acts that would deprive a treaty from its object and purpose.54 Other declarations, notably made by the United States55 and the former USSR,56 confirmed the existence of an obligation under general international law to refrain from acts that would defeat the object and purpose of a treaty between signature and ratification. Yet, the actual position of States often varies from one case to another. For instance, the (p. 382) United Nations Convention on the Law of the Sea (UNCLOS), particularly in its Part XI, illustrates the limits that Article 18 of the Vienna Convention can be faced with. In fact, certain signatory States, notably France, the former USSR, and Japan, adopted laws on the exploitation of the seabed which came very close to the ones of States that were not signatories, in this case the United States,57 Great Britain, and the Federal Republic of Germany.58 The problem was that the laws that the signatory States had adopted ran partially counter to the object and purpose of UNCLOS and its Part XI.59 Yet, after the revision in 1994 of Part XI of UNCLOS by an agreement contained in Resolution 48/263 of the UN General Assembly, the obligation in Article 18 of the Vienna Convention was taken up in paragraph 6 of the resolution requiring States ‘which consent to the adoption of the Agreement to refrain from any act which would defeat its object and purpose’.60 This being so, the frequency of signatory States' compliance or non-compliance with the obligation to refrain in Article 18 in no way prejudges the existence of the obligation. If not, what can be said on the ratification of treaties that is rarely —if ever—accompanied by the application of the said treaties and which does not, despite this, taint in any way the existence of the legal obligation that it implies?

References 21. The analysis shows that Article 18 reflects a principle of international law to which States consider themselves bound either by an obligation following from the signature of a treaty or by an existing obligation in general international law independently of any (p. 383) signature or ratification of a legal instrument. It is, however, true that the outlines of the principle are not yet well-defined.

B. Problems of interpretation 22. The content of Article 18 of the Vienna Convention reveals the conceptual subtleties in the notions upon which the normative architecture of this provision is built. Even though the lexical and semantic matrix of Article 18 seems to provide prima facie a clear description of the provision, these subtleties actually lead to a blurring of the contours of the notions used. This is true for: (1) the notion of the object and purpose of a treaty and also for (2) the notion of the signature mentioned in paragraph (a) of Article 18.

The notions of ‘object’ and ‘purpose’ of a treaty 23. The obligations contained in Article 18 of the Vienna Convention apply ratione materiæ to the object and purpose of a treaty. In fact, the Article provides: ‘A State is obliged to refrain from acts which would defeat the object and purpose of a treaty’. The obligation to refrain lasts from the time of signature until that of ratification as well as from the time of ratification until the entry into force of the treaty.

Relevant acts 24. Which acts are concretely referred to? Some examples of potential acts that could be taken before the entry into force of a treaty and affect or vitiate the purpose of the regime have been formulated. Sir Humphrey Waldock gave the example of: …a State which, during negotiations concerning the limit of territorial waters, undertaken in connexion with the exploitation of mineral resources, exhausted the reserves whose existence had been the original reason for the negotiations.61 With respect to the Statute of the International Criminal Court (ICC), it was underscored that it would be contrary to the object and purpose of the Statute if signatory States concluded bilateral agreements with the United States in order to prevent US military staff being pursued under ICC jurisdiction:62 The [European] Commission has concluded that the signatories to the ICC would violate the treaty if they signed bilateral accords with Washington exempting US personnel from being handed over to the court for prosecution over alleged war crimes.63

The scope of the expression ‘object and purpose’ 25. The notions of object and purpose constitute a fundamental basis of the law of treaties. They can be found in several provisions of the Vienna Convention which notably deal with the 64

issues of reservations and interpretation.64 International jurisprudence also (p. 384) refers to these two notions when interpreting treaties in conformity with the ‘spirit’,65 ‘the object’, or the ‘purpose’66 of the treaties. It is in this context that the obligation set out in Article 18 of the Vienna Convention finds all its meaning. In fact, it is logical to require that, on the one hand, the formulation of reservations or the interpretation of a treaty be compatible with the object and the purpose of a treaty and that, on the other hand, a State having signed or ratified a treaty should not defeat its object and purpose. Article 18 of the Vienna Convention also steps in before the procedure of implementation and the interpretation of a treaty. In a way, it corresponds a priori with a sort of control on the scope, the nature, and the content of the object and purpose of a treaty.67 Determining the limits of the object and the purpose of a treaty in this way for the application of Article 18 could a posteriori facilitate the determination of the scope of compatibility or validity of reservations68 and of interpretations of a treaty.69 However, the complexity inherent in the notions of object and purpose makes the control of a State's compliance with Article 18 delicate. Therefore, the complementarity between Article 18 and the rules of the Vienna Convention with respect to reservations appears to be fundamental.

References (p. 385) 26. One should bear in mind that in the ILC draft on the law of treaties, the notion of purpose was not explicitly included in the wording of Article 18. Article 15 (the equivalent of Art. 18 according to the former numbering) of the ILC draft submitted to the United Nations Conference on the Law of Treaties simply stated: ‘A State is obliged to refrain from acts tending to frustrate the object of a proposed treaty’.70 27. At the Conference, some States placed emphasis on this editorial problem.71 The threshold set by this formulation for a violation was judged too high. The expression borrowed from English law (‘acts tending to frustrate the object of a proposed treaty’) meant according to Sir Humphrey Waldock that ‘the treaty was rendered meaningless by such acts and lost its object’.72 Several States favoured a formulation that would prevent any risk of frustration, as minimal as such an impact might be, of the object and purpose of a treaty. The Republic of Vietnam brought forward an amendment in this sense: ‘States [are] under an obligation not to frustrate, distort or restrict the object of a treaty prior to its entry into force’.73 Finally, the formulation retained in Article 18 is the one according to which States have to refrain from acts that would ‘defeat’ the object and purpose of a treaty.74 28. The introduction of the notion of purpose in Article 18 was therefore not simply a ‘stylistic tool’ or phraseology designed to be legally elegant.75 In addition to preserving unity of form in the drafting of the Vienna Convention, the inclusion of purpose principally aims at demarcating the difference between the notions of purpose and object—a difference that must not be interpreted in the sense of autonomy or in the sense of indifference between the two notions, but rather in the sense of complementarity in the assessment of the compliance with the obligation imposed by Article 18.76 In other words, the term ‘and’ between the two notions is not superfluous77 and (p. 386) legally stands for the obligation of a State both to comply with the object and with the purpose of a treaty.78

References 29. Given that they are often confused, the difficulty resides in the precise characterization of what constitutes each of the notions. The expression ‘object and purpose’ was used by the ICJ in its Advisory Opinion on the Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide. According to the Court, the expression seems to mean ‘what is essential to the object of the Convention’, in the sense that, if this purpose was not met, ‘the Convention itself would be impaired both in its principle and its application’.79

References 30. Likewise, it is interesting to note one of the claims made by Guinea-Bissau in the case on the Delimitation of the Maritime Boundary between Guinea and Guinea-Bissau. According to Guinea-Bissau, the object had to be distinguished from the purpose in the interpretation of the French-Portuguese Agreement of 1886. In that State's opinion, the purpose of the agreement was delimitation and its object was the respective possessions of the two States.80

References 31. In spite of its utility, this way of reading object and purpose provides neither notion with sufficient substance. The obligation in Article 18 of the Vienna Convention finds itself confronted by the difficulty of how to objectify the notions of object and purpose.81(p. 387) This difficulty can reduce the effectiveness and efficiency of Article 18 and consequently exacerbate arguments between signatory States.82

References 32. A look at the general theory of the law of obligations helps to refine the contours of this definition. According to this theory, the purpose or the ‘reason’ of an agreement designates the objective or the end pursued by that agreement. The object of an agreement is defined as ‘l'ensemble des droits et des obligations que le contrat [ou la convention] est destiné à faire naître’,83 or more precisely, ‘l'opération juridique que les parties à une convention cherchent à 84

réaliser’.84 33. From these two definitions it seems clear that the notions of object and purpose require different criteria. The purpose reflects a ‘functional criterion’ in the sense that it emphasizes the finality pursued by a treaty. The object appeals to a ‘material criterion’ centred on the body of norms that has to be established in order to realize the objective pursued by a treaty. Therefore, the object and the purpose of a treaty are two complementary and interdependent elements. As explained by Jean-Paul Jacqué: The object of an act lies in the rights and obligations to which it gives rise. The object of an act is thus the norm that it creates. When the Court wants to define the object of a treaty, it analyses its content, that is to say the obligations that it creates that the parties have, and the rights that it confers on them. If the object of an act is always a norm, then every act is characterised by the content of the norm that it creates. Nevertheless, the rights and obligations created by the act do not constitute an aim in themselves. They are only the means to achieve a given result. And it is the result that forms, for the author or authors of the act, the purpose that is sought.85 34. An objective approach has been proposed86 in order to specify more clearly the object and purpose of a treaty.87 This essentially consists in identifying the object and (p. 388) the purpose in the preamble of a treaty,88 in its title,89 and in the preparatory work as well as in the provisions of a treaty.90 These different elements of assessment should be added together in order to guarantee that the object and purpose are objectified in the most perfect way. As it is demonstrated by Isabelle Buffard and Karl Zemanek: If one wishes to escape the vicious circle, a two-stage procedure may help. In a first stage, a prima facie assumption of the object and purpose of a treaty must be formed by having recourse to the title, preamble and, if available, programmatic Articles of the treaty.91 This assumption must then be tested in a second stage against the text of the treaty and all other available material and, if necessary, (p. 389) adjusted in the light of that test.92 The result of that process can then be used as a guideline in the interpretation of other treaty provisions or for assessing compliance with them.93

References 35. In certain areas of international law, one can picture an objective approach when investigating the object and the purpose of a treaty by referring to other agreements. In international environmental law, for instance, one of the techniques used is the negotiation of framework conventions. This type of convention aims at establishing guiding principles on the matter of environmental protection and at creating institutions. The principles are designed to be addressed subsequently by more detailed rules in protocols and sometimes even in annexes to these instruments.94 A State having ratified a framework convention would oblige itself by virtue of Article 18 not to defeat the object and purpose not only of the said convention but also of the protocols and other instruments attached to the convention. In fact, the latter instruments aim at reinforcing and guaranteeing the continuity of the object and the purpose emerging from the framework convention. Such a conclusion is, for example, supported by the Vienna Convention for the Protection of the Ozone Layer of 22 March 1985 pursuant to which ‘[a] State or a regional economic integration organization may not become a party to a protocol unless it is, or becomes at the same time, a Party to the convention’.95 It follows from this provision that the expression of consent to be bound by a protocol of the Vienna Convention for the Protection of the Ozone Layer itself already obliges the State concerned to be likewise bound by the said convention. If the convention has not yet entered into force, one should consider that by virtue of Article 18(b) of the Vienna Convention, a State can defeat the object and purpose of neither the framework convention nor an additional protocol because these different instruments form a legal unity.

References 36. Likewise, in international labour law the adoption by the ILO of conventions according to the constitution aim at building up within member States ‘truly human labor systems’ on which social justice essential for universal and durable peace is based. In order to achieve such an objective—that is the implementation of these conventions on the national level—the system developed prevents any step backwards. In this sense, the constitution of the ILO provides that it is not allowed to interpret the purpose and object of an international convention as giving member States the right—at the moment of the adoption of the convention by the ILO or at the moment of its ratification by a State—to diminish or impinge upon more favourable provisions that already exist with respect to (p. 390) the law or the national practice.96 At least two observations can be made in relation to this provision. At first, it would seem that the provision does not oblige States to maintain a higher level of protection than the one stipulated in the convention.97 Nevertheless—and this is the second point—this provision has to be read in the light of a more general principle, ‘à savoir que les conventions internationales du travail fixent des normes minima’ and ‘les Etats peuvent à tout moment accorder des conditions plus favorables que celles qui sont prévues par les conventions qu'ils ont ratifiées’.98 In this respect, it was pointed out in the context of international labour conventions that: once measures have been taken and a certain level of protection against discrimination has thus been achieved, the existing system of protection cannot be dismantled unless its repeal is accompanied by the adoption of an alternative system that increases, rather than reduces, the overall protection afforded.99

37. It can, however, be observed in practice that the identification of the different elements used objectively to determine the purpose and the object of a treaty are not systematically followed. The ICJ itself does not clearly specify in its decisions how it has proceeded to identify the object and the purpose of the treaties in question. It seems that it leans on its intuition or a sort of inner conviction.100 It even accepted in certain circumstances the possibility that there may be a multitude of objects and purposes.101

References 38. The legal difficulties posed by the interpretation of the notion of signature are not of the same magnitude as those posed by the notions of object and purpose of a treaty. However, the notion of signature also calls for conceptual clarification.

The concept of signature 39. The signature establishes the scope of application ratione temporis of Article 18 of the Vienna Convention. In other words, the act of signing a treaty indicates the instant at which the signatory State is in principle first obliged to refrain from acts that would defeat the object and purpose of the treaty. However, signing a treaty is not the only way for a State to show that it intends to become a party thereto. In the case of a multilateral treaty, (p. 391) an exchange of notes or other instruments can also signal such intent. The Conference modified Article 18 accordingly: ‘when: (a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval’.102 40. ‘Signature’, as it is understood in the legal sense in Article 18 of the Vienna Convention, calls for conceptual clarification. Because the term refers to closely related mechanisms that may be difficult to distinguish from each other, it appears to be ‘monochromatic’. First, signature has a different effect depending on whether the treaty is multilateral or bilateral. Multilateral treaties are signed after the text has been voted on and adopted by the diplomatic conference or international organization plenary body.103 Bilateral treaties, on the other hand, tend to be approved and authenticated by a single act: signature.104 41. Furthermore, Article 18 sets signature apart from the other forms of consent to be bound provided for in the Vienna Convention. Under Article 10 of the Convention, ‘initialling’ and ‘signature ad referendum’ (deferred signature) may also be used. ‘Initialling’ consists in affixing the negotiators' initials, and ‘signature ad referendum’ is conditional on confirmation by the competent authorities. Both techniques, like ‘signature’, serve definitively to establish the text of the treaty ne varietur and to authenticate it. 42. The question is whether the obligation to refrain from acts that would defeat the object and purpose of the treaty is binding on a State that has merely initialled the treaty or signed it ad referendum. Under the terms of Article 10 of the Vienna Convention, the two techniques have a provisional effect and are subject to subsequent confirmation. The signature referred to in Article 18 is a final signature. The final character of such signature is defined ratione personae or in accordance with an organic criterion in that it depends on the capacity of an authority (a person) to engage the State by virtue of the powers conferred on it (him or her).105 Initials and deferred signature are useful specifically because the negotiator or plenipotentiary is not authorized to sign but can lend the treaty special solemnity while reserving final signature for a hierarchically superior political authority. 43. Another difficulty is that today, in the case of many multilateral international treaties, States sign the final act and the treaty remains open for signature and ratification by a certain deadline. Once the deadline has passed, States can accede to the treaty. Thus, a State is obliged to refrain from acts that would defeat the object and purpose of the treaty if it signs the treaty but not if it does not sign the treaty and reserves the right to accede to it at a later date.106 44. In some cases, however, States will sign a treaty because in so doing they obtain the right to participate in other deliberations liable to affect its object and purpose. Such was the case, for example, of the Statute of the ICC, which was adopted in Rome in July 1998. The Final Act of the Conference that produced the Statute provided for the establishment of a preparatory commission, one of the tasks of which was to draw up tangible (p. 392) proposals on the practical steps that had to be taken before the Court could be established and become operational.107 Those steps included the preparation of draft rules of procedure and evidence and the definition of the elements of the crimes falling under the Court's jurisdiction. The preparatory committee was made up inter alia of representatives of the States that had signed the Final Act.108 Obviously, its deliberations were liable to affect (or at the very least to help to specify) the object and purpose of the Court and consequently the Court's future work. This technique could be used both to encourage States to sign the treaty and thus be able to contribute to the system's configuration and to prevent them from acting to defeat the object and purpose of the treaty without incurring international responsibility.

Clarification of the system for accepting treaties The variability of acceptance 45. Article 18 of the Vienna Convention is of interest chiefly because it offers States a twostep process for accepting treaties. Paragraph (a) refers to temporary or ‘provisional’109 acceptance by signature. This does not mean that the signatory State undertakes to apply the treaty domestically but rather presumes its willingness objectively to analyse the conditions under which it could commit itself and to gauge its capacity to do so. This, as explained supra,

is the system used by ILO when it asks its member States to submit to their competent authorities the texts of adopted conventions with a view to engaging in a national debate on whether it would be appropriate to ratify them.110 Article 18(a) of the Vienna Convention obliges the signatory State to refrain from acts that would defeat the object and purpose of the treaty during this period of consultation. What is not certain is who can require performance of this obligation. Any party to the Vienna Convention? States with whom separate treaties will subsequently be concluded? In the latter hypothesis, are the States concerned those that have also signed pending acceptance, ratification, or approval, or those that have already ratified, accepted, or approved the treaty?111 The Vienna Convention does not specifically answer these questions.

References 46. Article 18(b) of the Vienna Convention provides for final acceptance in the form of expression of consent to be bound. Once such consent has been given, the State becomes a party to the treaty. It is obliged to refrain from defeating the object and purpose of the treaty until such time as the treaty enters into force. This situation is entirely different from that of provisional acceptance because the State has consented to be bound. More and more multilateral treaties do not enter into force until a certain number of ratifications and accessions has been obtained. It therefore seems normal for States that have expressed consent to be bound by the treaty to refrain from acts that could defeat its object and purpose before it enters into force. When the members of the ILC discussed this rule, following Sir H. Waldock's report that ratification made the State a ‘virtual party to the treaty’, they did not question the existence of this obligation.112 Some authors (p. 393) considered the possibility that the State would engage in acts to defeat the object and purpose of the treaty during the period between its expression of consent to be bound and the treaty's entry into force as so remote that they did not think it needed to be mentioned in the Vienna Convention.113 Yet the Vienna Convention does not seem to have covered all possible contingencies in this respect. Indeed, Article 18(b) raises a major issue: the possibility of withdrawing consent to be bound. The issue is particularly acute when the treaty can be denounced.114 As Mr Yasseen pointed out to the ILC, if a State can withdraw after entry into force, it should a fortiori be able to do so before. The ILC did not dwell on the matter, however. The situation creates a de facto legal vacuum that is one of the advantages (or liabilities) of Article 18 of the Vienna Convention.

The limits ratione temporis of acceptance 47. Article 18 of the Vienna Convention does not make the obligation to refrain an obligation ad infinitum. The right of the State to withdraw is expressly provided for both after signature and after expression of consent to be bound.

Withdrawal after signature 48. Under the terms of Article 18(a), the State is obliged to refrain ‘until it shall have made its intention clear not to become a party to the treaty’. This limit raises two points of legal uncertainty. 49. The first results from a hypothesis put forward by the French delegation at the Vienna Conference in support of its concerns about the wording of Article 18(a), namely that ‘[t]he most obvious way for a State to make clear its intention not to become a party to the treaty was for it to frustrate the object of the treaty’.115 That position appears, a priori, to ignore the principle of good faith in international relations116 and could be contrary to the general principle of law according to which ‘no one may invoke his own turpitude’. 50. The second point of uncertainty is that Article 18(a) does not specify how the signatory State is to show that it does not intend to be bound by the treaty. Would a diplomatic note or a declaration by the minister of foreign affairs to parliament suffice?117 In addition, it has been said that: ‘des raisons politiques très légitimes peuvent interdire [à l'Etat] une manifestation d'intention autre que discrète, lui commander de se borner à garder le silence’.118 Article 18 is silent on this point, indicating that how such intent is manifested is determined on a case-bycase basis and in the light of each State's circumstances. 51. In his Dissenting Opinion in the North Sea Continental Shelf Cases, Judge Lachs—unlike the Court, which remained silent on that point—was adamant that ‘demonstrating the intent not to be bound by a treaty’ was a condition that, if not met, implied obligations for the signatory State. According to him: The Federal Republic of Germany signed the Convention on the Continental Shelf… This fact…cannot remain without influence on that State's relationship to the Convention. Admittedly it does (p. 394) not imply an obligation to ratify the instrument, nor is it in itself sufficient to bind the Federal Republic to observance of its provisions. However, it certainly implies a link between the State concerned and the treaty to which it is not as yet a Party.…[A]t no time did the Federal Republic make a statement which could be interpreted as a repudiation of the Convention or the abandonment of its intention to ratify it.…As long as this ratification has not been forthcoming, the Federal Republic cannot be considered as a party to the Convention. The Government may have changed its view, as governments do; parliament may eventually refuse ratification. However, the act of signature has to be viewed in the context of other voluntary and positive acts of the Federal Republic in this domain.119 Judge Lachs then proceeded to describe and analyse German government acts that, according to him, expressed its intent to be bound by the Convention on the Continental Shelf once it had

been signed. One of those acts was the proclamation of 22 January 1964 in which the Federal Republic of Germany declared inter alia that it: …will shortly submit to the Legislature an Accession Bill on this Convention in order to create the constitutional basis for ratification by the Federal Republic of Germany…In order to eliminate legal uncertainties that might arise in the present situation until the Geneva Convention on the Continental Shelf comes into force and until its ratification by the Federal Republic of Germany, the Federal Government deems it necessary to affirm the following now: 1. In virtue of the development of general international law, as expressed in recent State practice and in particular in the signing of the Geneva Convention on the Continental Shelf, the Federal Government regards the exploration and exploitation of the natural resources of the seabed and subsoil of the submarine areas adjacent to the German Coast but outside the German territorial sea, to a depth of 200 metres and also—so far as the depth of the superjacent waters admits of the exploitation of the natural resources—beyond that, as an exclusive sovereign right of the Federal Republic of Germany.120 Judge Lachs's interpretation of the acts of the German Federal Government and their effect on the legal value of the signature of the Convention on the Continental Shelf is irrefutable: The Proclamation of the Federal Government of 22 January 1964 refers, then, to ‘the development of general international law, as expressed in recent State practice and in particular in the signing of the Geneva Convention on the Continental Shelf’. Here an opinion is expressed as to the character and scope of the law on the continental shelf. It constitutes in fact a value-judgment on the state of the law on the subject. Indeed it is emphatically implied that the mere signing of that instrument, at a time when it had not yet entered into force, was evidence of general international law. The Federal Republic viewed its own signature as a constituent element of that evidence, thus attaching to it far more importance than is normal in the case of signatures to instruments requiring ratification. If words have any meaning, these could be understood solely as the recognition by the Federal Republic that the Geneva Convention reflected general international law.121 Declarations could therefore constitute a perfect means of demonstrating intent to be or not to be bound by a treaty122 or to recognize norms that are not just part of the treaty but (p. 395) in fact also express general international law. However, a State that would like its declaration to be accepted as expressing its intent not to be bound must in turn and in good faith concede that a declaration expressing intent to be bound subjects it to the obligation not to defeat the object and purpose of the treaty prior to ratification. The convincing probative strength of such documents is hard to contest. As Judge Lachs also recalled: States may obviously change their intentions, conduct and policy, but it would seriously undermine the worth of and reliance upon statements made by governments if value-judgments of so important a nature were disregarded or held as not binding upon the governments which made them.123 Before him, the ICJ, ruling in the Fisheries case, had considered that ‘[l]anguage of this kind [declarations] can only be considered as the considered expression of a legal conception’.124

References 52. In no case is silence deemed to signal rejection of the treaty in question. Article 18 presumes acceptance of a signed treaty, and that presumption can only be reversed by express evidence of the contrary: the declaration of the intent not to ratify the treaty in question. Accepting silence is tantamount to creating a loophole ratione temporis. Indeed, time should not serve as an excuse for a signatory State to impugn the object and purpose of a treaty. It is difficult objectively to decide when the signatory State can start to consider that it is no longer bound by the obligation set out in Article 18 and practice has shown that signatory States can take a long time to ratify a treaty.125

References 53. This point of view is reflected in the position adopted by the United States on the Rome Statute of the ICC. On 6 May 2002, the United States announced that it did not intend to be bound by the Rome Statute, which it had signed on 31 December 2000. The Bush Administration, in the person of the Assistant Secretary of State for Arms Control and International Affairs, sent a letter to the UN Secretary-General stating that the United States had no intention of becoming party to the Statute126 and therefore (p. 396) considered that no legal obligation had arisen from its signature of over one year earlier. That declaration may reflect US fears that silence might make it possible to charge that some of the steps it had taken since the date of signature defeated the object and purpose of the Statute and therefore contravened the obligation set out in Article 18(a) of the Vienna Convention.

References

Withdrawal of consent to be bound once expressed 54. Regarding consent to be bound by a treaty, Article 18(b) provides that the State is obliged to refrain from acts which would defeat the object and purpose of a treaty when it has expressed its consent to be bound by the treaty, ‘pending the entry into force of the treaty and

provided that such entry into force is not unduly delayed’. Here, legal uncertainty resides chiefly in the duration of the obligation to refrain. This is why, during the Vienna Conference, an amendment sponsored jointly by Argentina, Ecuador, and Uruguay proposed to set a limit of 12 months.127 The ILC, for its part, proposed a period of ten months before agreeing that a ‘reasonable time’ should be allowed to elapse before the obligation to refrain was extinguished. Others were strongly critical of the criterion of delay in Article 18(b). According to Mr Nisot: It is not extraordinary that more than a year goes by between the close of negotiations of a treaty and its enry into force. In the meantime, the State that has ratified, accepted or approved finds itself under an obligation the real extent and duration of which it does not know because of paragraph b) of Article 18. It suffers from its zeal.128 (p. 397) The uncertainty characterizing Article 18(b) appears to indicate that assessing the undue nature of the delay falls for the most part to each State.

C. Legal effects of Article 18(a) 55. Article 18(b) of the Vienna Convention is seen in some quarters as a legal tautology. Indeed, who would dare contest the validity of the obligation not to defeat the purpose and object of a treaty, or its character as a rule of international customary law, once consent to be bound by said treaty has been expressed. Some authors therefore considered it pointless to include such a provision in the Vienna Convention. Their opinion must be seen in the light of the legal problems relating to the question of definitive acceptance of a treaty, but it is in many respects true that it is the interpretation of Article 18(a) of the Convention that poses problems. Both the value of the ensuing obligation and the sanctions for violations of Article 18(a) stumble at any attempt at legal systematization.

On the reality of the obligation 56. Article 18(a) of the Vienna Convention is not a lawless tending to deprive the Article of meaning. Even less is it an area of counter-law that roils or ‘distances itself from common international law’129 on treaties. It expresses a genuine concern: that the principle of good faith in international relations be well established. The obligation set forth in Article 18(a) cannot be legally isolated from the principle of good faith. In other words, recognition of good faith as a general principle of law naturally entails recognition of the rules required for its effective and efficient implementation. Article 18(a) is one of the means of implementing the principle of good faith in treaty-based relations. The introduction of that principle into the Vienna Convention makes it a genuine legal obligation as opposed to a mere moral obligation.130 57. Previously under international law, treaties were binding on the parties as soon as they were signed, because ratification was a duty and not an option.131 The following is an oft-cited example of the former doctrine relating to the effect of signature: in 1903, Colombia refused to ratify the Hay-Herran Treaty granting the United States the right to build a canal through Panama, which was then part of Colombia. The US Secretary of State Hay wrote as follows to General Reyes: The two Governments, in agreeing to the treaty through their duly authorized representatives, bind themselves, pending its ratification, not only not to oppose its consummation, but also to do nothing in contravention of its terms.132 (p. 398) 58. This concept was based on two dominant theories: on the one hand, the theory of the private law mandate that postulated the obligation to ratify;133 on the other hand, the theory of the retroactive effect of ratification by virtue of which signature was an ordinary source of obligations in the sense that ‘the treaty was binding as soon as it had been signed because of a kind of resolutive condition that was tantamount to ratification’.134

References 59. Article 18 of the Vienna Convention clearly distinguishes between signature and ratification. De jure and de facto, signature is independent and gives rise to one or more specific obligations. 60. Signing a treaty gives rise to a legal obligation to act under the terms of Article 18 of the Vienna Convention. At the level of international relations, it is true, the scope of the obligation is harder to define. Under the terms of Article 18, the ‘State is obliged to refrain’. As JeanPierre Cot puts it, ‘governments are not asked to take positive action’.135 61. This obligation to refrain had been highlighted in the Iloilo case. Between the time the treaty by which Spain ceded the Philippines to the United States was signed on 10 December 1898 and its ratification, Filipino insurgents committed numerous acts harmful to British interests. US troops occupied Iloilo well after the Spanish troops had been evacuated, and were unable to stop the insurgents from burning the town to the ground. The joint AngloAmerican commission told Great Britain, which accused the US government of culpable negligence, that ‘there was no duty upon the United States under the terms of the Protocol, or of the then unratified treaty, or otherwise, to assume control at Iloilo’.136 62. This is the theory reflected in Article 18 of the Vienna Convention, which only provides for an obligation to refrain. This is regrettable in that good faith should sometimes prompt the States to act positively to uphold the object and purpose of the treaty concerned.

63. There are three major questions relating to the limits and scope of the obligation to refrain. First, is the obligation to refrain antinomic to the treaty's ‘anticipated or provisional implementation’? It would seem that by virtue of the principle of free will, the parties can decide to apply a convention before its ratification, under terms agreed by them.137 International practice contains examples of situations in which a treaty that has been signed but has not yet entered into force is provisionally implemented in order to uphold its object and purpose. The United States acted thus in respect of UNCLOS. According to the Foreign Affairs Division: (p. 399) Three years of preparatory meetings were required before the Conference could convene, and it may be necessary to hold more than one substantive negotiating session before final agreement is reached. Beyond that time, the process of national ratifications could delay implementation of the treaty even further. In the meantime, the need increases for an internationally accepted system for orderly use of the oceans…[there is a] call for the establishment of a new international order in the oceans at the earliest possible date. Accordingly, the United States has proposed that the treaty Articles on the deep seabeds and fisheries be applied provisionally without waiting until completion of the national ratification process for the ocean treaty as a whole. If the Law of the Sea Conference produces a treaty that accommodates the interests involved, provisional application could serve to settle current and incipient disputes among nations, enable international law to keep up with deep sea mining technology, and alleviate the plight of fishermen.138 US practice reflects other examples of anticipated application, such as the GATT or the agreement relating to the United Nations conference on wheat.139

References 64. These examples, which are drawn from international practice, show that Article 18 of the Vienna Convention could develop a purely preventive function tending to enable the States signatory to an international treaty, either unilaterally or as a group, to implement certain fundamental provisions thereof pending its entry into force, with a view to upholding its object and purpose. Anticipated or provisional implementation of those provisions makes it impossible to defeat the object and purpose of the treaty in question and obliges the State that does not wish to apply it provisionally clearly to demonstrate its intent not to be bound by the treaty. Far from being contradictory, Articles 18 and 25 of the Vienna Convention—the latter deals with provisional application—are in fact complementary.140 65. The second question concerns the obligation to refrain. Is that obligation compatible with the obligation to take positive measures in favour of the treaty concerned? According to R. Kolb, ‘la bonne foi n'interdit que la mise en échec de la substance d'un traité. Elle ne peut commander une action alors qu'on ne sait pas si le traité entrera jamais en vigueur’. This point of view resembles the old jurisprudence establishing the ‘abstentionist’ nature of the obligations set forth in Article 18 of the Vienna Convention. The States are thus only bound not to do anything, not to take any action. This is clear from the case of the German Reparations, in which the arbitrator approved the German position on the disposal of certain assets: (p. 400) The German government recognises that it would be contrary to good faith if after the signature, it had taken any measures to enforce German rights and interests in the hand of non-Germans. But it contests that it was obliged before the entry into force of the Treaty…to prevent and and seize the rights and interests in question.141 Diplomatic practice followed the same reasoning, as illustrated in this statement by Ambassador Richardson of the United States: International Law imposes no obligation upon a signatory to a treaty to comply with its terms prior to entry into force with respect to that signatory, other than the obligation in good faith to refrain from acts which would defeat the object and purpose of the treaty.142 66. While the principle is that, in some cases in international law, under Article 18 signature essentially gives rise to an obligation to refrain, in others it may generate an obligation to adopt positive measures in favour of the treaty concerned, if for no other reason than to guarantee the status quo in respect of the conditions that prevailed at the time the treaty was negotiated.143 The case law and diplomatic doctrine and practice cited supra in this respect appear out of sync with the developments and new challenges confronting international law, in particular as concerns the requirement of anticipation. International environmental law provides us with another example because in this field the challenge is irreversibility. Imagine, for example, a treaty that protects threatened species and combats trade in them, such as the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).144 Would a State that has signed such a treaty be justified, in the name of the obligation to refrain, in allowing the continued capture, hunting, and trade of threatened species on its national territory? In our view, no, because, by so refraining, the State signatory that has not yet manifested its intent not to be bound by the treaty de facto defeats the object and purpose thereof, which is to safeguard threatened species. If the State allows such practices to continue unchecked until the treaty is ratified, certain species may disappear and could never be restored or ‘resuscitated’ by the treaty's future entry into force. The purpose and object of the treaty would thus have been basically defeated in the name of the ‘right to refrain’. The phenomenon of irreversibility requires the State signing an international treaty to anticipate, not by applying the treaty provisionally—although that can be a solution—but rather by implementing it as such under the terms of Article 18. Refraining can require a positive action,

ie the adoption of measures aimed at ensuring the treaty's (p. 401) fundamental object and purpose are not defeated, without the State having to apply the obligations set out in the treaty to the letter.

References 67. Clearly, Article 18 could imply, both de lege lata and de lege ferenda, that signatory States are bound to take positive steps in favour of the treaty concerned. This orientation could be derived from the object and purpose of the treaty on signature. 68. The third question concerns whether the obligation to refrain goes hand in hand with the obligation to submit the signed instrument to the authorities with constitutional competence to ratify it.145 In this respect, according to the theory of Oppenheim and Lauterpacht, the obligation set forth in Article 18 obliges the State signatory at least to submit the agreement to the competent national authorities for ratification.146 The ILO Constitution predates the Vienna Convention on the Law on Treaties, but it nevertheless constitutes an interesting example of this, in that it provides a legal means of materializing the obligation for the State signatory not to defeat the object and purpose of the treaty. According to the ILO Constitution, as we have seen, the member States undertake that they will, within a specified period, bring the conventions adopted by the ILO before the authorities within whose competence the matter lies, for the enactment of legislation or other action.147 The Article of the ILO Constitution mentioned supra is clearly based on the principle of good faith, in that each member government is bound to submit the instrument in question to the competent domestic bodies for ratification. In addition, a deadline is set for informing the ILO about the outcome of that internal consultation. No member State could defeat the object and purpose of the international labour convention concerned unless it has manifested its intent not to be bound. The scope of the obligation is in fact broader in the ILO Constitution than in Article 18. 69. As soon as the ILO adopts a convention, all the member States, whether they voted in favour or not, are bound to submit it to the competent domestic authorities. The ILO Constitution and Article 18 of the Vienna Convention interact in the relationship between the obligation not to defeat the purpose or object of an international labour convention (as provides for Art. 18) and the obligation to manifest the intention to ratify or not to ratify said convention at the end of given period (as set out in the ILO Constitution). The legal vacuum created by Article 18 of the Vienna Convention on how to express intent not to become a party to the treaty and on the period during which such intent should be expressed for the purposes of legal transparency is clearly filled by the ILO Constitution. However, the ILO Constitution reveals another limit to Article 18(a) of the Vienna Convention: the fact that its scope of application is limited to the signatory (p. 402) States or to States that have exchanged instruments constituting a treaty. The interpretation of the terms of Article 18(a) hint that the mere adoption of a convention by an international conference does not give rise to a legal obligation for the State, whereas at the ILO, the adoption of a convention creates a minimal obligation for all member States. It would be reasonable to think that Article 18(a) applies de lege ferenda to all the States that voted to adopt a convention, and not only to its signatories, so as not to exclude from the Article's scope of application other forms of provisional acceptance, in particular a vote in favour at an international conference.148 This would also make it possible to consolidate the principle of good faith in international relations. The idea would be for the process of rationalization of the law of treaties to culminate in confirmation that the obligation not to defeat the object and purpose of a treaty exists as soon as the negotiations have been concluded and the treaty initialled, and to specify the form and substance of the obligation's implementing conditions. At present, this is not an impromptu but rather a lasting development of international law.

References

Sanctions for breach of the obligation 70. According to general international law, a violation of the obligation contained in Article 18(a) must be able to trigger the responsibility of the signatory State of a treaty. The line between a moral obligation—based on the assumption that Article 18(a) is a moral rule—and a legal rule is not easily drawn. However, the inclusion of a moral rule in positive national or international law confers upon this rule all characteristics and consequences of a legal rule. 71. In truth, this is not the real source of contention. One of the concerns of the ILC was, in addition to codification, the ‘progressive development of international law’. By creating a symbiotic relationship between ‘the existing’ and ‘the desirable’, between ‘the traditional’ and ‘the modern’ as these exist in the law of treaties, the goal of Article 18 clearly appears to have been the consolidation of international law. 72. With regard to sanctions for the violation of Article 18, it can be difficult to establish the responsibility of a signatory State or of a State having expressed its consent to be bound. Do acts tending to defeat the object and purpose of a treaty have to be analysed in concreto, that is, do they have to be characterized by a subjective element, intention, or bad faith? Or, on the contrary, is it sufficient to characterize the result objectively (in abstracto)? (p. 403) 73. Article 18 could enable legal uncertainties in international law applicable to treaties to be eliminated. In fact, one could explicitly—or even implicitly—refer to this provision in order to produce preventive effects, either by inducing States to sign treaties and, consequently, to oblige them not to defeat the object and purpose of these instruments, or by providing for their provisional application. Besides, one could certainly use this Article to require from States that they take specific measures between the moment of signature and the

moment of ratification. These measures could notably include the presentation of the adopted texts to the competent national authorities in order to provoke a thorough debate on the possibility of their ratification and on the obligation to report on these measures. In this way, the ground could be prepared for the obligation in Article 18. These aspects do not exhaust examination of the issue. Article 18 clearly offers, in the context of the progressive development of international law, unexplored terrain upon which the effectiveness and efficiency of international treaties may be enhanced. * ANNE-MARIE LA ROSA ** MAKANE MOÏSE MBENGUE ***

LAURENCE BOISSON DE CHAZOURNES

Footnotes: 1 Article 19(5)(b) of the ILO Constitution, available at: http://www.ilo.org/ilolex/english/constq.htm. 2 Ibid, sub-para. (d). 3 Ibid sub-para. (e). 4 Dictionnaire de la Terminologie du Droit international (Paris: Sirey, 1960), p 91. 5 YILC, 1965, vol. 1, pp 87–8. 6 See also the amendment put forward by the Swiss delegation explicitly citing the requirement of good faith in the period of a treaty's negotiation: A/CONF.39/C.1/L.112. 7 United Nations Conference on the Law of Treaties, Official Records, 1st session, Vienna, 26 March–24 May 1968 (hereinafter ‘Conference Records’), 1st session, 19th meeting, p 99. See also A/CONF.39/C.1/L.134. 8 I. Sinclair, The Vienna Convention on the Law of Treaties (2nd edn, Manchester: Manchester University Press, 1984), p 21. According to this author: It now remains to investigate whether, and if so to what extent, the convention itself may generate rules which will be accepted and recognised as customary rules of international law, notwithstanding that they do not have all the characteristics of such customary rules. 9 Unofficial translation by the editor. Original text: D'incontestables raisons morales militent, évidemment, en faveur d'une pareille attitude de l'Etat dans l'intervalle qui sépare la signature de la ratification. Mais il faut souligner que ce sont uniquement des raisons morales: juridiquement, il n'y a pas d'engagement avant la ratification. (F. Dehousse, La ratification des traités (Paris: Sirey, 1935), p 67) 10 F. Mosconi, La formazione dei trattati (Milan: Giuffrè, 1968), pp 240–50; J. Nisot, ‘L'Article 18 de la Convention de Vienne sur le droit des traités’, RBDI, 1969, pp 498–503; P. Cahier, ‘L'obligation de ne pas priver un traité de son objet et de son but avant son entrée en vigueur’ in Mélanges Fernand Dehousse, vol. I, (Brussels: Bruylant, 1979), p 31. 11 W. Morway, ‘The Obligation of a State Not to Frustrate the Object of a Treaty Prior to Its Entry Into Force’, ZaöRV, 1967, pp 451–62. 12 J. Mervyn Jones, Full Powers and Ratification (Cambridge: Cambridge University Press, 1946), pp 85–6. 13 L. Oppenheim (ed. H. Lauterpacht), International Law (8th edn, London: Longmans/Green, 1955), vol I, p 909. 14 Unofficial translation by the editor. Original text: La conclusion d'un traité comporte en réalité deux opérations distinctes : l'une est la négociation terminée par la signature, et dont l'objet est de fixer le contenu de la volonté des Etats contractants, l'autre est la ratification qui seule va créer un lien de droit entre ces Etats ou une règle obligatoire pour eux. (J. Basdevant, ‘La conclusion et la rédaction des traités et des instruments diplomatiques autres que les traités’, RCADI, 1926-V, vol. 15, p 574) 15 See in particular S. Crandall, Treaties, Their Making and Enforcement (2nd edn, Washington DC: J. Byrne, 1916), p 343; D. Anzilotti, Cours de droit international (Paris: Sirey, 1929), p 372; P. Fauchille, Traité de droit international public (Paris: Rousseau, 1926), vol. I-3, p 319. In fact, the vast majority of legal scholars recognize the existence of obligations arising from signature of an international agreement under positive international law: E. Wolgast, Völkerrecht (Berlin: Stilke, 1934), p 811; F. Wilcox, The Ratification of International Conventions (London: Allen & Unwin, 1935), p 27; B. Cheng, General Principles of Law—As Applied by International Courts and Tribunals (London: Stevens, 1953), pp 109 ff; A. D. McNair, The Law of Treaties (Oxford: Clarendon Press, 1961), pp 199 ff; D. P. O'Connell, International Law (2nd edn, London: Stevens, 1970), vol I, pp 222–3; K. Holloway, Modern Trends in Treaty Law (London: Stevens, 1967), pp 56 ff; J.-P. Cot, ‘La bonne foi et la conclusion des traités’, RBDI, 1968, pp 153 ff; T. Hassan, ‘Good Faith in Treaty Formation’, VaJIL, 1981, pp 450 ff; E. Zoller, La bonne foi en droit international public (Paris: PUF, 1977), pp 68 ff; R. Bernhardt, ‘Völkerrechtliche Bindungen in den Vorstadien des Vertragsschlusses’, ZaöRV, 1957–58, pp 682–3; M. Rogoff, ‘International Legal Obligation of Signatories to an Unratified Treaty’, Maine L Rev, 1980, pp 266 ff; G. Schwarzenberger, ‘The Fundamental Principles of International Law’, RCADI, 1955-I, vol. 87, pp 298–9; L. Oppenheim (ed. Jennings and Watts), International Law (9th edn, Harlow: Longman, 1992), pp 1238–9; H. Accioly, Traité de droit international public (Paris: Sirey, 1942), vol. II, p 445; H. Lauterpacht, International Law—

Collected Papers (Cambridge: Cambridge University Press, 1978), vol. IV, pp 152 ff; D. Carreau, Droit international (3rd edn, Paris: Sirey, 1991), p 118; A. Plantey, La négociation internationale, Principes et méthodes (Paris: CNRS Editions, 1980), p 121; M. E Viliger, Customary International Law and Treaties (Dordrecht: Martinus Nijhoff, 1985), pp 321 ff. 16 Jules Hopf, Recueil général de traités et autres actes relatifs aux rapports de droit international, 2nd series, Book X (Göttingen: Librairie de Dieterich, 1885), pp 416–18. 17 M. Hudson, International Legislation, vol. II (Washington DC: Carnegie Endowment for International Peace, 1931), p 343. 18 P. Cahier, supra n 10, p 33. 19 ‘If a peace-treaty were signed with a moral certainty of its ratification and one of the belligerents were, after this, making grants of land in a province which was to be ceded, before the final ratification, it would certainly be considered by every honest jurist a fraudulent and invalid transaction’ (J. B. Moore, History and Digest of the International Arbitrations to Which the United States has been a Party (Washington DC: Government Printing Office, 1898), vol. IV, p 3801. 20 Ibid, pp 3798–801. The Tacna-Arica case contains similar passages. According to the arbitrator for that case: it follows from what has been said that the provisions in question of the Treaty of Ancon must be regarded as still in effect unless the course of Chile in the administration of Tacna and Arica has been of such a character as to frustrate the purposes of these provisions and hence to deprive them of force…The Arbitrator finds the conclusion inescapable that the territory continued ‘subject to Chilean laws and authority’ pending the negotiations for the special protocol. The question is whether this authority has been used in such a way as to frustrate the purpose of the agreement for the plebiscite. (Protocol of Arbitration between Chile and Peru, with Supplementary Act (Tacna-Arica Question (Chile/Peru)), RIAA, vol. II, pp 934–5) 21 Ibid, pp 3805–6. Other examples can be found in arbitral decisions. In the case A. Kemeny v Yugoslav State of 1928, the arbitral tribunal considered that: the Hungarian authorities were entitled to grant to the claimant the mining rights in question. The Armistice Agreement did not have the effect of transferring sovereignty to the Yugoslav Government over the occupied territories. The Hungarian authorities in question, i.e. the Department of Mines in Budapest, continued, until the entry into force of the Treaty, to exercise the relevant rights of sovereignty over these territories. On the other hand, according to a generally recognised rule of international law, the Yugoslav Government was authorised to replace the Hungarian authorities in the occupied territory by its own officials, and even to create new organs in so far as this was necessary for safeguarding public order and the economic well-being of the territory. (Annual Digest 1927–28, vol. 4, p 550) In the case of Anaya (1868), the arbitrator considered that: upon the negociation of a treaty of peace it is customary to agree upon a suspension of hostilities, and even without it the good feeling of the belligerents would impress them with the expediency of suspending hostilities; but the treaty itself, unless it should expressely so declare it, does not necessarily and of right involve a suspension of hostilities. (J. B. Moore, supra n 19, p 3804) Some authors consider these two cases salient for the discussion of the legal significance of the signature (W. Morway, supra n 11, p 456, fn 13; L. Oppenheim, supra n 15, p 1239, fn 7). 22 Unofficial translation by the editor. Original text: ‘le Gouvernement allemand a reconnu que ce serait contraire à la bonne foi si après la signature, il avait pris des mesures quelconques pour faire passer des droits ou intérêts allemands en des mains non allemandes avant la mise en vigueur du traité’, RIAA, vol. I, p 523. 23 Unofficial translation by the editor. Original text: il est de principe que déjà avec la signature d'un traité et avant sa mise en vigueur, il existe pour les parties contractantes une obligation de ne rien faire qui puisse nuire au traité en diminuant la portée de ses clauses…Ce principe—lequel en somme n'est qu'une manifestation de la bonne foi qui est à la base de toute loi et de toute convention—a reçu un certain nombre d'applications dans divers traités…(A. A. Megalidis v Turkey, Judgment of 26 July 1926, Annual Digest 1927–28, p 395) For a summary in English of the judgment, see Annual Digest 1927–28, Case no. 272, p 395. 24 Unofficial translation by the editor. Original text: à partir de la signature du traité, le Gouvernement allemand devait s'abstenir de tout acte qui devait rendre impossible l'exécution du traité;…par sa signature, il était déjà tenu non pas à transférer les biens immédiatement, mais à les garder afin de les transmettre après la mise en vigueur du traité. 25 Unofficial translation by the editor. Original text: ‘ne peut plus porter atteinte à la substance même des biens cédés…le principe de la bonne foi, dans l'exécution des obligations s'y oppose nettement’, PCIJ, 1926, Series C, no. 11, vol. I, p 183. 26 According to the Court, there was no obligation not to dispose of certain property. ‘In these circumstances’, the Permanent Court held, ‘the Court need not consider the question

whether, and if so how far, the signatories of a treaty are under an obligation to abstain from any action likely to interfere with its execution when ratification has taken place’, PCIJ, Series A, no. 7, pp 39–40. 27 Ibid, p 30. 28 According to R. Kolb: C'est un autre aspect de cet arrêt qui mérite d'être relevé. Suivant en cela l'argumentation allemande, la Cour a reconnu que des actes étatiques quelconques, y compris les actes ayant influence sur les contenus du traité signé, restent soumis à l'interdiction générale de l'abus de droit. On peut déduire de cet arrêt que les obligations spécifiques de ne pas priver un traité signé de son objet et de son but (sur lesquelles la Cour évite de prendre position) se doublent d'une obligation générale, non proprement préconventionnelle, d'agir de bonne foi, en l'occurrence de ne pas abuser d'un droit ou d'une liberté. Le rapport entre les deux obligations relève du principe de spécialité, il n'est pas pourtant pas exclu qu'elles puissent s'appliquer simultanément afin de se renforcer et de pallier d'éventuelles lacunes. (La bonne foi en droit international public—Contribution à l'étude des principes généraux de droit (Paris: PUF, 2000), p 193) See also YILC, 1966, vol. II, p 202: Certainly, in the Certain German Interests in Polish Upper Silesia case, the Permanent Court of International Justice appears to have recognized that, if ratification takes place, a signatory State's misuse of its rights in the interval preceding ratification may amount to a violation of its obligations in respect of the treaty. 29 Before this date, the issue of signature was raised before the ICJ by counsel for the parties in the case of the Arbitral Award Made by the King of Spain on 23 December 1906 (Honduras v Nicaragua); see pleading of P. de Visscher (Honduras), ICJ, Statements of Claims, Pleadings and Documents (1960), vol. II, pp 161–2. The opposing party, Nicaragua, maintained that: la bonne foi s'oppose à ce qu'entre la signature d'un traité et son entrée en vigueur l'Etat cédant diminue la valeur du bien cédé…Le traité produit donc dès sa signature certains effets, encore qu'on puisse les considérer comme affectés d'une condition suspensive…(Rejoinder of Nicaragua, ICJ, Statements of Claim, Pleadings and Documents (1960) vol. I, p 793) 30 North Sea Continental Shelf Cases (Federal Republic of Germany/Netherlands) (Federal Republic of Germany/Denmark), Judgment of 20 February 1969, ICJ Reports 1969, vol. 2, p 25, para. 27. 31 Ibid, para. 28. 32 Ibid, pp 25–7, paras 28–33. 33 Ibid, p 198. According to Judge Morelli: In connection with the Convention it may be observed that it was signed by the Federal Republic. This means that the Federal Republic participated in a technical operation which, to the extent of the Convention's avowed purpose of codification, consisted in the establishment of general international law. By its signature the Federal Republic expressed an opinion which, within the limits indicated supra, may be qualified as an opinio juris. But it was a mere opinion and not a statement of will, which could only be expressed by ratification. For it is only by ratification that the States signatories to a Convention express their will either to accept new rules or, in the case of a codification convention, to recognize pre-existing rules as binding. See further, the Dissenting Opinion of Judge Lachs, ibid, pp 219–40. 34 Annual Digest 1923–24, vol. 2, p 80. 35 Schrager v Workmen's Accident Insurance Institute for Moavic and Silesia in Annual Digest 1927–28, vol. 4, p 399. 36 According to the facts of this case: in July 1955, some two months after the conclusion of the Peace Treaty with Austria, one G., a person appointed manager of the defendants' business by one of the Occupying Powers, issued a directive, by agreement with the members of the works' council of the defendants, that no person in the employment of the defendants could henceforth be dismissed without the consent of the works' council. The effect of this directive was that for all practical purposes the defendants were precluded from terminating any contract of employment of their own accord. When the directive was issued the defendants' business was still subject to the control of the occupation authorities, but it was well known that within a very short time, within two months from the coming into operation of the Peace Treaty with Austria, the defendants' business would be freed from control…(Termination of Employment (Austria) Case, ILR, 1956, vol. 23, pp 470–1) 37 Ibid, pp 470–1. 38 X v Mayor and Aldermen of Haarlem, NYIL, 1978, p 474. 39 Second Report on the Law of Treaties, YILC, 1951, vol. II, p 73. 40 Report on the Law of Treaties, YILC, 1953, vol. II, pp 108–11.

41 Article 30(1)(c) of his draft. See Report on the Law of Treaties, YILC, 1956, vol. II, pp 45–6. 42 Article 9(2)(c) of his draft. See YILC, 1962, vol. I, pp 99–109, 235. 43 P. Cahier, supra n 10, p 35. 44 Only Japan proposed the deletion of the whole of'Art. 17 of the ILC draft (which subsequently became Art. 18 of the Vienna Convention). See Sir Humphrey Waldock, Fourth Report on the Law of Treaties, YILC, 1965, vol. II, p 46. 45 Article 17 of the ILC draft, YILC, 1965, vol. II, p 44. 46 See the interventions of Turkey, Lebanon, Korea, and Iran: Conference, 1st session, 1968, Official Documents CRA, 1st session, 19th meeting, pp 109–11. The amendment proposed by the United Kingdom directed at the deletion of Art. 18 only received 14 votes for and 74 against: A/CONF.39/C.1/L.135, Conference Records, 1st session, 20th meeting, p 105. 47 See the comments of Switzerland: ibid, 19th meeting, p 97. 48 See the comments of Greece: ibid, 19th meeting, p 98. 49 See the comments of Italy: ibid, 19th meeting, p 99. 50 J. Nisot, supra n 10, p 503. 51 P. Cahier, supra n 10, p 37. 52 Canadian Yearbook of Int'l L, 1978, p 366. 53 NYIL, 1975, pp 283–4. 54 Unofficial translation by the editor. Original text: La période qui s'écoule entre la conclusion et l'entrée en vigueur du traité a une signification juridique en ce sens que l'Etat qui a signé le traité…doit s'abstenir d'actes qui priveraient un traité de son objet et de son but. (ASDI, 1977, pp 150–1) 55 On 4 January 1980, the State Department published a declaration according to which ‘the U.S. and the Soviet Union share the view that under international law a State should refrain from taking action which could defeat the object and the purpose of a treaty it has signed subject to ratification’ in M. Nash Leich (ed.), Digest of United States Practice in International Law, 1980 (Washington DC: Office of the Legal Adviser, Department of State, 1986), p 398; see the letter of Elliot Richardson, Special Representative of the President at the Law of Sea Conference for the Member of Congress Gerry Studds dealing with the potential legal effect of the US signature of UNCLOS: Signature…under customary international law imposes no obligation other than refraining from acts which would defeat the object and purpose of the treaty. This very general obligation continues only until such time as it becomes clear that the State no longer intends to become a party to the treaty…(quoted by P. V. McDade, ‘The Interim Obligation Between Signature and Ratification of a Treaty: Issues Raised by the Recent Actions of Signatories to the Law of the Sea Convention with Respect to the Mining of the Deep Seabed’, NILR, 1985, p 13) See also the responses of the Legal Counsel of the State Department with regard to the provisional application of treaties: In the majority of cases the obligation not to defeat the object and purpose of the treaty means a duty to refrain from taking steps that would render impossible future application of the treaty when ratified…[this is]… a customary international rule, in the Vienna Convention on the Law of Treaties, and in United States Law. (AJIL, 1980, pp 931–3) See further Robert Owen, Legal Counsel of State Department, Memorandum, 21 February 1980 according to which: Moreover the growing body of case law which regards the Vienna Convention as evidence of contemporary customary international law makes clear that whatever doubt may have existed in the past, the rule expressed in Article 18 of the Vienna Convention has become a legal obligation binding upon all States. (quoted by P. V. McDade, supra this note, p 13) As regards the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies of 5 December 1979, Research Services of the US Congress considered that: According to Article 18 of the Vienna Convention on Treaties, a signatory would be obligated to refrain from acts which would defeat the object and purpose of the agreement until it makes its intention clear not to become a party to the agreement. (M. Nash Leich (ed.), supra this note, p 701) 56 The USSR made several references, during and after the Vienna Conference on the Law of Treaties, to the fact that Art. 18 or its predecessor, Art. 15 of the ILC draft, represented customary international law. Various Soviet declarations regarding the SALT II Treaty maintain the customary nature of the obligation contained in Art. 18: see in this regard, R. F. Turner, ‘Legal Implications of Deferring Ratification of Salt II’, VaJIL, 1981, pp 766–7. 57 According to Senator Muskie intervening in the debate on the deep sea-bed: the affixing of the mere signature of any executive branch official on the Law of the Sea Treaty or any other treaty will not bind this body from taking any actions which

anyone claims would defeat the object and purpose of the treaty. (M. Nash Leich (ed.), supra n 55, p 691) In his reply of 21 December 1979, Ambassador Richardson took a contrary view of the matter: International law imposes no obligation upon a signatory to a treaty to comply with its terms prior to entry into force with respect to that signatory, other than the obligation in good faith to refrain from acts which could defeat the object and purpose of the treaty. (M. Nash Leich (ed.), supra n 55, p 692) 58 It must be specified that these States have clearly expressed their intention never to ratify UNCLOS as adopted in 1982. It is clear that in such a case, Art. 18 of Vienna Convention does not apply. 59 See, for complete analysis of this situation, P. V. McDade, supra n 55, pp 28–47. 60 ‘The General Assembly,…calls upon States which consent to the adoption of the Agreement to refrain from any act which would defeat its object and purpose’, A/RES/48/263. 61 Conference Records, 1st session, 20th meeting, p 104. See also R. Kolb, supra n 28, p 183. 62 ‘EU Tries to Avoid Conflict With US Over Court’, Financial Times, London, 29 August 2002, p 4. 63 Ibid. 64 See Arts 19(c), 20(2), 31(1), 33(4), 41(1), 58(1), 60(3) of the Convention. In truth, the expression ‘object and purpose’ stems from an Advisory Opinion of the PCIJ of 1926 regarding the Competence of the ILO to Regulate Incidentally the Personal Work of the Employer (PCIJ, 1926, Series B, no. 13, p 18). In this Opinion, the Court spoke of ‘the aim and the scope’ of a treaty. Subsequent Advisory Opinions used this expression but with subtle variations: in the Advisory Opinion on the Greco-Bulgarian ‘Communities’ (PCIJ, 1930, Series B, no. 17, p 21), we find the expression ‘the aim and the object’; in the Opinion on the Interpretation of the Convention of 1919 concerning Employment of Women during the Night (PCIJ, 1932, Series A/B, no. 50, Dissenting Opinion of Judge Anzilotti, pp 383–9), ‘the subject and aim’ is spoken of in the Opinion on Access to German Minority Schools in Upper Silesia (PCIJ, 1935, Series A/B, no. 64, p 15), where one finds ‘meaning and spirit of the treaties’. 65 Advisory Opinion on Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (1950), ICJ Reports 1950, p 220. 66 Chorzow Factory, PCIJ, 1927, Series A, no. 9, p 24; Greco-Bulgarian ‘Communities’, PCIJ, 1928, Series B, no. 17, p 19. 67 See the Dissenting Opinion of Gavan Griffith in the Arbitral Award of 2 July 2003, Dispute Concerning Article 9 of the OSPAR Convention (Ireland v United Kingdom of Great Britain and Northern Ireland), Permanent Court of Arbitration, p 70, para. 13: at the least, Article 18 of the Vienna Convention applies to require the United Kingdom as a signatory State to the Aarhus Convention, to refrain from acts that would defeat its objects and purposes. Hence, to a limited extent it may be said that the Vienna Convention has the effect that the United Kingdom is bound by its object and purpose pending ratification. Available at: http://www.pca-cpa.org/PDF/OSPAR%20Award.pdf. 68 This idea of an a priori control is justified through regard to the fact that a reservation formulated at the moment of a treaty's signature could be confirmed or declared void at the moment of the expression of consent to be bound depending on whether or not the reservation is compatible with the object and purpose of the treaty. Moreover, the draft guidelines of the ILC on reservations to treaties include the possibility of confirmation/voiding of a reserve formulated at the moment of signature. In fact, draft guideline 2.2.1 (Formal confirmation of reservations formulated when signing a treaty) states that: If formulated when signing a treaty subject to ratification, act of formal confirmation, acceptance or approval, a reservation must be formally confirmed by the reserving State or international organization when expressing its consent to be bound by the treaty. In such a case the reservation shall be considered as having been made on the date of its confirmation. See A. Pellet, Special Rapporteur, Tenth Report on Reservations to Treaties, A/CN.4/558, 1 June 2005, para. 15, available at: http://www.un.org/law/ilc/sessions/57/57sess.htm#reservations. 69 See Judgment of 16 March 2001, Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain) (2001), ICJ Reports 2001, para. 89: The Court observes that signed but unratified treaties may constitute an accurate expression of the understanding of the parties at the time of signature. In the circumstances of this case the Court has come to the conclusion that the AngloOttoman Convention does represent evidence of the views of Great Britain and the Ottoman Empire as to the factual extent of the authority of the Al-Thani Ruler in Qatar up to 1913. 70 For the text of the final ILC Draft Articles on the Law of Treaties, see: Official Records, 21st session, 1966, Supplement No. 9 (A/6309/Rev.1), p 12. For discussions on Art. 15, see Conference Records, 1st session, 20th meeting. 71 A/CONF.39/C.1/L.129.

72 Conference Records, 1st session, 20th meeting, p 104. 73 Conference Records, 1st session, 19th meeting, p 97. See also A/CONF.39/C.1f/L.124. 74 Furthermore, it should be noted that at the Vienna Conference on the Law of Treaties there was a debate on whether the element of intention should be taken into account in the examination of compliance with the obligation not to defeat the object and purpose of a treaty. The concept that was retained is that the examination of compliance with the obligation should be conducted exclusively in an objective way in order to avoid difficulties. See further in this respect: T. Hassan, supra n 15, p 458. 75 Nevertheless according to Mr Yasseen, President of the Drafting Committee, the adjunct of the notion of purpose ‘in no way affected the substance of the provisions and did not widen the obligation imposed on States by Article 15. It was nothing but a purely drafting change, made in the interests of clarity’. See A/CONF.39/11, p 361. 76 A certain number of scholars consider that the expression ‘object and purpose’ creates an umbilical link between the two elements of the expression. Also, these two notions could not be separated in an absolute way even if a treaty could possess several ‘objects and purposes’. They have to be identified with respect to each other. See eg Sir I. Sinclair, supra n 8, p 130. Along the same lines, M. E. Villiger, supra n 15, p 321; D. W. Greig, ‘Reciprocity, Proportionality, and the Law of Treaties’, VaJIL, 1994, p 295. 77 It should be specified that Anglo-Saxon and French scholars do not have the same understanding of the distinction which must be made between the notion of object and the notion of purpose. For example, Jennings uses the expressions ‘object’ and ‘purpose’ as a unique expression, that is without distinguishing between the two concepts: see R. Y. Jennings, ‘Treaties’ in M. Bedjaoui (ed.), International Law: Achievements and Prospects (Paris: UNESCO, 1991), vol. I, p 145. On the other hand, French scholars generally consider the object and purpose as two completely distinct notions. In this vein, Rousseau makes a distinction between the ‘objet ou effet direct et immédiat de l'acte’ and the ‘but ou résultat de l'effet juridique produit par l'acte’: C. Rousseau, Droit international public (Paris: Sirey, 1970), vol. 1, p 272. See also S. Sur, L'interprétation en droit international public (Paris: LGDJ, 1974), pp 227–31. However, French scholarship is far from being unanimous with respect to this issue: see further, P. Reuter, ‘Solidarité et divisibilité des engagements conventionnels’ in Y. Dinstein and M. Tabory (eds), International Law at a Time of Perplexity. Essays in Honour of Shabtai Rosenne (Dordrecht: Martinus Nijhoff, 1989), p 628; M. Gounelle, La motivation des actes en droit international public (Paris: Pedone, 1979), pp 47–9. 78 The ICJ had to distinguish explicitly between the two notions in the examination of obligations resting on States that were parties to disputes submitted to it. For example, in the case of Border and Transborder Armed Actions (Nicaragua v Honduras), Judgment of 20 December 1988, ICJ Reports 1988, p 89, para. 46), the Court held: ‘Such a solution would be clearly contrary to both the objet and the purpose of the Pact’. This view can also be found in the case of the Oil Platforms (Islamic Republic of Iran v United States of America), Judgment of 12 December 1996, ICJ Reports 1996, p 810, para. 18 and p 813, para. 27, in which the Court examined potential violations of the purpose and the object of the treaty at issue separately. In the Asylum case (Colombia/Peru), Judgment of 20 November 1950, ICJ Reports 1950, p 282, the Court separately examined the object of the Havana Convention (‘The object of the Havana Convention…, was, as indicated in its preamble, to fix the rules which the signatory States must observe for the granting of asylum in their mutual relations’). 79 ICJ Reports 1951, p 27. 80 Delimitation of the Maritime Boundary between Guinea and Guinea-Bissau, Award of 14 February 1985, ILR, vol. 77, p 636. The flexible nature of the notion was explicitly recognized by the ILC during the presentation of the draft on the succession of States to the General Assembly of the UN: the Commission intends to lay down an international objective legal test of compatibility which, if applied in good faith, should provide a reasonable, flexible and practical rule. The ‘incompatibility with the object and purpose of the treaty’ and the ‘radical change in the conditions for the operation of the treaty’, used in other contexts by the Vienna Convention on the Law of Treaties, in the Commission's view, are the appropriate criteria in the present case to take account of the interests of all the States concerned and to cover all possible situations and all kinds of treaties. (YILC 1972, vol. II, p 292) 81 The ILC comments are of no help in this respect. See eg Sir G. Fitzmaurice, Report on the Law of Treaties, YILC, 1956, vol. II, p 104, draft Arts 30(1)(c) and 33(2). See also, Sir H. Waldock, First Report on the Law of Treaties, YILC, 1962, vol. II, pp 46–61, draft Arts 9(3)(b) and 12(3)(b). According to P. Reuter, it would have been interesting to adopt a wording in the sense of ‘s'abstenir d'actes de nature à porter atteinte à la légitime attente de ses partenaires’: the Commission would show that the question of a breach of good faith must be considered in each individual case in the light of the statements made, the object of the treaty and the circumstances as a whole. For instance, in the very common case of an economic treaty comprising undertakings concerning tariffs, if a State made heavy imports or exports before the treaty entered into force, so as to suffer less when fulfilling its undertakings, that action might or might not be incompatible with good faith: it would depend on the circumstances. Such a formula might perhaps be too loose, but it would seem to have the advantage of better respecting the independence of the principle of good faith and better separating the observance of that principle from the actual execution of the treaty (YILC, 1965, vol. I, 788th meeting, p 91).

82 For the purpose of illustration, it is interesting to identify the different conceptions of States with respect to the notion of object and purpose depending on the circumstances. See eg the Statement of Claim of the US government, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), ICJ, Statements of claim, pleadings and documents (1971), vol. I, pp 843 ff, and esp. pp 863–4. See also the case regarding the International Air Transport Service Agreement of 27 March 1946 between the United States and France, RIAA, vol. 18, pp 417 ff, esp. p 428. Lastly, see the Opinion on the Legality of the Threat or Use of Nuclear Weapons (ICJ Reports 1996), esp. paras 60 and 61 which provide evidence for the divergent interpretations of States regarding the object and purpose of the treaties on the limitation or elimination of nuclear weapons. 83 G. Cornu, Vocabulaire juridique (Paris: PUF, 1987), p 584. 84 J. Ghestin, Traité de droit civil, La formation du contrat (Paris: LGDJ, 1993), p 569. 85 Unofficial translation by the editor. Original text: L'objet d'un acte réside dans les droits et obligations auxquels il donne naissance. L'objet d'un acte c'est donc la norme qu'il crée. Lorsque la Cour veut définir l'objet d'un traité, elle analyse le contenu de celui-ci, c'est-à-dire les obligations qu'il crée à la charge des parties et les droits qu'il leur confère. Si l'objet d'un acte est toujours une norme, chaque acte se caractérise par le contenu de la norme qu'il crée. Cependant les droits et obligations créés par l'acte ne constituent pas une fin en eux-mêmes. Ils ne sont que le moyen d'atteindre un résultat donné. Et c'est le résultat qui forme, pour le ou les auteurs de l'acte, le but recherché. (J. Jacqué, Eléments pour une théorie de l'acte juridique en droit international public (Paris: LGDJ, 1972), p 142) 86 This objective approach could consist in a teleological interpretation of the relevant international agreement. In this regard, the jurisprudence of the International Criminal Tribunal for the Former Yugoslavia is of interest: see the case Dusko Tadic, case no. IT/94/1 (14 October 1995). See also in the same case and from the same point of view the Separate Opinion of Judge Abi-Saab. 87 J. Dehaussy and M. Salem, Sources du droit international. Les traités. Interprétation. Principes, règles et méthodes applicables à l'interprétation, Juris-Classeurs 1995, fasc. 12–6, 24. According to the authors, the notion of object and purpose of a treaty is objective: Ce sur quoi porte le traité—c'est-à-dire la matière (ou les matières) que les parties sont convenues de régir—résulte en effet objectivement de l'instrument lui-même…De là, enfin, l'appel au but du traité pour déterminer l'étendue de son objet : ce qui justifie la liaison entre les deux notions. 88 See eg the Opinion on the Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, supra n 79, p 23. See further the case Diversion of Water from the River Meuse (PCIJ, 1937, Series A, no. 70, p 13), where the PICJ had recourse to the preamble of a German-Belgian treaty of 1863 in order to establish its purpose. In the Opinion on the Interpretation of the Convention of 1919 concerning Employment of Women during the Night (supra n 64, p 383), Judge Anzilotti in his Dissenting Opinion referred extensively to the preamble to Section XIII of the Versailles Treaty in order to identify the scope of competence of the ILO. Other examples for the recourse to the preamble for the identification of the object and purpose of a treaty can be found in the judgment of the ICJ regarding the case Rights of Nationals of the United States of America in Morocco (France v United States of America), Judgment of 27 August 1952, ICJ Reports 1952, pp 196–7 and in the judgment of the ICJ regarding Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment of 3 February 1994, ICJ Reports 1994, pp 25–6, para. 52. See also Practices for the Preparation of International Labour Conventions: Handbook on Good Drafting Practices, ILO, Governing Body, 292nd Session, March 2005, Doc. GB.292/LILS/3. 89 J. Klabbers, ‘Some Problems Regarding The Object and Purpose of Treaties’, Finnish Yearbook of Int'l L, 1997, p 158: it is submitted, that recourse to the title of a treaty may often offer a convenient shortcut in the process of identifying a treaty's object and purpose. Especially where the preamble and the text of a treaty indicate several possible object and purposes, recourse to the treaty's title may be of some help. Thus, while one of the objectives of the Chemical Weapons Convention, as listed in its preamble, is the desire to ‘promote free trade in chemicals as well as international cooperation and exchange of scientific and technical information…in order to enhance the economic and technological development of all States parties’, it can hardly be maintained that this particular objective should qualify as the object and purpose of a treaty bearing the title Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their destruction. Of course, the title of a treaty will only offer a presumption regarding the treaty's object and purpose, which will have to be substantiated by closer analysis of other factors, but it does not appear to be a presumption which will often be rebutted in practice. And where it will be rebutted, the treaty has been seriously misnamed. 90 See the case on Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Judgment of 27 June 1986, ICJ Reports 1986, p 136, para. 272: In the view of the Court, an act cannot be said to be one calculated to deprive a treaty of its object and purpose, or to impede its due performance, if the possibility of that act has been foreseen in the treaty itself, and it has been expressly agreed that the

treaty ‘shall not preclude’ the act, so that it will not constitute a breach of the express terms of the treaty. Furthermore, it must be remembered that courts can have recourse to different texts of the relevant treaty in order to examine its object and purpose; see eg the case Golder in which the European Court of Human Rights referred to statutes of the Council of Europe in order to identify the scope of application of Art. 6(1) of the European Convention on Human Rights (Judgment of 21 February 1975, Series A, no. 18). 91 These scholars justify their position by referring to the example of the Charter of the United Nations. Its object and purpose are defined in its preamble as well as in its Arts 1, 2, and 55. See I. Buffard and K. Zemanek, ‘The Object and Purpose of a Treaty: An Enigma?’, Austrian Rev of Int'l and European L, 1998, pp 334–5. 92 Ibid, pp 336–7. In this regard, commentators suggest the example of the Vienna Convention on Diplomatic Relations. If the purpose is clearly specified in the preamble to the Convention in order to identify its object, it must, as a second step, be referred to in the substantial provisions as a whole. 93 Ibid, p 333. See also Maritime Delimitation between Guinea-Bissau and Senegal (GuineaBissau v Senegal), ICJ Reports 1991, p 72, paras 55–6), in which the ICJ used a similar method when it refused to let the preamble to the arbitration agreement prevail over the wording of Art. 2 of the same agreement in identifying its object and purpose. 94 On this type of instrument, see A. Kiss, ‘Les traités-cadres : Une technique juridique caractéristique du droit international de l'environnement’, AFDI, 1993, p 792; see also, L. Boisson de Chazournes, ‘La gestion de l'intérêt commun à l'épreuve des enjeux économiques— Le protocole de Kyoto sur les changements climatiques’, AFDI, 1997, pp 700–15. 95 Article 16. Also see Art. 14 of the Montreal Protocol of 1987 with regard to substances that diminish the ozone layer according to which: ‘Except as otherwise provided in this Protocol, the provisions of the Convention relating to its protocols shall apply to this Protocol’. For the text of the instruments, see P. Sands and P. Galizzi, Documents in international environmental law (Cambridge: Cambridge University Press, 2004), p. 82. 96 Article 19(8) of the ILO Constitution in fact states that: In no case shall the adoption of any Convention or Recommendation by the Conference, or the ratification of any Convention by any Member, be deemed to affect any law, award, custom or agreement which ensures more favourable conditions to the workers concerned than those provided for in the Convention or Recommendation. 97 Inquiry of the Polish government regarding Art. 10 of the Hours of Work (Commerce and Offices) Convention (No. 30), 1930, Official Bulletin, vol. XVII, no. 1, 1 February 1932, pp 48– 9; inquiry of the Swedish government regarding Art. 20 of the Convention (No. 57) on hours of work on board and the staff, Official Bulletin, vol. XXIII, no. 1, 10 April 1938, pp 34–7. 98 See the work of the Commission on International Labour Legislation at the Peace Conference of 1919 which drafted the ILO Constitution, Official Bulletin, vol. I, April 1919, August 1920, pp 209–12. 99 The Committee of Experts of the ILO, an independent organ responsible for the verification of the application of international labour conventions, supplied this specification: Report III (Part 4A), ILC, 70th Session, 1984, p 257 (observation of the Committee addressed to Canada regarding Convention (No. 111) Discrimination in Respect of Employment and Occupation). 100 See the cases: Application of the Convention of 1902 Governing the Guardianship of Infants (Netherlands v Sweden), Judgment of 28 November 1958, ICJ Reports 1958, pp 68–71; and Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), ICJ Reports 1986, pp 136–8, paras 272–6 and p 140, para. 280. 101 See: Rights of Nationals of the United States of America in Morocco (France v United States of America), supra n 88, p 196. 102 Conference, 2nd session, p 31. See esp. the amendment proposed by the Polish delegation: A/CONF.39/L.16, Official Documents CRA, 2nd session, 10th plenary session, p 31. 103 Signature is sometimes replaced by the signature of the President and Secretary-General of the Conference. This procedure is used in the ILO. 104 Q. D. Nguyen, A. Pellet, and P. Daillier, Droit international public (7th edn, Paris: LGDJ, 2002), p 134 (no. 74). 105 Sir G. Fitzmaurice, Report on the Law of Treaties, YILC, 1956, vol. II, p 123. 106 P. Cahier, supra n 10, p 36. 107 A/CONF.183/10, Annexe I, Resolution F, para. 5. 108 Ibid, para. 2. Other states can be invited to join. 109 In the case of the Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (supra n 79, p 28), the ICJ stressed that signature establishes a ‘provisional status’. 110 See supra para. 36. 111 J. Nisot, supra n 10, p 501. 112 YILC, 1965, vol. I, pp 97–110. 113 P. Cahier, supra n 10, p 37.

114 See the comments made by Finland, YILC, 1965, vol. II, p 45, and the Netherlands, YILC, 1966, vol. II, p 359. 115 Conference, 1st session, Official Documents CRA, 1st session, 19th meeting, p 109. 116 See infra paras 56 ff. 117 P. Cahier, supra n 10, p 36. 118 J. Nisot, supra n 10, p 502. 119 North Sea Continental Shelf Cases (Federal Republic of Germany/Netherlands) (Federal Republic of Germany/Denmark), supra n 30, pp 232–3. 120 Ibid, pp 233–4. 121 Ibid, p 235. 122 See the Dissenting Opinion of Gavan Griffith in the award of 2 July 2003, Dispute Concerning Article 9 of the OSPAR Convention (Ireland v United Kingdom of Great Britain and Northern Ireland), Permanent Court of Arbitration, p 71 (paras 17–18). With respect to the Convention of Aarhus on the access to information, public participation in the decision-making process and access to legal processes in environmental matters that the United Kingdom had signed but not ratified, arbitrator Griffith considered that: [The] United Kingdom has maintained its intention to be bound by, and to implement, the obligations of the Aarhus Convention. Most recently, in its Proposal for a Revised Regime for Public Access to Environmental Information, the Department of the Environment, Food and Rural Affairs (‘DEFRA’) reiterated that ‘The UK is committed to ratifying the Aarhus Convention as soon as possible’…Hence, although the formal act of ratification that would establish on the international plane the consent of the United Kingdom to be bound by the Aarhus Convention has not yet occurred, the United Kingdom's intention to treat the Aarhus Convention as a binding instrument is unequivocally confirmed (original emphasis). Available at: http://www.pca-cpa.org/PDF/OSPAR%20Award.pdf. 123 North Sea Continental Shelf Cases (Federal Republic of Germany/Netherlands) (Federal Republic of Germany/Denmark), supra n 30, p 236. 124 Judgment of 18 December 1951, Anglo-Norwegian Fisheries Case (United Kingdom v Norway), ICJ Reports 1951, p 136. 125 This is especially the case for the United States with the Convention on the Prevention and Punishment of the Crime of Genocide that it signed in 1948 but only ratified in 1988. 126 See the text of the letter available at: http://www.state.gov/r/pa/prs/ps/2002/9968.htm. See also the declaration of the Secretary of Defence, Donald Rumsfeld, on the statute of the Court: Earlier today, this administration announced the President's decision to formally notify the United Nations that the United States will not become a party to the International Criminal Court treaty. The U.S. declaration, which was delivered to the Secretary General this morning, effectively reverses the previous U.S. government decision to become a signatory. The ICC's entry into force on July 1st means that our men and women in uniform—as well as current and future U.S. officials—could be at risk of prosecution by the ICC. We intend to make clear, in several ways, that the United States rejects the jurisdictional claims of the ICC. The United States will regard as illegitimate any attempt by the Court or State parties to the treaty to assert the ICC's jurisdiction over American citizens. The U.S. has a number of serious objections to the ICC—among them, the lack of adequate checks and balances on powers of the ICC prosecutors and judges; the dilution of the U.N. Security Council's authority over international criminal prosecutions; and the lack of an effective mechanism to prevent politicized prosecutions of American service members and officials. These flaws would be of concern at any time, but they are particularly troubling in the midst of a difficult, dangerous war on terrorism. There is the risk that the ICC could attempt to assert jurisdiction over U.S. service members, as well as civilians, involved in counterterrorist and other military operations—something we cannot allow. Notwithstanding these objections to the treaty, the United States respects the decision of those nations that have chosen to join the ICC. But they, in turn, will need to respect our decision not to join the ICC or to place our citizens under the jurisdiction of the Court. Unfortunately, the ICC will not respect the U.S. decision to stay out of the treaty. To the contrary, the ICC provisions claim the authority to detain and try American citizens—U.S. soldiers, sailors, airmen and Marines, as well as current and future officials—even though the United States has not given its consent to be bound by the treaty. When the ICC treaty enters into force this summer, U.S. citizens will be exposed to the risk of prosecution by a court that is unaccountable to the American people, and that has no obligation to respect the constitutional rights of our citizens. The United States understandably finds that troubling and unacceptable. Clearly the existence of an International Criminal Court, which attempts to claim jurisdiction over our men and women in uniform stationed around the world, will necessarily complicate U.S. military cooperation with countries that are parties to the ICC treaty— because those countries may now incur a treaty obligation to hand over U.S. nationals to the court, even over U.S. objections. The United States would consider any such action to be illegitimate. We obviously intend to avoid such actions. Fortunately there may be mechanisms within the treaty by which we can work bilaterally with friends and allies, to the extent they are willing, to prevent the jurisdiction of the treaty and

thus avoid complications in our military cooperation. Obviously, countries that have not ratified the treaty would be under no such obligation to cooperate with the court. By putting U.S. men and women in uniform at risk of politicized prosecutions, the ICC could well create a powerful disincentive for U.S. military engagement in the world. If so, it could be a recipe for isolationism—something that would be unfortunate for the world, given that our country is committed to engagement in the world and to contributing to a more peaceful and stable world. For a strong deterrent, it is critical that the U.S. be leaning forward, not back. We must be ready to defend our people, our interests, and our way of life. We have an obligation to protect our men and women in uniform from this court and to preserve America's ability to remain engaged in the world. And we intend to do so. Available at: http://www.defenselink.mil/releases/release.aspx?releaseid=3337. 127 A/CONF.39/C.1/L.131. 128 Unofficial translation by the editor. Original text: Il n'est pas extraordinaire que plus d'une année s'écoule entre la clôture des négociations dont est issu un traité et son entrée en vigueur. Entre-temps, l'Etat qui a ratifié, accepté ou approuvé se trouve, du fait de l'alinéa b) de l'Article 18, sous le coup d'une obligation dont il ne connaît ni l'étendue réelle ni la durée. Il pâtit de son zèle. (J. Nisot, supra n 10, p 502) 129 Ibid, p 503. 130 As was affirmed by some, such as Harvard Research in International Law which in its commentary on the draft convention on treaties held that the obligation of a signatory state cannot be considered ‘a legal duty, e.g., a duty under international law…but an obligation ‘of good faith merely, for which there is no legal sanction’. See AJIL, vol. 29(4) Suppl., pp 781 and 787. 131 As R. Kolb puts it: ‘la ratification n'est qu'un acte subordonné ayant effet rétroactif’, supra n 28, p 185. 132 Papers on the Foreign Relations of the United States, vol. 44, 1903, p 299 as quoted by R. Kolb, supra n 28, p 185. The author quotes, with the same view, the report of the AttorneyGeneral and of the Queen's Advocate of the United Kingdom on 15 May 1857, drafted with regard to a treaty imposing a constitution on the Bay Islands which had not yet been ratified by Honduras. According to R. Kolb: les auteurs s'inspirent d'une doctrine d'effet rétroactif de la ratification: ‘That Altho’ the Convention between Her Majesty and the Republic of Honduras has not yet been ratified, yet the ratifications, when exchanged, will relate back to, and confirm the Convention…No act can in the meantime be properly done by Her Majesty, whilst the ratification of the Treaty is under consideration, which may at all affect any of the stipulations of the treaty…(supra n 28, p 185) 133 See Harvard Draft, pp 770 ff; see also R. Kolb, supra n 28, p 185. 134 See J. M. Jones, supra n 12, pp 66 ff; reference may also be made to the pleading of P. de Visscher in Arbitral Award Made by the King of Spain on 23 December 1906 (Honduras v Nicaragua), supra n 28, pp 161–2. bbb 135 J.-P. Cot, supra n 15, p 155. 136 A. D. McNair, supra n 15, p 202. 137 On this issue, consult the commentary on Art. 25 of the Vienna Convention in this work. See also: P Picone, L'applicazione in via provvisoria degli accordi internazionali (Naples: E. Jovene, 1973); D. Vignes, ‘Une notion ambiguë: La mise en application provisoire des traités’, AFDI, 1972, pp 181 ff. 138 ILM, 1974, p 455. 139 Ibid, pp 457–60. 140 We do not share the opinion of the Deputy Legal Counsel of the US State Department, Mark B. Feldman, who in response to the question of a senator interrogating him on the links between provisional application and the obligation of a State not to take action contrary to the object and purpose of a treaty before the ratification, considered that there were no links between the two: There is no direct relationship between provisional application and the obligation of treaty partners not to take actions prior to ratification that would defeat the object and purpose of the treaty. Provisional application means that treaty terms are applied temporarily pending final ratification. The obligation not to defeat the object and purpose of the treaty prior to ratification could, in theory, necessitate pre-ratification application of provisions, if any, where non-application from the date of signature would defeat the object and purpose of the treaty. Such provisions are rare. In the majority of cases the obligation not to defeat the object and purposes of the treaty means a duty to refrain from taking steps that would render impossible future application of the treaty when ratified. Both provisional application of treaties and the obligation not to defeat the object and purpose of treaties prior to ratification are recognized in customary international law, in the Vienna Convention on the Law of Treaties. (AJIL, 1980, p 933) 141 Unofficial translation by the editor. Original text:

Le Gouvernement allemand reconnaît que ce serait contraire à la bonne foi si, après la signature, il avait pris des mesures quelconques pour faire passer les droits et intérêts allemands en mains non allemandes. Mais il conteste qu'il fût obligé de l'empêcher et de saisir, avant l'entrée en vigueur du Traité…les droits et intérêts en question. (RIAA, vol. I, p 522) 142 M. Nash Leich, supra n 55, p 692. 143 M. Lachs had some concerns along similar lines: An example of the kind of question that would need to be considered was the situation in which ten States signed a disarmament treaty in 1965 and entered into an obligation to reduce their armies by one third, the treaty to enter into force on 1 January 1966. Meanwhile one of the parties increased its army during the remaining months of 1965. Was it enough to say that the State had to refrain from any action calculated to frustrate the treaty? Was not the position that, if there was no specific provision on the subject, signatory States were under an obligation to maintain the status quo, so as not to invalidate the basic presumption of the agreement? (YILC, 1965, vol. I, 789th session, p 97) 144 See the text of the Convention at: http://www.cites.org/eng/disc/text.shtml. 145 In the draft regarding the law of treaties that was submitted to the ILC, Sir Hersch Lauterpacht added to the obligation not to deprive a treaty of its object and purpose the obligation to submit the signed instruments to the competent national authorities. Article 5(2) of the draft anticipated that signature of a treaty entailed the obligation of good faith ‘to cause the treaty thus signed to be examined by the competent constitutional authorities with the view to determining whether the signature ought to be confirmed’, see the Report on the Law of Treaties by Sir H. Lauterpacht, YILC, 1953, vol. II., pp 109 ff. The main reasons that led Lauterpacht to develop such an idea were that ‘the mere fact of signature confers upon the signatory certain rights […] it is proper that there should exist some obligation in consideration of those rights’ (at 110) ‘and that what States cannot do is ‘sign a treaty and subsequently conduct themselves as if they had no concern with it’ (at 109). Lauterpacht added that ‘all these considerations prompt the conclusion that signature, although not implying an obligation of ratification implies the duty to take some action showing a deliberate acknowledgment of the principle that eventual ratification is the natural outcome and purpose of the signature’ (at 110). 146 L. Oppenheim (ed. H. Lauterpacht), supra n 13, vol. I, p 890. 147 Article 19(5)(b) of the ILO Constitution (available at: http://www.ilo.org/public/french/about/iloconst.htm). 148 See the opinion of S. Rosenne: the Special Rapporteur had perhaps been mistaken in taking signature as the starting point for bringing the obligation into play, since provision was often made in multilateral conventions for the original parties to choose between signature followed by ratification and accession without signature, the two being treated on an equal footing.…[T]he obligation should be made to attach to States which had declared themselves positively in favour of supporting the adoption of the treaty. While a multilateral convention was being negotiated States could, and did, vote against individual clauses or Articles, but at the close of the proceedings it was rare for participants to vote against the text as a whole; the more usual practice was to abstain and, unless a rollcall vote was taken, it might not always be possible to determine which States had done so. In view of the growing practice of accession without signature, there seemed no justification for basing the Article on the classical procedure of signature followed by ratification.…Another objection to giving such prominence to signature and its consequences was that some treaties were not signed at all, but only authenticated; that was true of the international labour conventions, and the recent Convention on Settlement of Investment Disputes between States and Nationals of Other States drawn up by the International Bank for Reconstruction and Development. (YILC, 1965, vol. I, 788th meeting, p 101) * Professor of Public International Law and International Organization, Faculty of Law, University of Geneva, Switzerland. ** Legal counsel, International Committee of the Red Cross (ICRC), Geneva. *** Lecturer, Faculty of Law, University of Geneva and Associate Professor, Catholic University of Lille.

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Volume I, Part II Conclusion and Entry into Force of Treaties, s.1 Conclusion of Treaties, Art.18 1986 Vienna Convention Laurence Boisson de Chazournes, Anne-Marie La Rosa, Makane Moïse Mbengue From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Object & purpose (treaty interpretation and) — Treaties, entry into force — Treaties, ratification

(p. 404) 1986 Vienna Convention Article 18 Obligation not to defeat the object and purpose of a treaty prior to its entry into force A State or an international organization is obliged to refrain from acts which would defeat the object and purpose of a treaty when: (a) that State or that organization has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, act of formal confirmation, acceptance or approval, until that State or that organization shall have made its intention clear not to become a party to the treaty; or (b) that State or that organization has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed. 1. Article 18 of the Vienna Convention of 1986 takes up the content of its homonym, the Convention of 1969, taking into account the situation of international organizations as signatories or potential parties to an international treaty. * ANNE-MARIE LA ROSA ** MAKANE MOÏSE MBENGUE ***

LAURENCE BOISSON DE CHAZOURNES

Footnotes: * Professor of Public International Law and International Organization, Faculty of Law, University of Geneva, Switzerland. ** Legal counsel, International Committee of the Red Cross (ICRC), Geneva. *** Lecturer, Faculty of Law, University of Geneva and Associate Professor, Catholic University of Lille.

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Volume I, Part II Conclusion and Entry into Force of Treaties, s.2 Reservations, Art.19 1969 Vienna Convention Alain Pellet From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Treaties, reservations and declarations — Customary international law — Travaux préparatoires — Object & purpose (treaty interpretation and) — Pacta sunt servanda

(p. 405) 1969 Vienna Convention Article 19 Formulation of reservations A State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation unless: (a) the reservation is prohibited by the treaty; (b) the treaty provides that only specified reservations, which do not include the reservation in question, may be made; or (c) in cases not failing under subparagraphs (a) and (b), the reservation is incompatible with the object and purpose of the treaty A. The freedom to formulate reservations in the Vienna Convention—summary presentation 409 The eventful history of the provisions relating to reservations in the Convention 409 A controversial legal regime 418 Customary status and new travaux of the ILC 427 B. Prohibited reservations 432 The scope of clauses prohibiting reservations 433 The explicit prohibition on reservations 435 The implicit prohibition of reservations—the permissibility of specified reservations 437 The effect of the formulation of a reservation which is prohibited by the treaty 441 C. Reservations which are incompatible with the object and purpose of the treaty 443 The notion of object and purpose of the treaty 445 The meaning of the expression ‘object and purpose of the treaty’ 446 The application of the criterion 451 Reservations to clauses on compulsory dispute settlement 452 Reservations to general human rights treaties 454 Reservations relating to the application of internal law 455 Vague and general reservations 457 Reservations relating to provisions reflecting customary norms 460 Reservations to provisions which express jus cogens rules 464 The assessment of the compatibility of a reservation with the object and purpose of a treaty and its consequences 469 The ability to examine the compatibility of a reservation with the object and purpose of the treaty 469 The consequences of the incompatibility of a reservation with the object and purpose of a treaty 474

(p. 406) Bibliography General bibliography on reservations:1 Åkermark Spiliopoulou, Sia, ‘Reservations Clauses in Treaties Concluded within the Council of Europe’, ICLQ, 1999, pp 479–514 —— ‘Reservations: Breaking New Grounds in the Council of Europe’, European Law Rev, 1999, pp 499–515 Bishop, William W., ‘Reservations to Treaties’, RCADI, 1961-II, vol. 103, pp 245–341 Bonet Perez, Jordi, Las reservas a los tratados internacionales (Barcelona: J. M. Bosch Editor, 1996), p 207 Bowett, Derek W., ‘Reservations to Non-Restricted Multilateral Treaties’, BYBIL, 1976– 77, pp 67–92 Droz, Georges A. L., ‘Les réserves et les facultés dans les Conventions de La Haye de droit international privé’, RCADI, 1969, vol. 58, pp 381–424 Edwards, Richard W. Jr, ‘Reservations to Treaties’, Michigan J Int'l L, 1989, pp 362–405 Fitzmaurice, Sir Gerald, ‘Reservations to Multilateral Conventions’, ICLQ, 1953, pp 1–26 Gaja, Giorgio, ‘Unruly Treaty Reservations’ in Le droit international à l'heure de sa codification. Études en l'honneur de Roberto Ago (Milan: Giuffrè, 1987), vol. I, pp 307– 30 Gamble, John King Jr, ‘Reservations to Multilateral Treaties: A Macroscopic View of State Practice’, AJIL, 1980, pp 372–94

Greig, Don W., ‘Reservations: Equity as a Balancing Factor?’, Australian Yearbook of Int'l L, 1995, pp 21–172 Hilpold, Peter, ‘Das Vorbehaltsregime der Wiener Vertragsrechtskonvention’ [‘The Régime of Reservations to Treaties in the Vienna Convention on the Law of Treaties’], AVR, 1996, pp 376–425 Holloway, Kaye, Les réserves dans les traités internationaux (Paris: LGDJ, 1958), p 378VI Horn, Frank, Reservations and Interpretative Declarations to Multilateral Treaties (The Hague: TMC Asser Instituut, 1988), p XXIX–514 Imbert, Pierre-Henri, Les réserves aux traités multilatéraux. Evolution du droit et de la pratique depuis l'avis consultatif donné par la Cour internationale de Justice le 28 mai 1951 (Paris: Pedone, 1979), p 503 Kappeler, Dietrich, Les réserves dans les traités internationaux (Basle: Verlag für Recht und Gesellschaft, 1958), p XVI–101 Koh, Jean Kyongun, ‘Reservations to Multilateral Treaties: How International Legal Doctrine Reflects World Vision’, Harvard Int'l LJ, 1982, pp 71–116 Majoros, Ferenc, ‘Le régime de réciprocité de la Convention de Vienne et les réserves dans les conventions de La Haye’, JDI, 1974, pp 73–100 Malkin, H. William, ‘Reservations to Multilateral Conventions’, BYBIL, 1926, pp 141–62 McRae, Donald M., ‘The Legal Effect of Interpretative Declarations’, BYBIL, 1978, pp 155–73 Nisot, Joseph, ‘Les réserves aux traités et la Convention de Vienne du 23 mai 1969’, RGDIP, 1973, pp 200–6 Owen, Marjorie, ‘Reservations to Multilateral Treaties’, Yale LJ, 1928–29, pp 1086–114 Pellet, Alain, ‘La CIJ et les réserves aux traités—Remarques cursives sur une révolution inachevée’, Liber Amicorum Judge Shigeru Oda (The Hague: Kluwer, 2002), pp 481–514 —— ‘Les réserves aux conventions sur le droit de la mer’ in La mer et son droit— Mélanges offerts à Laurent Lucchini et Jean-Pierre Quéneudec (Paris: Pedone, 2003), pp 501–20 (p. 407) —— and Müller, Daniel, ‘Reservations to Treaties: An Objection to a Reservation is Definitely not an Acceptance’ in E Cannizzaro (ed), The Law of Treaties Beyond the Vienna Convention, Essays in Honour of Professor Giorgio Gaja (Oxford: Oxford University Press, 2011), pp 37–59 Redgwell, Catherine, ‘Universality or Integrity? Some Reflections on Reservations to General Multilateral Treaties’, BYBIL, 1993, pp 245–82 Riquelme Cortado, Rosa, La reservas a los tratados—Formulación y ambigüedades del regimen de Viena (Murcia: Universidad de Murcia, 2004), p 433 Ruda, José M., ‘Reservations to Treaties’, RCADI, 1975-III, vol. 146, pp 95–218 Sapienza, Rosario, Dichiarazioni interpretative unilaterali e trattati internazionali (Milan: Giuffrè, 1996), p 291 Sucharipa-Behrmann, L., ‘The Legal Effects of Reservations to Multilateral Treaties’, ARIEL, 1996, pp 67–88 Swaine, Edward T., ‘Reserving’, Yale J Int'l L, 2006, vol. 31, pp 307–66 Szafarz, Renata, ‘Reservations to Multilateral Treaties’, Polish Yearbook of Int'l L, 1970, pp 239–316 Sztucki, Jerzy, ‘Some Questions Arising from Reservations to the Vienna Convention on the Law of Treaties’, GYBIL, 1977, pp 277–305 Treves, Tullio (ed.), ‘Six Studies on Reservations’, Communicazioni e Studi, 2002, vol. XXII, pp 3–174 Winkler, Agnes, Zulässigkeit und Rechtswirkungen von Vorbehalten nach der Wiener Vertragsrechtskonvention [Permissibility and Effects of Reservations under the Vienna Convention on the Law of Treaties] (Hamburg: Verlag Dr Kovac, 2007), p 310 Zemanek, Karl, ‘Some Unresolved Questions Concerning Reservations in the Vienna Convention on the Law of Treaties’ in Essays in International Law in Honour of Judge Manfred Lachs (The Hague: Martinus Nijhoff, 1984), pp 323–36 See also Bibliography annexed to A. Pellet, Second Report to the ILC on Reservations to Treaties, 1996, updated in 1999, A/CN.4/478/Rev.1 (YILC, 1999, vol. II, Part One, pp 139–50) General studies on reservations in human rights treaties:Baratta, Roberto, ‘Should Invalid Reservations to Human Rights Treaties Be Disregarded?’, EJIL, 2000, pp 413–25 Baylis, Elena A., ‘General Comment 24: Confronting the Problem of Reservations to Human Rights Treaties’, Berkeley J Int'l L, 1999, pp 277–329 Boerefijn, Ineke, ‘Impact of the Law on Treaty Reservations’ in Menno T. Kamminga and M. Scheinin (eds), The Impact of Human Rights Law on General International Law (Oxford: Oxford University Press, 2009), pp 63–97 Coccia, Massimo, ‘Reservations to Multilateral Treaties on Human Rights’, California Western Int'l LJ, 1985, pp 1–51 Cohen-Jonathan, Gérard, ‘Les réserves dans les traités institutionnels relatifs aux droits de l'homme: nouveaux aspects européens et internationaux’, RGDIP, 1996, pp 915–49 Frouville, Olivier de, L'intangibilité des droits de l'Homme en droit international: régime conventionnel des droits de l'Homme et droit des traités (Paris: Pedone, 2004), p XII-561, esp. pp 274–410 Gardner, J. P. and Chinkin, C. (eds), Human Rights as General Norms and a State's Right to Opt Out—Reservations and Objections to Human Rights Conventions (London: British Institute of International and Comparative Law, 1997), p xxix–207 Giegerich, Thomas, ‘Vorbehalte zu Menschenrechtsabkommen: Zulässigkeit, Gültigkeit und Prüfungskompetenzen von Vertragsgremien. Ein konstitutioneller Ansatz’ [‘Reservations to Human Rights Agreements: Admissibility, Validity and Jurisdiction of Human Rights Bodies—A Constitutional Approach’], ZaöRV, 1995, pp 713–78 (English summary pp 778–82)(p. 408) Golsong, Héribert, ‘Les réserves aux instruments internationaux pour la protection des droits de l'homme’, Colloque de Louvain, Les clauses échappatoires en

matière d'instruments internationaux relatifs aux droits de l'homme (Brussels: Bruylant, 1982), pp 23–42 Goodman, Ryan, ‘Human Rights Treaties, Invalid Reservations and State Consent’, AJIL 2002, pp 531–60 —— ‘Human Rights Treaties, Invalid Reservations and State Consent’ in Michael K. Addo (ed.), International Law of Human Rights (Aldershot: Ashgate/Dartmouth, 2006), pp 417–46 Graefrath, Bernhard, ‘Vorbehalte zu Menschenrechtsverträgen, Neue Projekte und alte Streitfragen’ [‘Reservations to Human Rights Treaties, New Drafts and Old Controversy’], Humanitäres Völkerrecht, 1996, pp 68–75 Imbert, Pierre-Henri, ‘La question des réserves et les conventions en matière de droits de l'homme’, Actes du 5ème colloque international sur la Convention européenne des droits de l'homme (1980) (Paris: Pedone, 1982), pp 97–140 —— ‘Reservations and Human Rights Conventions’, Human Rights Rev, 1981, pp 28–60 Korkelia, Konstantin, ‘New Challenges to the Regime of Reservations under the International Covenant on Civil and Political Rights’, EJIL, 2002, pp 437–77 Lijnzaad, Liesbeth, Reservations to UN Human Rights Treaties: Ratify and Ruin? (Dordrecht: TMC Asser Institut/Martinus Nijhoff, 1994), p XV–468 Pellet, Alain and Müller, Daniel, ‘Reservations to Human Rights Treaties: Not an Absolute Evil…’, in U Fastenrath, R Geiger, D-E Khan, A Paulus, S von Schorlemer, Ch Vedder (eds), From Bilateralism to Community Interest, Essays in Honour of Bruno Simma (Oxford: Oxford University Press, 2011), pp 521–51 Rama-Montaldo, Manuel, ‘Human Rights Conventions and Reservations to Treaties’ in Héctor Gros Espiell Amicorum Liber—Personne humaine et droit international (Brussels: Bruylant, 1997), vol. II, pp 1261–77 Redgwell, Catherine J., ‘Reservations to treaties and Human Rights Committee General Comment No. 24(52)’, ICLQ, 1997, pp 390–412 Schabas, William, ‘Reservations to Human Rights Treaties: Time for Innovation and Reform’, Annuaire canadien de droit international, 1994, pp 39– 81 Shelton, Dinah, ‘State Practice on Reservations to Human Rights Treaties’, Canadian Human Rights Yearbook, 1983, pp 205–34 Simma, Bruno, ‘Reservations to Human Rights Treaties—Some Recent Developments’ in Hafner, Loibl, Rest, SucharipaBehrmann, and Zemanek (eds), Liber Amicorum Professor Seidl-Hohenveldern—in Honour of His 80th Birthday (The Hague: Kluwer, 1998), pp 659–82 Tyagi, Yogesh, ‘The Conflict of Law and Policy on Reservations to Human Rights Treaties’, BYBIL, 2000, pp 181–258 Zemanek, Karl, ‘Some Unresolved Questions Concerning Reservations in the Vienna Convention on the Law of Treaties’ in Études de droit international en l'honneur du Juge Manfred Lachs (The Hague: Martinus Nijhoff, 1984), pp 323–36 More particularly concerning Article 19: Buffard, Isabelle and Zemanek, Karl, ‘The “Object and Purpose” of a Treaty: An Enigma?’, ARIEL, 1998, pp 311–43 Gaja, Giorgio, ‘Il regime della convenzione di Vienna concernente le riserve inammissibili’ in Studi in onore di Vincenzo Starace (Naples: Scientifica, 2008), pp 349–61 Sassi, Andrea, ‘General Reservations to Multilateral Treaties’ in T. Treves (ed.), op. cit., pp 91–110 Tomuschat, Christian, ‘Admissibility and Legal Effects of Reservations to Multilateral Treaties: Comments on Article 16 and 17 of the International Law Commission's Draft Articles on the Law of Treaties’, ZaöRV, 1967, pp 463–82

(p. 409) A. The freedom to formulate reservations in the Vienna Convention—summary presentation 1. Articles 19 to 23, concerning reservations, form part of the most often discussed provisions of the Vienna Convention, and the difficulties linked to their adoption in extremis failed to capsize the Conference.2 Resulting from a rather unbalanced compromise, they only imperfectly resolved the problems posed by one of the most controversial domains within the law of treaties—so much so that the ILC decided in 1994 to add the question of reservations to its agenda in an attempt to clarify once and for all the rules which are applicable to them.3 However, one could consider that with their lacunae and ambiguities, the Vienna rules in these matters have acquired global customary status.

The eventful history of the provisions relating to reservations in the Convention4 2. The institution of reservations has relatively recently emerged in international law. It is part of the general movement which has led to the ‘multilateralization’ of the modes to conclude treaties,5 and responds to the needs resulting from the enlargement of the ‘international community of States’: the growth in the number of States which are potential parties to multilateral conventions concluded on the universal level has led to the quest for an equilibrium between the search for universality and the concern for preservation of the treaty's integrity. 3. Despite some uncertainties, the traditional rules applicable to reservations relied upon the requirement of unanimous consent among the other parties to the treaty. A reservation was only ‘valid [if] it was accepted by all the contracting parties without exception’.6 This system of unanimity preserved its ‘undisputed value as a (p. 410) principle’,7 at the international level at least, until the intervention of the well-known Advisory Opinion of the International Court of Justice (ICJ) of 1951 in the Case concerning Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide.8 This conception, ‘directly inspired by the notion of contract’,9 considerably restricted the ability to make reservations: this was not possible unless accepted by all other parties to the treaty,10 in the absence of which the author of the reservation remained outside the conventional circle.

References 11

4. This system was not without merit:11 aside from its obvious simplicity, it preserved the integrity of the treaty and guaranteed control by the States parties (or signatories)12 on the validity or opportunity of reservations. Moreover, the customary rule on which it was based was purely supplementary to consent and the parties remained free to derogate from it through the inclusion of clauses on reservations or by derogating in another manner.13 5. On a regional level, the system of unanimity was nonetheless in competition with the panAmerican practice,14 which was more flexible and more favourable towards the formulation of reservations. This practice partially inspired the ICJ when it rendered the Advisory Opinion in 1951 from which the Vienna regime emanates. This ‘regional derogation’ from the traditional rule finds its origin in the Havana Convention of 20 February 1928,15 and has been explained in the following terms by a report approved by the Council of the Panamerican Union of 4 May 1932: 1. The treaty shall be in force, in the form in which it was signed, as between those countries which ratify it without reservations, in the terms in which it was originally drafted and signed; 2. It shall be in force as between the Governments which ratify it with reservations and the signatory States which accept the reservations in the form in which the treaty may be modified by said reservation; (p. 411) 3. It shall not be in force between a Government which may have ratified with reservations and another which may have already ratified, and which does not accept such reservations.16

References 6. Limited to the western hemisphere, this system, which did not a priori aspire to substitute the universal system of unanimity,17 distinguished itself in a profound manner due to the fact that, while entirely preserving the requirement of consent of other States parties, it facilitated accession to pan-American conventions to the detriment of their integrity by not conferring on other States a type of veto to the participation of the signatory State, which resulted in a sort of ‘bilateralization’ of the application of multilateral Conventions.18 7. There is no doubt that the pan-American system was present in the minds of the ICJ judges when they answered the request for an Advisory Opinion formulated by the UN General Assembly in 1950 on the issue of Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide.19 However, whereas the judges of the minority saw therein a derogation from the general rule in force,20 those of the majority found therein a source of inspiration,21 which furthered the ‘jurisprudential revolution’ which they initiated.22

References 8. Asked by Resolution 478 (V) of 16 November 1950 whether a State which has formulated a reservation to the Convention on Genocide can ‘be regarded as being a party to the Convention while still maintaining its reservation if the reservation is objected to by one or more of the Parties to the Convention but not by others’,23 the Court responded in the affirmative with a majority of seven votes against five,24 ‘if the reservation is compatible with the object and purpose of the Convention’.25 (p. 412) 9. At the same time, the Court specified in its response to the second question asked by the General Assembly:26 a) that if a party to the Convention objects to a reservation which it considers to be incompatible with the object and purpose of the Convention, it can in fact consider that the reserving State is not a party to the Convention; b) that if, on the other hand, a party accepts the reservation as being compatible with the object and purpose of the Convention, it can in fact consider that the reserving State is a party to the Convention.27 In addition, the Court explained in the reasoning of its Advisory Opinion: Finally, it may be that a State, whilst not claiming that a reservation is incompatible with the object and purpose of the Convention, will nevertheless object to it, but that an understanding between that State and the reserving State will have the effect that the Convention will enter into force between them, except for the clauses affected by the reservation.28 By doing this, the Court clearly rejected the theory of absolute sovereignty and the principle of unanimity. 10. Generally speaking, the Advisory Opinion of 1951 was badly received by the doctrine29 and, paradoxically, encountered strong resistance in the ILC. While the Court had adopted a resolutely innovative solution, taking into account the aspiration towards greater flexibility which had manifested itself in the General Assembly, the ILC maintained a conservative approach and for the first time behaved as the advocate of the traditional principle of unanimity. 11. Since his First Report in 1950, James L. Brierly, first Special Rapporteur on the Law of Treaties, has briefly evoked the question of reservations and pronounced clearly in favour of the unanimity rule,30 which was accepted with barely any discussion by the Commission.31 Following a request from the General Assembly,32 the ILC commenced work in 1951 on the 33

Special Report of James L. Brierly,33 in which he insisted, on the one hand, on the necessity ‘to maintain the integrity of international multilateral conventions’ and, on the other hand, on the necessity to ensure ‘the widest possible acceptance of it’.34 He con(p. 413) cluded that the best solution would be to include explicit provisions adapted to the different types of treaties, of which he gave some examples in an Annex to the Report.35 In its Report of 1951, the Commission noted: the criterion of the compatibility of a reservation with the object and purpose of a multilateral convention, applied by the International Court of Justice to the Convention on Genocide, is not suitable for application to multilateral conventions in general. It involves a classification of the provisions of a convention into two categories, those which do and those which do not form part of its object and purpose. It seems reasonable to assume that, ordinarily at least, the parties regard the provisions of a convention as an integral whole, and that a reservation to any of them may be deemed to impair its object and purpose.36 12. The Commission—commenting entirely on the point that ‘multilateral conventions are so diversified in character and object that, when the negotiating States have omitted to deal in the text of a convention with the admissibility or effect of reservations, no single rule uniformly applied can be wholly satisfactory’37—recommended no less than a procedure which, while making the issue more precise and complete in certain aspects, purely and simply illustrated the system of unanimity.38 This position was to a great degree similar to the one taken in the Joint Dissenting Opinion to the Advisory Opinion of the ICJ.39 13. After long debates,40 the Sixth Committee of the General Assembly adopted with a narrow majority41 the text which would become Resolution 598 (VI) of 12 January 1952, which has been described as ‘one of the fundamental documents in the history of the law of treaties’.42 Although the text is slightly sibyllic and does not formally abandon the unanimity principle, it in fact confirms the position of the ICJ,43 at least with regard to conventions concluded in the future and for which the Secretary-General is the depository. Nonetheless, with respect to anterior treaties, the traditional principle remained applicable until the adoption by the General Assembly of Resolution 1452 B (XIV) of 7 December 1959,44 which expanded the rules of 1952 to all conventions concluded under the auspices of the UN. This was the triumph of the flexible system recommended by the Court in 1951. 14. The resistance of the ILC was more durable. However, the reports of Sir Hersch Lauterpacht (1953 and 1954)45 and Sir Gerald Fitzmaurice (1956)46 constituted the swan (p. 414) song of the unanimity system which, starting from 1962 with the First Report of Sir Humphrey Waldock,47 faded away definitively to the benefit of the ‘flexible system’, issued in the Advisory Opinion of 1951 and confirmed, with non-negligible modifications, by the Vienna Conference in 1969. 15. Starting from the principle that if it is not prohibited by the treaty itself, explicitly or implicitly, a ‘State is free, when signing, ratifying, acceding to or accepting a treaty, to formulate a reservation’,48 but it has to ‘…have regard to the compatibility of the reservation with the object and purpose of the treaty’,49 Waldock referred clearly to the criteria put forward by the ICJ in 1951 and rejected by the Commission in the same year. Nevertheless, ‘although also of the opinion that there is value in the Court's principle as a general concept’, he stated his hesitations vis-à-vis this eminently subjective notion and refused to ‘us[e] it as a criterion of a reserving State's status as a party to a treaty in combination with the objective criterion of the acceptance or rejection of the reservation by other States’.50 16. As stated in paragraph 4(b)(ii) of draft Article 18: The consent, express or implied, of any other State which is a party or a presumptive party to a multilateral treaty shall suffice, as between that State and the reserving State, to establish the admissibility of a reservation not specifically authorized by the treaty, and shall at once constitute the reserving State a party to the treaty with respect to that State.51 Inversely, ‘the objections shall preclude the entry into force of the treaty as between the objecting and the reserving States, but shall not preclude its entry into force as between the reserving State and any other State which does not object to the reservation’.52 17. Despite strong reluctance among a minority of its members, the Commission rallied to the principle of the flexible system but, in their detail, independently of some formal modifications and a global simplification of presentation,53 the propositions by Waldock were transformed, in an important manner, by the Commission.54 18. In accordance with the position of its Special Rapporteur, the Commission held ‘that the Court's principle of “compatibility with the object and purpose of the treaty” is one suitable for adoption as a general criterion of the legitimacy of reservations to multilateral treaties and of objections to them’.55 As a result, paragraph 1(d) of draft Article 18 applies the principle of the freedom to formulate reservations ‘unless:…(d) In the case where the treaty is silent concerning the making of reservations, the reservation is incompatible with the object and purpose of the treaty’.56 Simultaneously, the ILC foresaw that ‘[a]cceptance of a reservation by any State to which it is open to become a party to the treaty constitutes the reserving State a party to the treaty in relation to such State’, (p. 415) while an objection based on the incompatibility of the reservation with the object and purpose of the treaty ‘precludes the entry into force of the treaty as between the objecting and the reserving State, unless a contrary intention shall have been expressed by the objecting State’.57 19. Nevertheless, the purely consensual system maintained by Sir Humphrey was altered by the inclusion of the eminently subjective criterion of compatibility with the object and purpose 58

of the treaty,58 without the respective role of either being clearly defined. This ambiguity, which has never been entirely removed, has been the source of many discussions arising as a result thereof and of a certain number of difficulties but it has undoubtedly allowed for the adoption of the system and is perhaps even the explanation of its relative success. 20. Notwithstanding this ambiguity—or perhaps thanks to it!—the draft of the Commission was favourably received during the debates in the General Assembly.59 The ‘flexible’ system, put forward by the Court since 1951, has henceforth substituted the traditional principle of unanimity and has not been questioned since. 21. However, some non-insignificant arrangements were added to the draft in the second reading after the Fourth Report by Sir Humphrey Waldock presented to the Commission in 1965.60 In his report, he proposed the revision of the draft Articles taking into account the observations of the governments61 which, while approving, on the whole, the ‘flexible’ system retained by the Commission in 1962,62 showed some degree of perplexity and division of opinions regarding the exact role of the criterion of compatibility of reservations with the object and purpose of the treaty in the global consensual mechanism retained by the Commission.63 22. Facing these divergences, the Special Rapporteur firmly maintained the principle retained by the Commission referring to the fact that, on the one hand, a reservation incompatible with the object and purpose of the treaty would be contrary to the principle of good faith and, on the other hand, it was highly improbable that the criterion ‘would exercise a material influence in inhibiting participation in multilateral treaties’.64 As a result, he proposed a new formulation for paragraph 1 of draft Article 19 in order to reaffirm in a positive manner the principle expressed in 1962: ‘[w]here a treaty is silent on the question of reservations, reservations may be proposed provided that they are compatible with the object and purpose of the treaty…’.65 Compatibility remains a condition for the (p. 416) validity of a reservation, in contrast with the conditions for the validity of an objection,66 contrary to the position adopted by the Court in 1951.67 23. Save for the last editorial amendments in 1966,68 the final text of the Articles relating to reservations was adopted by the ILC in 1965,69 although the final commentary was not published until the following year together with the entire draft.70 The Commission did not go back on the general economy of the draft, and the ‘flexible’ system, retained in 1962, was never put into question again. Conversely, after long and difficult debates,71 important modifications were added to the new propositions of the Special Rapporteur. 24. The two most notable changes are the following: (1) Article 16, previously limited to the ‘formulation of reservations’, made compatibility with the object and purpose of the treaty one of the general conditions to which the right to formulate a reservation is subordinated according to the principle retained by the Advisory Opinion of 1951. 72 Nevertheless the previous ambiguity 73 was far from removed since, in its commentary, the Commission noted that: The admissibility or otherwise of a reservation under paragraph (c), on the other hand, is in every case very much a matter of the appreciation of the acceptability of the reservation by the other contracting States; and this paragraph has, therefore, to be read in close conjunction with the provisions of article 17 regarding acceptance of and objection to reservations. 74 (2) A specification was introduced in paragraph (4)(b) of Article 17 which provides that: An objection by another contracting State to a reservation precludes the entry into force of the treaty as between the objecting and reserving States unless a contrary intention is expressed by the objecting State. 75 That opened a gateway for the possibility for the State author of the reservation and for the objecting State to be nevertheless bound by the treaty. Simultaneously the Commission confirmed that an objection does not necessarily have to be motivated by the incompatibility of the reservation with the object and purpose of the treaty.76 25. Fruit of a slow maturation, the ILC draft consecrated the triumph of ‘flexibility’ over the principle of unanimity and framed it in a globally satisfactory way in spite of the (p. 417) ambiguities and persistent lacunae. Even so, it did not give full satisfaction to the advocates of ‘absolute sovereignty’, especially the USSR and its allies, who obtained new and important satisfactions in Vienna,77 since the text which was ultimately adopted not only upheld the ‘flexible’ system but also actually increased flexibility on a number of important points. 26. Hence: • the Conference adopted an amendment suggested originally by Poland, 78 with regard to Article 19(b), 79 in order to authorize, if necessary, supplementary reservations to a treaty enumerating certain tacit reservations if this enumeration was not exhaustive; paragraph (c) was likewise modified as a consequence; and • moreover, after a Soviet amendment, 80 the presumption posed by Article 17, paragraph (4)(b) of the ILC draft 81 was inversed to the corresponding Article 82 of the Convention which adopts the principle according to which the objection to a reservation does not impede the entry into force of the treaty between the reserving State and the objecting State, unless the latter has ‘explicitly expressed’ a contrary intent; Article 21(3) was likewise modified as a result. Interestingly, the Expert Consultant, Sir Humphrey Waldock, did not oppose this change, although it was far from insignificant, considering that ‘the problem was merely that of formulating a rule one way or the other’. 83

27. The following conclusions may be drawn from the long and tortuous history of the Vienna rules relating to reservations: • Although it concerns a topic which is by nature ostensibly technical, the legal regime of reservations lies at the heart of fundamental controversies linked to the procedure of the elaboration of treaties; it touches on the equilibrium between the interest of States to preserve their sovereignty and the necessity of international cooperation in a world which is at once divided and interdependent. • The pendulum between these two preoccupations has finally come to rest—under the influence of eminently ‘sovereign-minded’ States—in the direction of an expansive licence to formulate and, simultaneously, object to reservations. • The difficult consensus on this point was reached at the cost of, largely deliberate, lacunae and ambiguities which, without doubt, explain the affection of States for the ‘Vienna regime’.

(p. 418) A controversial legal regime84 28. As Paul Reuter wrote in his Tenth Report on the Law of Treaties concluded between States and International Organizations or between two or more International Organizations, ‘the question of reservations has always been a thorny and controversial issue, and even the provisions of the Vienna Convention have not eliminated all these difficulties’85 and, notably, does not in itself allow for a conclusion to the eternal debate whether one ought to encourage or discourage reservations. 29. Whether one is pro or contra reservations appears to have little connection with rational considerations and is more akin to ‘religious war’: for some, reservations are an absolute evil because they cause injury to the integrity of the treaty; conversely, for others they facilitate a broader cohesion and are, thereby, a factor of universality. 30. The debate—which is focused on reservations to normative treaties to the exclusion of those which envisage synallagmatic rights and duties for the parties—is fixed since the Advisory Opinion of the ICJ and its terms stand in remarkable relief against the opposition between the majority and the dissenting judges in the case concerning Reservation to the Genocide Convention: The object and purpose of the Genocide Convention imply that it was the intention of the General Assembly and of the States which adopted it that as many States as possible should participate. The complete exclusion from the Convention of one or more States would not only restrict the scope of its application, but would detract from the authority of the moral and humanitarian principles which are its basis.86 To the contrary, for the judges in the minority: It is therefore not universality at any price that forms the first consideration. It is rather the acceptance of common obligations—keeping step with like-minded States— in order to attain a high objective for all humanity…In the interests of the international community, it would be better to lose as a party to the Convention a State which insists in face of objections on a modification of the terms of the Convention, than to permit it to become a party against the wish of a State or States which have irrevocably and unconditionally accepted all the obligations of the Convention.87 These conventions [‘multilateral conventions of a special character’],88 by reason of their nature and of the manner in which they have been formulated, constitute an indivisible whole. Therefore, they must not be made the subject of reservations, for that would be contrary to the purposes at which they are aimed, namely, the general interest and also the social interest.89 31. This clear-cut opposition of views calls for three comments: • it manifests itself from the very origin of the controversy in connection with a human rights treaty; hence it is relevant in the subcategory of normative treaties concerning which the debate has recently re-emerged; 90 (p. 419) • the two ‘camps’ start from exactly the same premise (the objectives pursued by the Convention in the interest of all mankind) to end in radically opposing conclusions (reservations to the Convention should/should not be accepted); • everything has been said since 1951; hence the corroded dialogue of the deaf has persisted for more than 50 years without interruption and without fundamental evolution in the arguments from either side. 91 32. In reality, everything is a matter of measure, equilibrium, and circumstances. The prerequisite of universality coerces to open as broadly as possible the rights of States to formulate reservations which, evidently, facilitate universal participation in treaties. Nonetheless, this liberty of States to formulate reservations should not be unlimited. It collides with the other prerequisite, equally imperative, to preserve what forms the essence itself of the treaty. It would be absurd for example to allow a State to become a party to the Convention on Genocide with the exclusion of Articles I, II, and III, being the only substantial provisions of the Convention. 33. The issue can also be seen as a problem of consent.92 By definition, the law of treaties is consensual. ‘Treaties are binding by virtue of the will of States to be bound by them. They are legal acts, involving the operation of human will.’93 States are bound because they have expressed their consent to be bound. They are free to engage themselves and they are only

bound by those obligations which they have accepted voluntarily and in full knowledge of the cause. ‘No State can be bound by contractual obligations it does not consider suitable.’94 This applies also to reservations.95 As the ICJ has put it: It is well established that in its treaty relations a State cannot be bound without its consent, and that consequently no reservation can be effective against any State without its agreement thereto.96

References 34. The rules applicable to reservations thus have to realize a double equilibrium:(p. 420) • between the prerequisites of universality and the integrity of the treaty, on the one hand; • between the liberty of the consent of the reserving State and that of the other States parties, on the other hand, while it is understood that these two ‘dialectic pairs’ otherwise overlap to a large extent. Undoubtedly, that is what the ‘Vienna regime’ strives for. Starting from a presumption in favour of the validity of reservations (the chapeau of Art. 19), thereby abandoning the principle of unanimity (Art. 20(4)) and establishing that of tacit acceptance instead (Art. 20(5)), the 1969 Convention facilitates the formulation of reservations and, as a result, a treaty participation as broad as possible. By generously opening the possibility to object and to modulate the effects of their objections to other contracting parties (Arts 20(4)(b) and 21), it preserves the liberty to consent of those latter parties. And, by excluding reservations which are incompatible with the object and purpose of the treaty (Art. 19(c)), it guarantees, if not the integral application of its provisions, at least the integrity of its essential content. In addition— and, perhaps, above all—the Vienna rules, auxiliary to the will of the States, only apply in the absence of special clauses, which parties remain free to insert in the treaty in order to derogate from it or specify it.97 35. Nevertheless, this equilibrium is contested by the advocates of parochial approaches of ‘specialized’ fields of international law and, singularly, by ‘human rightists’,98 who invoke the specifity of human rights treaties to contest the applicability of the Vienna regime to reservations formulated in their respect.99 Actually, here one finds again the same arguments as those advanced by the advocates of integrity, on the one side, and universality, on the other side—but expressed with even more vehemence—while the whole debate in reality is not based on the adaptation of the reservations regime to human rights treaties, but centres around questions as to whether these treaties lend themselves to the formulation of reservations and what the powers of the monitoring bodies created by these treaties are in this matter.100 36. There is no doubt that the reservations regime accepted by the 1969 Convention had been envisaged by its authors as first and foremost applicable to all multilateral treaties, regardless of their object, with the only exceptions being certain treaties concluded with the intent of applying them integrally and of constitutive acts of international organizations, for which limited derogations have been foreseen by paragraphs 2 and 3 of Article 20.101 And the absence of any mention of human rights treaties102 (and, more generally, of the entirety of normative treaties—to which the preceding comments are (p. 421) fully applicable, notably in environmental matters) is even more significant because, on the one hand, the flexible system retained by the authors of the Convention directly emanates from the ICJ Advisory Opinion,103 which precisely dealt with a human rights treaty, and, on the other hand, the ILC had posed itself since the Vienna Conference the question regarding the possibility of exceptions (other than the two which had been explicitly retained),104 in order to answer in the negative.105 37. Basing itself on these arguments, the ILC has, in its Preliminary Conclusions on Reservations to Normative Multilateral Treaties Including Human Rights Treaties',106 vigorously reaffirmed the unity of the legal regime incorporated in Articles 19 to 23 of the 1969 and 1986 Vienna Conventions: 2. The Commission considers that, because of its flexibility, this regime is suited to the requirements of all treaties, of whatever object or nature, and achieves a satisfactory balance between the objectives of preservation of the integrity of the text of the treaty and universality of participation in the treaty; 3. The Commission considers that these objectives apply equally in the case of reservations to normative multilateral treaties, including treaties in the area of human rights and that, consequently, the general rules enunciated in the above-mentioned Vienna Conventions govern reservations to such instruments.107 38. Adopted at the initiative of the Special Rapporteur,108 these Conclusions, well-received as a whole by the States during the examination of the ILC report in the General Assembly in 1997,109 have in return been very coldly received by the human rights monitoring bodies.110 However, their criticisms related much more to the positions taken by the Commission on the competences of the monitoring bodies regarding reservations than to the reaffirmation of the unity of the reservations regime.111 (p. 422) 39. In this respect, while fully recognizing that the monitoring bodies created by the treaties ‘are competent to comment upon and express recommendations with regard, inter alia, to the admissibility of reservations by States, in order to carry out the functions assigned to them’,112 the ILC underlined: that, in the event of inadmissibility of a reservation, it is the reserving State that has

the responsibility for taking action. This action may consist, for example, in the State's either modifying its reservation so as to eliminate the inadmissibility, or withdrawing its reservation, or forgoing becoming a party to the treaty.113 40. It is in respect of this point that the human rights organs have reacted most negatively.114 In fact, the position of the ILC aimed clearly at stopping a deviation which, if not ‘supranational’, was at least not very respectful of State consent that lies at the basis of all conventional commitment,115 initiated by the European Commission and Court of Human Rights and broadcasted via General Comment No. 24 of the Human Rights Committee. 41. Although, at first, these bodies showed themselves to be extremely hesitant about controlling the validity of the reservations made by the States parties,116 the turning point was established by the Report adopted by the European Commission on 5 May 1982 in the Temeltasch case,117 in which, relying on the ‘particular nature’ of the Convention, the Commission: considers that the very system of the Convention confers on it the competence to consider whether, in a specific case, a reservation or an interpretative declaration has or has not been made in accordance with the Convention.118 As a result, the Commission, on the one hand, qualified the Swiss interpretative declaration relating to Article 6(3)(e) of the Convention as a reservation119 and, on the other hand, held that this was not in conformity with the provisions of Article 64 of the Convention.120

References (p. 423) 42. Six years later, in its Belilos decision of 29 April 1988, the Strasbourg Court adopted the position of principle of the Commission.121 In turn, it proceeded to ‘re-qualify’ the ‘interpretative declaration’ of Switzerland (relating to Art. 6(1) of the Convention)122 as a reservation and estimated that: the declaration in question does not satisfy two of the requirements of Article 64 of the Convention, with the result that it must be held to be invalid,123 after having observed that: The Court's competence to determine the validity under Article 64 of the Convention of a reservation or, where appropriate, of an interpretative declaration has not given rise to dispute in the instant case. That the Court has jurisdiction is apparent from Articles 45 and 49 of the Convention…and from Article 19 and the Court's case-law (see, as the most recent authority, the Ettl and Others judgment of 23 April 1987, Series A no. 117, p. 19, § 42).124 Since then, the European Commission and the Court of Human Rights have made this jurisprudence an almost routine application and extended it to the reservations expressed by the States to their competence.125

References 43. The positions of the monitoring bodies instituted by the universal instruments relating to human rights aligned themselves, mutatis mutandis, to those of the Strasbourg organs, as shown in General Comment No. 24 of the Human Rights Committee in particular,126 in which it affirms that it: necessarily falls to the Committee to determine whether a specific reservation is compatible with the object and purpose of the Covenant.127 (p. 424) 44. Moreover, invoking an alleged doctrine of ‘severability’128 the Committee considers that: The normal consequence of an unacceptable reservation is not that the Covenant will not be in effect at all for a reserving party. Rather, such a reservation will generally be severable, in the sense that the Covenant will be operative for the reserving party without benefit of the reservation.129 The Committee applied this principle in its decision of 31 December 1999.130

References 45. This very absolute position is different from that of the Strasbourg organs which, in the cases decided so far, arrived at the same result but after having sought the intention of the reserving State. Thus, by claiming to seek the intentions of the State in question, they preserve at least the appearance of assent.131 And, since the legally impeccable position of the ILC (which leaves with the reserving State the concern of drawing conclusions from a declaration of invalidity),132 risks posing difficult practical problems, the Strasbourg solution has been endorsed by the ILC in the provisional version of the Guide to practice adopted in 2010, which lays down the ‘positive rebuttable presumption’ according to which: ‘When an invalid reservation has been formulated, the reserving State or the reserving international organization is considered a contracting State or a contracting organization or, as the case may be, a party to the treaty without the benefit of the reservation, unless a contrary intention of the said State or organization can be identified.’133

References 46. Moreover—and independently of the problems, which arose after its adoption (but still badly solved), related to the role of the monitoring bodies in its implementation—the Vienna regime is, due to its suppleness and its flexibility, applicable to all multilateral, either normative or synallagmatic, treaties, whatever their object, including instruments relating to human rights. Failing to ensure their absolute integrity, which would hardly be compatible with the very definition of reservations, it nonetheless preserves the essence of their contents and guarantees that their nature is not distorted.

References 47. Moreover and more generally, although they constitute an undeniable success, the provisions of the Vienna Convention on reservations have not solved all problems arising from this legal institution, both indispensible and vilified, offering necessary relief from the all too constraining rigidity of the principle pacta sunt servanda. 48. As Professor Bruno Simma has written: (p. 425) What we are looking for in the Convention is actually two different things: First, we want to know the conditions of the admissibility vel non of a reservation; second, if according to these rules a particular reservation is to be deemed inadmissible, we look for guidance as to the courses available to another contracting party which is unwilling to accept this state of things. Unfortunately, on both of these issues, our analysis of the Vienna Convention yields only partial and unsatisfactory results.134 To these two major lacunae, others are added, of lesser weight, as well as a number of ambiguities.135 It is sufficient here to highlight the reasons for these deficiencies, some of which have been deliberated and are perhaps a pledge of realism. 49. The great doctrinal debate which expresses the main difficulties is that which opposes the advocates of what one has qualified as the ‘permissibility school’,136 on the one hand, to the ‘opposability school’, on the other hand.137 50. The key question, on which the Vienna Convention barely sheds any light, is to know whether the validity of the reservations is an objective question or whether it resorts under the subjective appreciation of the other States parties. It is expressed in the following terms by Sir Derek Bowett: The issue of ‘permissibility’ is the preliminary issue. It must be resolved by reference to the treaty and is essentially an issue of treaty interpretation; it has nothing to do with the question of whether as matter of policy, other Parties find the reservations acceptable or not. The consequence of finding a reservation ‘impermissible’ may be either that the reservation alone is a nullity (which means that the reservation cannot be accepted by a Party holding it to be impermissible) or that the impermissible reservation nullifies the State's acceptance of the treaty as a whole.138 51. This particularly authoritative opinion represents the quintessence of the positions of the ‘permissibility school’ (or of the ‘objective admissibility’). On the opposite side, however, the authors who belong to the opposability school consider that in the system retained by the Vienna Convention, ‘the validity of a reservation depends solely on the acceptance of the reservation by another contracting State’. Consequently, Article 19(c) was described ‘as a mere doctrinal assertion, which may serve as a basis for guidance to States regarding acceptance of reservations, but no more than that’.139 52. For the advocates of the opposability thesis, the answers to the questions relating to the admissibility of the reservations, entirely subjective, are to be found in the provisions of Article 20 of the 1969 and 1986: ‘[t]he validity of a reservation depends, under (p. 426) the Convention's system, on whether the reservation is or is not accepted by another State, not on the fulfilment of the condition for its admission on the basis of its compatibility with the object and purpose of the treaty’.140 To the contrary, the supporters of the admissibility thesis regard as accepted that an invalid reservation is not opposable to the other States. Consequently: the issue of ‘opposability’ is the secondary issue and pre-supposes that the reservation is permissible. Whether a Party chooses to accept the reservation, or object to the reservation, or object to both the reservation and the entry into force of the treaty as between the reserving and objecting States is a matter for a policy decision and, as such, not subject to the criteria governing permissibility and not subject to judicial review.141 53. These doctrinal controversies have important practical repercussions with regard to the system of objections to reservations. Thus, for example, under the terms of the opposability thesis, the dispute-settlement bodies, judicial or otherwise, would have to abstain from rendering an opinion on the admissibility of a reservation in the absence of objections by the other parties.142 On the contrary, according to the admissibility thesis, an objection to a reservation, which is incompatible with the object and the purpose of the treaty or prohibited by this treaty, has no particular effect, as the reservation is, in any event, null and void. Another problem which the admissibility and opposability schools solve in an opposite manner is whether, to the principle of the freedom of expressing reservations, corresponds an equivalent faculty to make objections to the reservations. Here, still, the Convention is tacit and leaves the door open to the most extreme theses.

54. Without aiming to present an exhaustive list, the principal uncertainties resulting from the provisions of the 1969 Convention regarding reservations are the following:143 (1) What is the exact meaning of the expression ‘compatibility with the object and purpose of the treaty’? (2) When does a Convention have to be regarded as a restricted multilateral treaty (Art. 20(2))? (3) Is an invalid reservation null in itself and does its nullity entail that of the expression of the State's consent to be bound (or does it not)? (4) Is an invalid reservation null independently of the objections which can be made? (5) Can the other contracting States or international organizations accept a reservation which is formulated in spite of the provisions of Article 19 of the Vienna Convention? (6) What are the effects of such an acceptance? (7) If the invalidity of such a reservation has been established (by whom?), can the reserving State replace it with another reservation or withdraw from the treaty? (8) Are the contracting States free to formulate objections independently of the validity of the reservation? (p. 427) (9) Do they have to or should they indicate the motives for their objections? (10) What precisely are the effects of an objection to a valid reservation? (11) And to an invalid reservation? (12) In which measure do these effects distinguish themselves from those of an acceptance of a reservation when the objecting State does not neatly express its intention that the treaty does not enter into force between itself and the reserving State? (13) Can the reserving State in such a case exclude the applicability of treaty provisions other than those that are envisaged by the reservation? (14) And is the objecting State bound to accept these conclusions? (15) What is the precise meaning of the expression ‘to the extent of the reservation’? (16) What are the effects of reservations on the entry into force of the treaty? So many questions to which the Vienna Convention does not give an answer—or answers in an ambiguous way—that can raise, and do raise, real practical problems.

Customary status and new travaux of the ILC 55. It is not in doubt that, during their adoption, the Vienna rules relating to reservations displayed to a large extent a de lege ferenda character. Their adoption and their systematic implementation by the States and the bodies charged with supervising the implementation of the human rights treaties (in spite of the doctrinal criticisms) have, however, consolidated these rules, the customary status of which is today mostly indisputable. 56. The deep division of the ICJ judges during the adoption of the Advisory Opinion of 1951 on the Reservations to the Genocide Convention,144 the very sharp doctrinal criticisms of which this Advisory Opinion was the object, the ILC's late and hesitant acceptance of the flexible system which ended up overriding the traditional unanimity rule,145 and the considerable amendments added in extremis to the Commission's draft by the Vienna Conference146 show it straightforwardly: the Vienna rules relating to reservations are the fruit of controversies which are evidence of their largely de lege ferenda character at the time when they were adopted.147

References 57. The ILC's 1966 final report is hardly enlightening on this point: in accordance with its practices, the Commission does not make a distinction between what, in its draft Articles is, on the one hand, part of codification stricto sensu, and of progressive development of international law, on the other hand.148 58. In any case, one can assume that the passing of time made the question whether the rules laid down in 1969 regarding reservations concerned codification or progressive development largely obsolete. Indeed, the Convention has consolidated or ‘crystallized’ prior initiated evolutions which had already largely begun;149 while, however, during the 26 years ‘that have elapsed since the Vienna Convention was opened for signature, the (p. 428) rules regarding reservations stated in that treaty have come to be seen as basically wise and to have introduced desirable certainty’.150 59. This consolidation is due to several factors. In particular, these standards corresponded precisely to the state and the needs of the international community at the time when they were adopted and were part of a general tendency aiming to confer flexibility and more openness on multilateral conventions. It is moreover significant that, in spite of the very sharp debates to which their adoption gave rise, they were adopted with quasi-unanimity by the Vienna Conference.151 These considerations have elsewhere led States largely to conform to these provisions, whether or not they ratified the Convention,152 and even if, like France, they did not sign it.153 60. Although disputes on the matter are less numerous than the existing legal uncertainties might lead one to think, the international arbitrators or judges who had to decide such cases often referred expressly or by implication to the provisions of the Convention. Thus, the Arbitral Tribunal called to decide the Anglo-French Continental Shelf case did not hesitate to 154

invoke and apply the rules of the Convention,154 even when it had been agreed that the applicable rules were those in force in 1965–66.155 In the same way, although the ICJ did not expressly attribute customary status to the Vienna rules relating to reservations, it has, by its orders of 2 June 1999 in the cases concerning the Legality of the use of force brought by Yugoslavia against Spain and the United States, decided to strike these cases off the role, because of the reservations formulated by the defendants to Article IX of the Genocide Convention, thus considering, implicitly but necessarily, that they were not contrary to the object and purpose of the treaty.156 In 2006, the Court reaffirmed the applicability of the object and purpose test, without however mentioning Article 19(c) of the Convention, and considered that a reservation made by Rwanda (p. 429) excluding the jurisdiction of the Court under the Genocide Convention and under the Convention on the Elimination of All Forms of Racial Discrimination was not contrary to the object and purpose of the said conventions.157 More significant still is the jurisprudence of the human rights bodies which, in spite of their supposed reticence with regard to the Vienna regime, apply it without any hesitation.158 Thus, in 1994, the presidents of the organs created on the basis of the international instruments relating to human rights, recommended that these bodies: state clearly that certain reservations to international human rights instruments are contrary to the object and purpose of those instruments and consequently incompatible with treaty law.159

References 61. This same belief is evidenced by the drafting itself of the reservation clauses appearing in the international instruments. In spite of their diversity, the constant concern of the draftsmen to promote a reservations system modelled on that of Article 19 of the Vienna Conventions is very striking: many of the human rights treaties expressly refer to the object and purpose as a criterion for the appreciation of the legality of reservations.160 Moreover, it is evident from the travaux préparatoires of the treaties which do not contain reservations clauses that this silence must be interpreted as a renvoi, implicit but deliberate, to the customary law regime enshrined by the Convention of 23 May 1969.161 62. Hence there is no doubt that ‘there is a general agreement that the Vienna principle of “object and purpose” is the test’.162 It is thus rightly so that, in its preliminary Conclusions of 1997, the ILC estimated that: Articles 19 to 23 of the Vienna Convention on the Law of Treaties of 1969 and of the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations of 1986 govern the regime of reservations to treaties and that, in particular, the object and purpose of the treaty is the most important of the criteria for determining the admissibility of reservations.163 (p. 430) Concerning in particular Article 19, the ILC adopted in 2006 draft guideline 3.1 reproducing faithfully the wording of the corresponding provision of the 1986 Vienna Convention (which includes the hypothesis of reservations formulated by international organizations).164 It constitutes a further element which strengthens the customary character of this provision. 63. In any event, the Convention did not freeze the law.165 Even independently of the fact that it allows many ambiguities to remain, that it contains lacunae on sometimes extremely important points, and that it could not foresee rules applicable to difficulties which did not, or seldom, arise at the time of its development,166 the adoption of the Convention constituted the starting point of new practices which are currently not consolidated or are consolidated in a far from ideal fashion.167 64. Regarding reservations, the Vienna Convention constitutes the end point of an evolution initiated long ago, which consists of the maximal facilitation of participation in multilateral conventions while preserving their purpose and object. At the same time, the Convention forms the starting point of a multiform and not always coherent practice which, as a whole, appears to answer better to considerations of political opportunity, based on an approach on a case-by-case basis, than to firm legal convictions. 65. ‘Despite what has been written on the subject, most reservations can be dealt with perfectly well by application of the provisions in Articles 19–23.’168 For this reason States display a rarely failing compliance to the Vienna regime. However, due to the extreme practical importance of the question, they are constrained in its implementation by its lacunae and ambiguities.169 This is why the General Assembly has, in its Resolution 48/31 of 9 December 1993, endorsed ‘the decision of the International Law Commission to include in its agenda the [topic] “The law and practice relating to reservations to treaties”, ultimately simplified to “Reservations to treaties” ’.170 66. In 1994, the Commission appointed a Special Rapporteur for this topic.171 From 1995 until 2010, the Rapporteur presented 16 reports to the ILC which have not completely exhausted the subject,172 thereby evidencing its extreme complexity. (p. 431) 67. Concerning the debate on the preliminary report of the Special Rapporteur (1995), the Commission upheld his conclusions in the following terms: a)  The Commission considers that the title of the topic should be amended to read ‘Reservations to treaties’; b)  The Commission should try to adopt a guide to practice in respect of reservations. In accordance with the Commission's statute and its usual practice, this guide would take the form of draft articles whose provisions, together with commentaries, would be

guidelines for the practice of States and international organizations in respect of reservations; these provisions would, if necessary, be accompanied by model clauses; c)  The above arrangements shall be interpreted with flexibility and, if the Commission feels that it must depart from them substantially, it would submit new proposals to the General Assembly on the form the results of its work might take; d)  There is a consensus in the Commission that there should be no change in the relevant provisions of the 1969, 1978 and 1986 Vienna Conventions.173 68. These conclusions principally call for two remarks: (1) Contrary to habit, the Commission immediately decided on the form of its draft: it would prepare a ‘Guide to Practice’ and not a draft convention; the objective of which would be to orient State practice by clearing up existing uncertainties but not putting into question again what was achieved in 1969. 174 (2) While doing so, the ILC would confirm its opinion—shared by quasi-all of its members, already expressed in 1993, 175 and almost unanimously approved by the States—according to which the Vienna regime is globally satisfactory and should be completed and explained but not modified; since then, this resolution has been strictly observed. 176 The motives for this ‘modest approach’ were made explicit by the Special Rapporteur in his preliminary report of 1995. 177 69. Conforming to these orientations, between 1997 and 2010 the Commission adopted 199 drafts of guidelines and three model clauses accompanied by commentaries concerning the definition of reservations, procedures of formulation and withdrawal of reservations, procedure concerning acceptances and objections, and the validity of reservations.178

(p. 432) B. Prohibited reservations 70. Article 19 constitutes without any doubt the masterpiece of the law on reservations established by the Vienna Convention.179 It puts forward ‘the general principle that the formulation of reservations is permitted’,180 essential for the ‘flexible system’, and it is not an exaggeration to say that it reverses on this point the traditional presumption that resulted from the system of unanimity,181 for the avowed purpose of facilitating an as large as possible membership and, as a result, the universality of treaties. 71. In this regard, the text of Article 19, directly emanating from Waldock's proposals, is the opposite of the drafts established by the Special Rapporteurs on the law of treaties who preceded him. These Special Rapporteurs all shared the reverse presumption and expressed negatively or in a limited way the principle according to which a reservation cannot be formulated (or ‘made’)182except when certain conditions are fulfilled.183 Sir Humphrey for his part presented the principle as the ‘the power to formulate, that is, to propose, a reservation’, a power belonging to the State ‘in virtue of its sovereignty’.184 72. This ability is however not unlimited.185 On the one hand, it results from the text itself that the formulation of reservations might be incompatible with the object of certain treaties, either because they are restricted to a small groups of States—an hypothesis which takes into consideration Article 20(2) of the Convention, which reverts to the system of unanimity concerning these instruments186—either, in the framework of treaties with a universal vocation, because the parties intend to make the integrity of the Convention prevalent to its universality or, in any case, limit the ability of States to formulate reservations. On the other hand, on this point as on all others, the Vienna Convention is only supplementary to the will of States and nothing impedes negotiators from inserting into a treaty ‘reservation clauses’ which limit or modulate the principle ability stipulated in Article 19.187 It is thus probably excessive to talk about a ‘right to reservations’, even if the Convention itself starts from the principle that a presumption in this sense exists. 73. Such is the significance of the title of Article 19 (‘Formulation of reservations’), confirmed by the first sentence of the provision: ‘A State…can formulate a reservation, (p. 433) unless…’. Certainly, using the verb ‘can’, ‘[l]a clause liminaire de l'article 19 reconnaît un droit aux États; mais il ne s'agit que du droit de “formuler” des réserves’.188 74. The words ‘formulate’ and ‘formulation’ have been chosen with care. They signify that, if it is up to the State which intends to associate the expression of its consent to be bound by a reservation indicating how it intends to modulate its participation to the treaty,189 this formulation does not suffice in and of itself: the reservation is not ‘made’, does not resort its effects, from the sole fact of its declaration. It is not ‘established’190 unless certain procedural conditions—very few obligatory, it is true191—are fulfilled, but still it has to respect the basic conditions expressed in the three paragraphs of Article 19, which is clearly shown by the words ‘at least’.192 This is the reason for which an amendment by China aiming to replace the words ‘formulate a reservation’ by ‘make a reservation’193 was dismissed by the Drafting Committee of the Vienna Conference.194 As Waldock noted: there is an inherent ambiguity in saying…that a State may ‘make’ a reservation; for the very question at issue is whether a reservation formulated by one State can be held to have been effectively ‘made’ unless and until it has been assented to by the other interested States.195

The scope of clauses prohibiting reservations 75. In draft Article 17(1)(a) which he submitted to the ILC in 1962, Waldock distinguished three hypotheses:

• the reservations ‘prohibited by the terms of the treaty, or excluded by the nature of the treaty or by the established usage of an international organization’; • those that are not affected by the provisions of a clause limiting the ability to make reservations; or • by those that authorize certain reservations. 196 (p. 434) To the difference of reservations incompatible with the object and purpose of the treaty,197 the common point in these three cases is that ‘when a reservation is formulated which is not prohibited by the treaty, the other States are called upon to indicate whether they accept or reject it but, when the reservation is one prohibited by the treaty, they have no need to do so, for they have already expressed their objection to it in the treaty itself.’198 76. Although this typology was taken up again under a slightly different form by the Commission,199 it was unnecessarily complicated and, at a level of sufficiently great generality in which the editors of the Convention had to place themselves, it was pointless to operate with the distinction between the two first hypotheses put forward by the Special Rapporteur.200 In draft Article 18(2), which the Special Rapporteur proposed in 1965 in view of the observations of the governments, he had to limit himself to distinguishing between the reservations expressly prohibited by the treaty (or ‘by the rules in force in an international organisation’)201 and those which are implicitly prohibited as a result of the authorization of certain reservations by the treaty.202 It is this binary distinction which one finds again, in a neat form,203 in paragraphs (a) and (b) of Article 19 of the Convention, (p. 435) without any distinction being made according to which the treaty, totally or partially, prohibits or authorizes reservations.204

The explicit prohibition on reservations 77. According to Professor Tomuschat, the prohibition in paragraph (a) as drafted, has to be understood as covering both the explicit as well as the implicit prohibitions on reservations.205 This interpretation finds justification in the travaux préparatoires of this provision: • in its original draft, proposed by Waldock in 1962, 206 it had been specified that it concerned ‘explicitly prohibited’ reservations, a specification which was abandoned in 1965 without explanation by the Special Rapporteur and without the discussions in the Commission being very enlightening in this respect; 207 • in the commentary to draft Article 16 adopted during the second reading in 1965, the ILC seems in effect to place ‘[r]eservations expressly or impliedly prohibited by the terms of the treaty’ at the same level. 208 78. This interpretation is however disputable. The idea that certain treaties can, ‘by nature’, exclude reservations had been discarded in 1962 by the Commission, which rejected the proposal in this sense made by Waldock.209 It is therefore hard to see which prohibitions could result ‘implicitly’ from the treaty, apart from the cases covered by paragraphs (b) and (c)210 of Article 19,211 whereas one has to assume that paragraph (a) only concerns reservations which are expressly prohibited by the treaty. Moreover, this interpretation is only compatible with the marked liberalism which impregnates the entirety of the Convention's provisions relating to reservations. 79. No problem—other than to know whether the declaration at hand constitutes a reservation—arises if the prohibition is clear and straightforward, in particular if the prohibition is general, albeit understood that there are relatively few examples,212 even if certain examples are well known, such as that in Article 1 of the League of Nations Charter: (p. 436) The original Members of the League of Nations shall be those of the Signatories…as shall accede without reservation to this Covenant.213 Equally, Article 120 of the Rome Statute of the International Criminal Court of 1998 stipulates: No reservations may be made to this Statute.214 In addition, by virtue of Article 26(1) of the Basel Convention of 1989 on the Control of Transboundary Movements of Hazardous Wastes and their Disposal: No reservation or exception may be made to this Convention.215

References 80. In any case, it may happen that the prohibition is more ambiguous. Hence, in the words of paragraph 14 of the Final Act of the Conference which adopted in 1961 the European Convention on International Commercial Arbitration, ‘the delegations taking part in negotiation of the European Convention … declare that their respective countries do not intend to make any reservations to the Convention’.216 In a case of this type, one (p. 437) could think that the reservations are not strictly speaking prohibited, but that if a State formulated one, the other parties would logically have to object to it.

References 81. More often the prohibition is partial and concerns one or more determined reservations or one or more categories of reservations. The most simple (but rather rare) hypothesis is that clauses enumerate the provisions of the Convention to which reservations are prohibited.217 This is the case of Article 42 of the Refugee Convention of 28 July 1951,218 or of Article 26 of

the IMO Convention of 1972 on containers.

References 82. More complicated is the hypothesis in which the treaty does not prohibit reservations to specific provisions, but excludes instead certain categories of reservations.219 In fact, these exclusions220 raise problems (of interpretation)221 of the same nature as those evoked by the criterion of compatibility with the object and purpose of the treaty,222 which certain clauses explicitly actually take over.223 The ILC, underlying the unity of the regime of reservations under the Convention,224 emphasized that such clauses prohibiting certain categories of reservations fall also under the provisions of Article 19(a).

The implicit prohibition of reservations—the permissibility of specified reservations 83. The origin of paragraph (b) of Article 19 dates back to paragraph 3 of draft Article 37 submitted to the ILC in 1956 by Fitzmaurice: In those cases where the treaty itself permits certain specific reservations, or a class of reservations, to be made, there is a presumption that any other reservations are excluded and cannot be accepted.225 It is this idea that Waldock resumed in draft Article 17(1)(a), which he proposed in 1962, and the Commission retained in draft Article 18(1)(c), which it adopted in the same year226 and which, with some minor editorial modifications, became Article 16(b) of the draft of 1966,227 and later Article 19 of the Convention. 84. This was not without controversy as a matter of fact, since during the Vienna Conference multiple amendments envisaged abolishing this provision228 under the pretexts that it was ‘too (p. 438) rigid’,229 superfluous in that it duplicated paragraph (a),230 or was not confirmed by practice;231 all of which reasons have in the meantime been withdrawn or rejected.232 85. The only modification made to paragraph (b) was introduced by a Polish amendment, which was accepted by the Editorial Committee of the Vienna Conference ‘in the interest of greater clarity’.233 This apparently innocent change should not obscure the very large practical bearing of this specification which, in reality, inverses the presumption retained by the Commission and—in conformity with the aim obstinately pursued by the eastern countries to maximally facilitate the formulation of reservations—thereby allows for reservation whereas the negotiators have taken the precaution of expressly indicating the provisions to which a reservation is permissible.234 Nevertheless this amendment does not exonerate a reservation which is neither explicitly authorized nor implicitly permitted from respecting the criterion of compatibility with the object and purpose of the treaty.235 86. Consequently Article 19(b) is not only the negative expression of paragraph (a). It is not sufficient that some reservations are expressly permitted by the treaty for every other reservation to be permitted. Nor is it sufficient that a treaty expressly authorizes the formulation of some reservations for all others to be prohibited. According to the wording of paragraph (b), the treaty must authorize exclusively the formulation of specific reservations (‘réserves déterminées’), which creates further problems of identification.236 The ILC held that: a reservation should be considered specified if a reservation clause indicated the treaty provisions in respect of which a reservation was possible or…indicated that reservations were possible to the treaty as a whole in certain specific aspects.237 (p. 439) In practice, the typology of clauses allowing for specific reservations is comparable to that of prohibiting provisions and raises the same kind of problems concerning the determination a contrario of reservations that cannot be formulated:238 • those that authorize reservations to determined provisions, explicitly and limitatively enumerated; • others that authorize specific categories of reservations. 87. Article 12(1) of the Geneva Convention of 1958 on continental shelves seems to constitute an illustration of the first of these categories: At the time of signature, ratification or accession, any State may make reservations to articles of the Convention other than to articles 1 to 3 inclusive.239 As Sir Ian Sinclair noted, ‘Article 12 of the 1958 Convention did not provide for specified reservations, even though it may have specified articles to which reservations might be made’240 and, as a consequence, neither the scope nor the effects of this authorization are self-evident as shown by the judgment of the ICJ in the cases concerning the Delimitation of the North Sea Continental Shelf,241 and, especially, the arbitral award rendered in 1977 in the Anglo-French Continental Shelf case.242

References 88. It is different when the reservation clause defines categories of authorized reservations. An example can be found in Article 39 of the General Arbitration Act of 1928: 1. In addition to the power given in the preceding article, a Party, in acceding to the

present General Act, may make his acceptance conditional upon the reservations exhaustively enumerated in the following paragraph. These reservations must be indicated at the time of accession. 2. These reservations may be such as to exclude from the procedure described in the present Act: (a)  Disputes arising out of facts prior to the accession either of the Party making the reservation or of any other Party with whom the said Party may have a dispute; (b)  Disputes concerning questions which by international law are solely within the domestic jurisdiction of States; (c)  Disputes concerning particular cases or clearly specified subject-matters, such as territorial status, or disputes falling within clearly defined categories. As the ICJ noted in its judgment of 1978 relating to the Aegean Sea Continental Shelf case: (p. 440) When a multilateral treaty thus provides in advance for the making only of particular, designated categories of reservations, there is clearly a high probability, if not an actual presumption, that reservations made in terms used in the treaty are intended to relate to the corresponding categories in the treaty, even though the States have not ‘meticulously followed the pattern’ provided for in the reservation clause.243

References 89. Another example, particularly famous and commented upon,244 of a clause authorizing reservations (and equally connected to the third category mentioned supra245) is supplied by Article 57 (ex Art. 64) of the European Convention of Human Rights: 1. Any State may, when signing this Convention or when depositing its instrument of ratification, make a reservation in respect of any particular provision of the Convention to the extent that any law then in force in its territory is not in conformity with the provision. Reservations of a general character shall not be permitted under this article. 2. Any reservation made under this article shall contain a brief statement of the law concerned. In this case, the possibility of formulating reservations is simultaneously limited by formal and substantial conditions, aside from the usual limitations ratione temporis;246 thus a reservation to the Rome Convention must: • refer to a particular provision in the Convention; • be justified by the state of legislation of its author at the moment of formulation of the reservation; • not to be ‘couched in terms that are too vague or broad for it to be possible to determine their exact meaning and scope’; 247 and • be accompanied by a brief account which allows appreciation of ‘the scope of the Convention provision whose application a State intends to prevent by means of a reservation’. 248 The appreciation of the realization of each of these conditions poses problems.

References (p. 441) 90. As noted with regard to the subject of prohibition of reservations with a general character, this wording ‘is not fundamentally different’249 from that retained for example by Article 26(1) of the Convention of the Council of Europe on extradition of 1957: Any Contracting Party may, when signing this Convention or when depositing its instrument of ratification or accession, make a reservation in respect of any provision or provisions of the Convention, even though one could therein see a general authorization (to the exclusion nevertheless of transversal reservations).250

References 91. As a matter of fact, a general authorization of reservations251 itself does not necessarily resolve all problems. Notably, it leaves open the questions whether other parties can nevertheless object to it,252 and whether these explicitly authorized reservations253 are subjected to the compatibility test with the object and purpose of the treaty.254

References

The effect of the formulation of a reservation which is prohibited by the treaty

92. It has always been understood that a reservation could not be formulated (and even less ‘made’) when a treaty clause prohibits it explicitly or implicitly.255 This logical postulate was never put into question by the ILC.256 It only recalled that the provisions of the (p. 442) Convention have a subsidiary character:257 ‘where the treaty itself deals with the question of reservations, the matter is concluded by the terms’258 of the treaty and when such a clause prohibits the envisaged reservation, it cannot be formulated, while in the opposite case, when it permits it, the question of its validity does not arise.259 The apparent simplicity of these common sense rules260 conceals no fewer delicate problems. Once the problems of the scope of a conventional prohibition on the formulation of reservations has been decided, the question arises what the possible effect is of a reservation formulated in spite of the clause which prohibits such reservations explicitly (para. (a) of Art. 19) or implicitly (para. (b)).

References 93. No provision in the Vienna Convention gives an explicit answer to this question, which is of great concrete importance, and the travaux préparatoires of Article 19261 shed no light in this regard.262 Perhaps this response appeared evident concerning paragraphs (a) and (b).263 But, if it is, there is no reason for not transposing it into the hypothesis, generally held to be much more mysterious, of paragraph (c): nothing in the text of the Convention or in the logic justifies different responses.264 However, the question of the effects of a reservation incompatible with the object and purpose of the treaty (hypothesis of para. (c)) has formed the object of long, rather inconclusive, debates, outside the travaux préparatoires of the Convention. It hence seems preferable to study it in its entirety, in junction with paragraph (c) of Article 19.265 94. It suffices to indicate at this stage that a number of commentators estimate that a reservation formulated in spite of a conventional prohibition is null and void,266 and assume that its formulation entails the invalidity of the expression of consent to being bound.267 If this is the case, these conclusions have to influence the response to the question ‘which are the effects of a reservation formulated despite the provisions of Article 19(c)?’.268

(p. 443) C. Reservations which are incompatible with the object and purpose of the treaty 95. ‘[I]n cases not failing under subparagraphs (a) and (b)’, Article 19(c) of the Convention excludes the formulation of reservations incompatible ‘with the object and purpose of the treaty’. This principle constitutes one of the elements fundamental to the flexible system laid out by the Vienna regime in that it tempers its ‘radical relativism’.269 Such relativism results from the pan-American system, which reduces multilateral conventions to a network of bilateral relations,270 while the principle of Article 19(c) allows the flexible system to avoid the rigidity resulting from the system of unanimity.271

References 96. However, it displays a subsidiary character only because it intervenes outside the hypotheses envisaged by paragraphs 2 and 3 of Article 20 of the Convention,272 and if the treaty itself does not regulate the fate of reservations. Paragraph (a) of Article 19 does not pose any problems in this regard: there is no doubt that a reservation explicitly prohibited by the treaty cannot be held valid under the pretext that it would be compatible with the object and purpose of the treaty.273 But what if the prohibition is implicit (hypothesis of para. (b))? 97. Despite appearances, the problem does not arise in the same manner in the second case. As indicated supra,274 the amendment by Poland to paragraph (b) adopted by the Vienna Conference in 1968 has limited the hypothesis of implicit prohibition of reservations solely to treaties which provide ‘that only specified reservations, which do not include the reservation in question, may be made’. It results therefrom that others can be made. But it would be, at least, paradoxical that they would be admitted more liberally when dealing with treaties that do not contain clauses on reservations.275 98. The modification made to paragraph (c) after the Polish amendment would otherwise seem to point in this direction. In the text of the ILC, paragraph (c) was edited as follows: c) In cases where the treaty contains no provisions regarding reservations, the reservation is incompatible with the object and purpose of the treaty.276 This followed the logic of paragraph (b) which prohibited the formulation of reservations other than those authorized by a clause on reservations. Since an authorization is no (p. 444) longer interpreted a contrario as automatically excluding other reservations, this formula could not be maintained;277 thus it was modified in favour of the current wording of the Drafting Committee of the Vienna Conference.278 As a result, ‘implicitly authorized’ reservations by the fact that they are not formally excluded by the treaty have to be compatible with the object and purpose of the treaty.279 This has been expressly recognized by the ILC in guideline 3.1.3.280 99. This is equally true for certain explicitly authorized reservations, if one accepts the idea that, among these, only those which are ‘specific’, ie as indicated by the ILC, reservations which are authorized by the treaty and the content of which is determined by the treaty,281 are legally valid without, on the one hand, having to be accepted by the other contracting States282 or, on the other hand, having to pass the compatibility test with the object and purpose of the treaty.283 In the Anglo-French Continental Shelf case, the arbitral tribunal estimated that Article 12 of the Geneva Convention on the Continental Shelf,284 which

authorizes certain reservations with specifying them: cannot be understood to compel States to accept in advance any kind of reservation to articles other than articles 1 to 3. Such an interpretation of article 12 would almost give contracting States the freedom to draft their own treaty, which would clearly go beyond the object of this article. Only if the article in question had authorized the formulation of specific reservations could it be understood that parties to the Convention had accepted in advance a specified reservation.285 In such a case, the admissibility of the reservation ‘cannot be assumed simply on the ground that it is, or purports to be, a reservation to an article to which reservations are permitted’.286 Its validity has to be assessed in the light of its compatibility with the object and purpose of the treaty.287

References (p. 445) 100. First applied in the matter of reservations in the Advisory Opinion of the ICJ in 1951,288 this notion has progressively been imposed and today has become the equilibrium point between the necessity of preserving the essential core of the treaty and the willingness to facilitate membership of an as large as possible number of States to multilateral conventions. However, while in the Opinion the criterion of compatibility with the object and purpose of the treaty applies to the formulation of reservations as well as to that of the objections,289 in the Convention it is limited to reservations only: Article 20 does not restrict the ability of other contracting States to formulate objections.290 101. There is no doubt that today the criterion of validity of reservations reflects a customary rule which no one puts into question.291 Nevertheless, its content remains vague and the consequences of incompatibility with the object and purpose of the treaty are impregnated with distinct uncertainty.

The notion of object and purpose of the treaty 102. Two authors concluded a meticulous study dedicated to the notion of ‘the object and purpose of a treaty’ observing with regret ‘that the object and purpose of a treaty are indeed something of an enigma’.292 It is certain that the attempt in paragraph (c) of Article 19 to introduce an objective element in a largely subjective system is not entirely conclusive:293 ‘[t]he claim that a particular reservation is contrary to object and purpose is easier made than substantiated’.294 In their collective opinion, the dissenting judges of 1951 criticized the solution retained by the majority in the case concerning Reservations to the Genocide Convention by making reference to the fact that it does not ‘produce final and consistent results’295 and this had been one of the principal motives of the resistance of the ILC in regard to the flexible system retained by the ICJ in 1951: Even if the distinction between provisions which do and those which do not form part of the object and purpose of a convention be regarded as one that it is intrinsically possible to draw, the Commission does not see how the distinction can be made otherwise than subjectively.296 (p. 446) And Sir Humphrey Waldock himself, in his very important First Report on the law of treaties in 1962, still showed his hesitation on the compatibility of the reservation with the object and purpose of the treaty as a true ‘test’ of the validity of this reservation.297 This was no doubt a tactical prudence since the same Special Rapporteur ‘converted’ swiftly298 to the compatibility with the object and purpose of the treaty not only as a criterion of the validity of reservations but also as a key element to take into consideration in matters of interpretation.299

References 103. This criterion in fact presents great merit. And, notwithstanding the inevitable ‘margins of subjectivity’ limited however by the general principle of good faith, paragraph (c) of Article 19 provides without doubt a useful guideline allowing resolution of most problems which arise, in a reasonable manner.

The meaning of the expression ‘object and purpose of the treaty’ 104. The travaux préparatoires of this provision are not a great help in determining the meaning of the expression.300 As noted by one commentator,301 the commentary to draft Article 16 adopted in 1966 by the ILC, normally more circumstantial, is reduced to one paragraph and this one does not even make an allusion to the difficulties linked to the definition of the object and purpose of the treaty, or, very indirectly, by a cautious (or incautious?)302 reference to draft Article 17:303 ‘[t]he admissibility or otherwise of a reservation under paragraph (c), on the other hand, is in every case very much a matter of the appreciation of the acceptability of the reservation by the other contracting States’.304 (p. 447) 105. The discussion in the ILC on paragraph (c)305 and later in the Vienna Conference306 does not throw sufficient light on the meaning of the expression ‘object and purpose of the treaty’ at the end of this provision, nor do the other provisions of the Convention which use it. 106. There are seven of these Articles,307 of which one—Article 20(2)—concerns reservations. But none define the notion of the object and purpose of the treaty or offer particular ‘tracks’ to this end.308 All that can be deducted therefrom is that one should rather place oneself at a

sufficiently large level of generality: it is not a case of ‘analysing’ the treaty, of examining its provisions one after the other, but rather of discovering the ‘essence’, the global ‘project’. 107. There is little doubt that the expression ‘the object and purpose of the treaty’ covers well the same meaning in all these provisions: proof thereof is that Waldock—who can without exaggeration be considered as the ‘inventor’ or, at least, the ‘midwife’ of the right of reservations to treaties in the Vienna Convention—explicitly referred to these,309 to justify the inclusion of this criterion in paragraph (c) by a sort of reasoning a fortiori. Seeing that ‘the objects and purposes of the treaty…are criteria of fundamental importance for the interpretation…of a treaty’ and ‘the Commission has proposed that a State which has signed, ratified, acceded to, accepted or approved a treaty should, even before it comes into force, refrain from acts calculated to frustrate its objects’, it would be ‘somewhat strange if a freedom to make reservations incompatible with the objects and purposes of the treaty were to be recognized’.310 But this does not resolve the problem: we have a criterion, and a unique, polyvalent criterion; but not a definition of this criterion. 108. The international case-law does not provide a means to discern it. Although it is often used,311 what one finds therein are some useful indications, notably in the Opinion of the ICJ in 1951 on the Reservations to the Genocide Convention. It is however difficult (p. 448) to infer something remarkable from this relatively abundant jurisprudence concerning the method to follow in order to determine the object and purpose of a treaty. The Court proceeds often by simple affirmations312 and, when it shows itself anxious to justify its position, it follows an empirical approach. Moreover one can discover that the Court has deduced the object and purpose of a treaty: • from its title; 313 • from its preamble; 314 • from an Article placed at the head of the treaty which ‘must be regarded as fixing an objective, in the light of which the other treaty provisions are to be interpreted and applied’; 315 • from a treaty Article which shows ‘the major concern of each Contracting Party’ at the time of conclusion of the treaty; 316 • from its travaux préparatoires; 317 or • from its general architecture. 318 (p. 449) It is difficult, however, to regard this as a ‘method’ properly speaking: these disparate elements are taken into consideration, sometimes separately, sometimes together, and the Court forms a ‘general impression’, in which subjectivity inevitably plays a considerable part.319

References 109. To get round the inconvenience linked to these uncertainties, one wonders whether it would not be suitable to decompose the concept of ‘the object and purpose of the treaty’ by examining its object, on the one hand, and its purpose, on the other hand. Hence, during the discussion on the rule of pacta sunt servanda embodied in Article 55, Reuter mentioned that ‘the object of an obligation is one thing, while the purpose is another’.320 As has been noted, the distinction is common in the French doctrine (or francophone)321 while it awakens the scepticism of authors with German or English training.322 110. All the same, a (French) author convincingly shows that the international case-law ‘ne permet pas de trancher la question’.323 And hence, neither the object—defined as the very content of the treaty324—nor, even less, the purpose of the treaty—the intended result325— remain invariable in time, as the theory of the emergent purpose put forward by Sir Gerald Fitzmaurice clearly shows: ‘[t]he notion of object or [and?] purpose is itself not a fixed and static one, but is liable to change, or rather develop as experience is gained in the operation and working of the convention’.326 111. It is therefore hardly surprising that the endeavours of the doctrine to define a general method by which to determine the object and purpose of the treaty turn out to be disappointing. The most convincing attempt, by Ms Buffard and Mr Zemanek, suggests proceeding in two phases: in a first phase, it is convenient to have ‘recourse to the title, preamble, and, if available, programmatic articles of the treaty’; in the second, the conclusion thus reached prima facie has to be tested in the light of the text of the treaty.327 But the application of this seemingly logical method328 to concrete hypotheses hardly proves conclusive: the authors confess to being incapable of determining objectively and in a simple manner the object and the purpose of four out of five treaties or groups of retained treaties329 and conclude that the notion remains unquestionably an ‘enigma’.330

References (p. 450) 112. The other doctrinal endeavours are no more convincing even if the authors provide evidence of less modesty and often show themselves emphatic concerning the definition of the object and purpose of the treaty studied. Certainly these studies often concern human rights conventions which lend themselves easily to conclusions inspired by ideologically oriented attitudes, of which one of the manifestations consists in maintaining that all substantial provisions in these treaties reveal their object and purpose (which, pressed to its ultimate logic, amounts to excluding the validity of every reservation).331 113. Given the diversity of situations and their susceptibility to change over time,332 it seems

impossible to devise a single set of methods for determining the object and purpose of a treaty, and admittedly a certain amount of subjectivity is inevitable. However, that is not incongruous in law in general, and in international law in particular. Ultimately, this is a problem of interpretation: the ‘general rule on interpretation’ expressed in Article 31 of the Vienna Convention is applicable mutatis mutandis to the examination of the object and purpose of the treaty.333

References 114. As Ago mentioned during the ILC debates on draft Article 17 (Art. 19 in the Vienna Convention): The question of the admissibility of reservations could only be determined by reference to the terms of the treaty as a whole. As a rule it was possible to draw a distinction between the essential clauses of a treaty, which normally did not admit of reservations, and the less important clauses, for which reservations were possible.334 These are the two fundamental elements: the object and purpose can only be found by the examination of the treaty in its entirety;335 and this criterion leads to dismissal of reservations to ‘essential’ clauses336 and to these alone. 115. In other words, it is the ‘efficiency’,337 the ‘raison d’être'338 of the treaty, its ‘fundamental core’,339 that needs to be preserved. ‘It implies a distinction between all obligations (p. 451) in the treaty and the core obligations that are the treaty's raison d’être.'340 During its travaux concerning reservations, the ILC equally found merits in these criteria. In default of a definition of the object and purpose of the treaty, it considered that a ‘reservation is incompatible with the object and purpose of the treaty if it affects an essential element of the treaty that is necessary to its general thrust,341 in such a way that the reservation impairs the raison d’être of the treaty'.342 These are very general guidelines, but even if they do not allow for the resolution of all problems, applied in good faith and with a bit of common sense, they can certainly contribute to it.

References

The application of the criterion 116. In certain cases, the application of this criterion does not create any problem. It is selfevident that a reservation to the Genocide Convention by which a State reserves for itself the possibility of committing certain prohibited acts on its territory or certain parts thereof will be incompatible with the object and purpose of the Convention.343 In this spirit, for example, Germany and several European countries have explained as support for their objections to a reservation by Vietnam to the United Nations Convention against illicit traffic in narcotic drugs and psychotropic substances of 1988, that: The reservation made in respect of article 6 is contrary to the principle ‘aut dedere au iudicare’ which provides that offences are brought before the court or that extradition is granted to the requesting States. The Government of the Federal Republic of Germany is therefore of the opinion that the reservation jeopardizes the intention of the Convention, as stated in article 2 paragraph 1, to promote cooperation among the parties so that they may address more effectively the international dimension of illicit drug trafficking. The reservation may also raise doubts as to the commitment of the Government of the Socialist Republic of Viet Nam to comply with fundamental provisions of the Convention.344

References (p. 452) 117. The prohibited reservation may have a bearing on less contradictory provisions but is no less contrary to the object and purpose of the treaty of which it renders the application impossible.345 It is for this reason that only an interpretation made in good faith can result in establishing the object and purpose of the treaty and the conformity of a reservation with this rather mysterious criterion,346 it being understood that, to put it in the words of the ILC, ‘[s]uch a process undoubtedly requires more “esprit de finesse” than “esprit de géométrie,” like any act of interpretation, for that matter—and this process is certainly one of interpretation’.347 118. Following the Tenth Report of the Special Rapporteur on reservations,348 in 2007 the ILC adopted a series of guidelines relating to certain categories of reservations which pose specific problems,349 and which endeavour to circumscribe more precisely the notion of the object and purpose of a treaty in cases which particularly often raise problems.

Reservations to clauses on compulsory dispute settlement 119. In his First Report on the law of treaties, Fitzmaurice categorically stated: ‘[i]t is considered inadmissible that there should be parties to a treaty who are not bound by an obligation for the settlement of disputes arising under it, if this is binding on other parties’.350 His position, obviously inspired by the cold war debate on reservations to the Genocide Convention, is too sweeping; moreover, it was rejected by the International Court of Justice, which, in its orders of 2 June 1999 in response to Yugoslavia's requests for the indication of

provisional measures against Spain and against the United States in the cases concerning Legality of Use of Force, clearly recognized the validity of the reservations made by those two States to Article IX of the Genocide Convention of 1948, which gives the Court jurisdiction to hear all disputes relating to the Convention,351 even though some of the parties had considered that such reservations were not compatible with the object and purpose of the Convention.352 In its 2006 judgment in the case concerning Armed (p. 453) Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v Rwanda), the Court adopted the same position and considered that: Rwanda's reservation to Article IX of the Genocide Convention bears on the jurisdiction of the Court, and does not affect substantive obligations relating to acts of genocide themselves under that Convention. In the circumstances of the present case, the Court cannot conclude that the reservation of Rwanda in question, which is meant to exclude a particular method of settling a dispute relating to the interpretation, application or fulfilment of the Convention, is to be regarded as being incompatible with the object and purpose of the Convention.353

References 120. This conclusion is corroborated by the very common nature of such reservations and the erratic practice followed in the objections to them.354 On the other side, it is self-evident that, if the obligation of compulsory settlement is the very object of the treaty, a reservation which excludes it would be, without doubt, contrary to the object and purpose of such treaty. This is actually the solution recommended by the judges who, in their joint separate Opinion to the ICJ judgment in RDC v Rwanda, considered that: We believe it is now clear that it had not been intended to suggest that the fact that a reservation relates to jurisdiction rather than substance necessarily results in its compatibility with the object and purpose of a convention. Much will depend upon the particular convention concerned and the particular reservation. In some treaties not all reservations to specific substantive clauses will necessarily be contrary to the object and purpose of the treaty…Conversely, a reservation to a specific ‘procedural’ provision in a certain convention, could be contrary to the treaty's object and purpose.355 At the time of this judgment, the ILC Special Rapporteur had already proposed a draft guideline 3.1.13 which in substance corresponded to the position adopted by the Court as well as by the authors of the Joint Separate Opinion.356 This draft guideline was finally adopted by the ILC, with some modifications, in 2007.357 121. According to the Human Rights Committee, reservations relating to guarantees of implementation of the Covenant of 1966 on civil and political rights would in principle be incompatible with its object and purpose: These guarantees provide the necessary framework for securing the rights in the Covenant and are thus essential to its object and purpose.…The Covenant also envisages, for the better attainment (p. 454) of its stated objectives, a monitoring role for the Committee. Reservations that purport to evade that essential element in the design of the Covenant, which is also directed to securing the enjoyment of the rights, are also incompatible with its object and purpose. A State may not reserve the right not to present a report and have it considered by the Committee. The Committee's role under the Covenant, whether under article 40 or under the Optional Protocols, necessarily entails interpreting the provisions of the Covenant and the development of a jurisprudence. Accordingly, a reservation that rejects the Committee's competence to interpret the requirements of any provisions of the Covenant would also be contrary to the object and purpose of that treaty.358 With respect to the Optional Protocol, the Committee added: A reservation cannot be made to the Covenant through the vehicle of the Optional Protocol but such a reservation would operate to ensure that the State's compliance with that obligation may not be tested by the Committee under the first Optional Protocol. And because the object and purpose of the first Optional Protocol is to allow the rights obligatory for a State under the Covenant to be tested before the Committee, a reservation that seeks to preclude this would be contrary to the object and purpose of the first Optional Protocol, even if not of the Covenant. A reservation to a substantive obligation made for the first time under the first Optional Protocol would seem to reflect an intention by the State concerned to prevent the Committee from expressing its views relating to a particular article of the Covenant in an individual case.359 Based on this reasoning, the Committee, in the Rawle Kennedy case, held that a reservation made by Trinidad and Tobago excluding the Committee's competence to consider communications relating to a prisoner under sentence of death was not valid.360

References 122. The European Court of Human Rights has adopted a position just as radical. In the Loizidou case, it deduced from an analysis of the object and purpose of the Rome Convention ‘that States could not qualify their acceptance of the optional clauses thereby effectively

excluding areas of their law and practice within their “jurisdiction” from supervision by the Convention institutions’361 and that every restriction to its competence ratione loci or ratione materiae was incompatible with the nature of the Convention.362

References

Reservations to general human rights treaties 123. It is in the area of human rights that the discussions are most vivid, particularly concerning reservations made to general treaties such as the European, Inter-American, and African Conventions, the Covenants on Economic, Social and Cultural Rights or Civil and Political Rights. Regarding the latter, the Human Rights Committee declared in its celebrated (and disputable) General Comment No. 24: (p. 455) In an instrument which articulates very many civil and political rights, each of the many articles, and indeed their interplay, secures the objectives of the Covenant. The object and purpose of the Covenant is to create legally binding standards for human rights by defining certain civil and political rights and placing them in a framework of obligations which are legally binding for those States which ratify; and to provide an efficacious supervisory machinery for the obligations undertaken.363 Taken literally, this position leads to holding invalid every global reservation bearing on any one of the rights protected by the Covenant. However, such is not the position of the States parties which have not systematically formulated objections to reservations of this type364 and the Committee itself does not go that far since, in the paragraphs following the statement of its position of principle,365 it sets out in greater detail the criteria it uses to assess whether reservations are compatible with the object and purpose of the Covenant. It does not follow that, by its very nature, a general reservation bearing on one of the protected rights would be invalid as such.366

References 124. Likewise, regarding the Convention of 1989 on the Rights of the Child, a large number of reservations have been formulated to the provisions regarding adoption.367 As noted by one author, who can hardly be suspected of ‘anti-human rightism’: ‘[i]t would be difficult to conclude that this issue is so fundamental to the Convention as to render such reservations contrary to its object and purpose’.368

References 125. The ILC, having in mind the particular difficulties for identifying the object and purpose of general human right treaties—by contrast to treaties concerning particular rights, such as the Torture Convention or the Non-Discrimination Convention—proposed criteria in order to assess the validity of a reservation to such a convention, such as the indivisibility, interdependence, and interrelatedness of the rights set out in the treaty, the importance that the right or the provision which is the subject of the reservation has within the general thrust of the treaty, and finally the gravity of the impact of the reservation.369

References

Reservations relating to the application of internal law 126. Another question is raised frequently—and not only in the domain of human rights: can a State formulate a reservation to preserve the application of its internal law?370 Here (p. 456) again, a nuanced response is suited and it is certainly not possible to respond categorically in the negative as certain objections to reservations of this type would seem to suggest. For instance, several States have objected to the reservation formulated by Canada to the Convention on Environmental Impact Assessment in a Transboundary Context of 25 February 1991 on the grounds that the reservation ‘[r]ender[s] compliance with the provisions of the Convention dependent on certain norms of Canada's internal legislation’.371

References 127. This ground for objection is hardly convincing. Without doubt, according to Article 27 of the Vienna Convention,372 a party cannot ‘invoke the provisions of its internal law as justification for its failure to perform a treaty’. The assumption, however, is that the problem is settled, in the sense that the provisions in question are applicable to the reserving States; but that is precisely the issue. As one commentator rightly noted, relatively often a State formulates a reservation because the treaty imposes on it obligations which are incompatible with its internal law, which it is not in a position to amend,373 at least initially.374 Moreover, Article 57 of the European Convention on Human Rights not only authorizes a State party to formulate a reservation in cases where its internal law is in conflict with a Convention provision but restricts even that authority exclusively to instances where ‘any law then in force in its territory is not in conformity with the provision’.375

References

128. It is thus a nuanced solution which is retained by ILC draft guideline 3.1.11. According to the commentary, the function of this provision is: to establish that, contrary to an erroneous but fairly widespread perception, a reservation is not invalid solely because it aims to preserve the integrity of particular norms of internal law—it being understood that, as in the case of any reservation, those made with such an objective must be compatible with the object and purpose of the treaty to which they relate.376

(p. 457) Vague and general reservations 129. Article 19(c) of the Vienna Convention does not explicitly envisage this hypothesis. However, one has to consider that a general reservation is not compatible with the object and purpose of the Convention which results from the definition itself of reservations that their object is to exclude or to modify ‘the legal effect of certain provisions of the treaty in their application’ to their authors.377 Thus, it cannot be maintained that the effect of reservations could possibly be to prevent a treaty as a whole from producing its effects. And, although ‘across-the-board’ reservations are common practice, they are, as specified in draft guideline 1.1.1 of the ILC Guide to Practice,378 valid only if they purport ‘to exclude or modify the legal effect…of the treaty as a whole with respect to certain specific aspects…’. Furthermore, it follows from the inherently consensual nature of the law of treaties in general and the law of reservations in particular379 that, although States are free to formulate (not make)380 reservations, the other parties must be entitled to react by accepting the reservation or objecting to it. That is not the case if the text of the reservation does not allow its scope to be assessed.. 130. Therefore, the reference to the domestic law of the reserving State is not per se the problem381—as a matter of fact, there are examples of such reservations that have not raised and do not call for any objection382—but the frequent vagueness and generality of the reservations referring to domestic law, which make it impossible for the other States parties to take a position on them. Such was the spirit of an amendment presented by Peru to the Vienna Conference aiming at adding a paragraph (d), thus drafted, to the future Article 19: (d)  The reservation renders the treaty inoperative by making its application subject, in a general and indeterminate manner, to national law.383

References (p. 458) 131. Finland's objections to reservations by several States to the Convention on the Rights of the Child were certainly more solidly motivated on this ground than by a reference to Article 27 of the Convention of 1969.384 Thus, in response to the reservation of Malaysia which had accepted several provisions of the Convention on the Rights of the Child only ‘if they are in conformity with the Constitution, national laws and national policies of the government of Malaysia’,385 Finland held that the ‘broad nature’ of this reservation left open ‘to what extent Malaysia commits itself to the Convention and to the fulfilment of its obligations under the Convention’.386 Equally, Thailand's declaration to the effect that it ‘does not interpret and apply the provisions of this Convention [of 1966 on the elimination of all forms of racial discrimination] as imposing upon the Kingdom of Thailand any obligation beyond the confines of the Constitution and the laws of the Kingdom of Thailand’,387 prompted an objection on the part of Sweden that, in so doing, Thailand was making ‘the application of the Convention subject to a general reservation referring to the confines of national legislation, without specifying its contents’.388

References 132. Some of the so-called ‘sharia reservations’ give rise to the same objection389 of which a topical example is provided by the reservation by which Mauritania accepted the New York Convention of 1979 on the Elimination of All Forms of Discrimination Against Women ‘in each and every one of its parts which are not contrary to Islamic Sharia’.390 Here again, the problem lies not in the very fact that Mauritania is invoking a (p. 459) law of religious origin which it applies391 but, as Denmark observed, ‘the general reservations with reference to the provisions of Islamic law are of unlimited scope and undefined character’.392 As a result, as the United Kingdom put it, such a reservation ‘which consists of a general reference to national law without specifying its contents does not clearly define for other States Parties to the Convention the extent [to] which the reserving State has accepted the obligations of the Convention’.393

References 133. The same applies when a State reserves the general right to have its constitution prevail over a treaty.394 This is the case, for example, of the reservation of the United States to the Genocide Convention: nothing in the Convention requires or authorizes legislation or other action by the United States of America prohibited by the Constitution of the United States as interpreted by the United States.395

References

134. It is, essentially, the impossibility to assess the compatibility of such reservations with the object and purpose of the treaty rather than the certainty of their incompatibility, which makes them fall within the purview of paragraph (c) Article 19. As the Human Rights Committee pointed out: Reservations must be specific and transparent, so that the Committee, those under the jurisdiction of the reserving State and other States parties may be clear as to what obligations of human rights compliance have or have not been undertaken. Reservations may thus not be general, but must refer to a particular provision of the Covenant and indicate in precise terms its scope in relation thereto.396 For its part, the European Court of Human Rights, in the Belilos case, declared invalid the declaration (equivalent to a reservation) of Switzerland to Article 6(1) of the Rome Convention because it was ‘couched in terms that are too vague or broad for it to be possible to determine their exact meaning and scope’.397 But it is without doubt the European (p. 460) Commission for Human Rights that most clearly formulated the principle applicable here when it judged that ‘a reservation is of a general nature when it does not refer to a specific provision of Convention or when it is worded in such a way that it does not allow its scope to be determined’.398

References 135. Draft guideline 3.1.7 adopted by the ILC is drafted in consequence: it does not state that vague reservations are contrary to the object and purpose of the treaty concerned, but it is worded to make clear that a reservation shall be formulated in such a manner that its scope can be determined reasonably in order to permit the assessment of its compatibility with the object and purpose test.399

Reservations relating to provisions reflecting customary norms 136. It has happened that States parties to a treaty objected to reservations and challenged their compatibility with its object and purpose under the pretext that they were contrary to well-established customary rules. Thus, Austria declared that it: is of the view that the Guatemalan reservations [to the 1969 Vienna Convention on the Law of Treaties] refer almost exclusively to general rules of [the said Convention] many of which are solidly based on international customary law. The reservations could call into question well-established and universally accepted norms. Austria is of the view that the reservations also raise doubts as to their compatibility with the object and purpose of the [said Convention].400 Similarly, the Netherlands objected to reservations formulated by several States in respect of various provisions of the Vienna Convention of 1961 on diplomatic relations and took ‘the view that this provision remains in force in relations between it and the said States in accordance with international customary law’.401

References 137. It has often been thought that this inability to formulate reservations to treaty provisions which codify customary norms could be deduced from the judgment of the International Court of Justice in the North Sea Continental Shelf:402 speaking generally, it is a characteristic of purely conventional rules and obligations that, in regard to them, some faculty of making unilateral reservations may, within certain limits, be admitted;—whereas this cannot be so in the case of general or customary law rules and obligations which, by their very nature, must have equal force for all members of the international community, and cannot therefore be the subject of any right of unilateral exclusion exercisable at will by any one of them in its own favour.403 While the wording adopted by the Court is certainly not the most felicitous, the conclusion that some have drawn from it seems incorrect if this passage is put back into its context.

References (p. 461) 138. The Court goes on to exercise caution in respect of the deductions called for by the exclusion of certain reservations. Noting that the faculty of reservation to Article 6 of the 1958 Geneva Convention on the Continental Shelf (delimitation) was not excluded by Article 12 on reservations,404 as it was for Articles 1 to 3, it appeared ‘normal’ to the Court and: a legitimate inference that it was considered to have a different and less fundamental status and not, like those articles, to reflect pre-existing or emergent customary law.405 It is thus ‘pas vrai que la Cour affirme l'inadmissibilité des réserves à l'égard des règles de droit coutumier’;406 it only finds that, in the case at hand, the different treatment which the authors of the Convention accorded to Articles 1 to 3, on the one hand, and Article 6, on the other hand, suggested that they did not consider that the latter codified a customary norm which, moreover, confirms the Court's own conclusion.

References 139. Moreover, the judgment itself indicates, in an often-neglected dictum, ‘[n]o reservation could release the reserving party from obligations of general maritime law existing outside and independently of the Convention [on the Continental Shelf]’.407 This clearly implies that the customary character of the norm reflected in a conventional provision with regard to which a reservation is formulated does not constitute by itself a ground of invalidity of the reservation.408

References 140. Although it is sometimes challenged,409 this principle is in the main recognized by the majority of the doctrine,410 and rightly so: • Customary norms are binding on States independently of the expression of their consent to the conventional norm 411 but, unlike peremptory norms, the States can derogate therefrom by an inter se agreement; it is not clear why they could not do so by a reservation 412 —providing that the latter is valid, but that is precisely the question raised. (p. 462) • A reservation only concerns the ‘conventionality’ of the norm, not its existence as a customary rule even though, in certain cases, it can cast doubt on its general acceptance ‘as of right’; 413 as the United Kingdom noted in its observations on General Comment No. 24, ‘there is a clear distinction between choosing not to enter into treaty obligations and trying to opt out of customary international law’. 414 • If this nature is recognized, the States remain bound by the customary rule independently of the treaty. 415 • Despite appearances, they can have an interest in it (albeit not necessarily a laudable one); for example, that of avoiding application to the relevant obligations of the monitoring or dispute-settlement mechanisms envisaged in the treaty or of limiting the role of domestic judges, who may have different competences with respect to conventional rules, on the one hand, and customary rules, on the other hand. 416 • Moreover, as France noted in its commentary on General Comment No. 24 of the Human Rights Committee, ‘the State's duty to observe a general customary principle should [not] be confused with its agreement to be bound by the expression of that principle in a treaty, especially with the developments and clarifications that such formalization involves’. 417 • Finally, a reservation could be a means for a ‘persistent objector’ to demonstrate the persistence of its objection: it could certainly refuse the application, through a treaty, of a rule which is not opposable to it by virtue of general international law. 418

References 141. This principle has been transposed by the ILC in draft guideline 3.1.8, paragraph 1. Paragraph 2 of that same guideline emphasizes the possible effect, or the absence of any effect, of such a reservation on the binding character of the customary norm as such;419 this issue is nevertheless unrelated to the assessment of the validity of the reservation, and in particular to the issue of its compatibility with the Article 19(c) test. In spite of the contrary position of the Human Rights Committee,420 this solution is transposable in the human rights area.421 142. On the more general issue of codifying conventions, it may be wondered whether formulating reservations to them is not contrary to their object and purpose. There is no doubt that ‘the desire to codify is normally accompanied by a concern to preserve the rule being affirmed’:422 ‘if it were possible to formulate a reservation to a provision of customary (p. 463) origin in the context of a codification treaty, the codification treaty would fail in its objectives’,423 to the point that one can view the reservations and, in any case, their accumulation, as ‘the very negation of the work of codification’.424 143. It does not result therefrom that, by definition, every reservation to a codifying treaty is contrary to its object and purpose: • It is certain that reservations are hardly compatible with the desired objective of standardizing and clarifying customary law but ‘à y bien réfléchir, l’équilibre d'ensemble auquel la réserve porte atteinte, constitue non l'objet et le but du traité lui-même, mais l'objet et le but de la négociation dont ce traité émane'. 425 • The very notion of a ‘codifying convention’ is uncertain. As the ILC has often underlined, it is impossible to separate codification stricto sensu of international law from its progressive development. 426 ‘Quel quantum de règles d'origine coutumière un traité doit-il contenir pour être qualifié de “traité de codification”?’. 427 • The status of norms included in a treaty changes over time: a norm which falls in the category of progressive development can grow into a pure codification and, a ‘codification convention’ often crystallizes into a rule of general international law a norm which was not of this nature at the time of its adoption. 428

References 144. As a result, the nature of codifying conventions does not constitute, as such, more of an

obstacle to the formulation of reservations to some of their provisions under the same title (and with the same restrictions) than to any other treaty. The arguments that one can refer to, in a general manner, in favour of the ability to formulate reservations to a conventional provision reflecting a customary rule429 are also fully transposable thereto. Furthermore, there is well-established practice in this sense: along with human rights treaties (that are otherwise largely codifying existing law), the codifying conventions are, out of all treaties, those that are the object of the largest number of reservations.430 And, if it (p. 464) happens that certain objections are founded on the customary character of the rules concerned,431 the specific nature of these conventions seems never to have been invoked in support of a declaration of incompatibility with their object and purpose.

References 145. Nevertheless, the customary nature of a provision forming the object of a reservation has important consequences concerning the effects it produces: once established, it paralyses the application of the conventional norm which is the object of the reservation in the relations of the reserving State with the other parties to the treaty, but it does not eliminate the State's obligation to respect the customary norm (the content of which is, by hypothesis, identical).432 The reason for this is simple and appears with great clarity in the celebrated dictum of the ICJ in the Nicaragua case: The fact that the abovementioned principles, recognized as such, have been codified or embodied in multilateral conventions does not mean that they cease to exist and to apply as principles of customary law, even as regards countries that are parties to such conventions.433 As shown by Judge Ad Hoc Sørensen, in his Dissenting Opinion appended to the 1969 judgment of the Court in the cases concerning the North Sea Continental Shelf: There is no incompatibility between the faculty of making reservations to certain articles of the Convention on the Continental Shelf and the recognition of that Convention or the particular articles as an expression of generally accepted rules of international law.434 It is therefore correct that, in the objection it made to a reservation by Syria to the Convention on the Law of Treaties, the United States considers that: the absence of treaty relations between the United States of America and the Syrian Arab Republic with regard to certain provisions in Part V will not in any way impair the duty of the latter to fulfil any obligation embodied in those provisions to which it is subject under international law independently of the Vienna Convention on the Law of Treaties.435

Reservations to provisions which express jus cogens rules 146. For the reasons set out above,436 one can assume that a reservation to a conventional provision which expresses a peremptory norm of general international law is inconceivable: the scope of reservations and acceptances shows a ‘contractual connection’ between (p. 465) the parties; hence, the agreement which results would be automatically null and void as a consequence of the principle established in Article 53 of the Vienna Convention.437 147. This reasoning is not however axiomatic: it rests upon postulates of the ‘opposability’ school438 which are far from evident.439 Moreover, and most importantly, it assimilates the mechanism of reservations with a purely treaty-based process; whereas a reservation is a unilateral act, linked to the treaty certainly, but without exogenous effects. By definition, it ‘purports to exclude or to modify the legal effect of certain provisions of the treaty in their application’ to the reserving State440 and, if it is accepted, those are indeed its consequences.441 However, whether or not it is accepted, ‘neighbouring’ international law remains intact; the legal situation of interested States is affected by it only in their treaty relations.442 148. Other, more numerous, authors assert the incompatibility of every reservation to a provision reflecting a peremptory norm of general international law either without putting forward any explanation,443 or arguing that such a reservation would, ipso facto, be contrary to the object and purpose of the treaty.444 149. This is also the position of the Human Rights Committee in its General Comment No. 24: Reservations that offend peremptory norms would not be compatible with the object and purpose of the Covenant.445 This formulation is disputable,446 and in any case, cannot be generalized: it is perfectly conceivable that a treaty might refer marginally to a rule of jus cogens without the latter being its object and purpose. 150. It has however been asserted that ‘la règle prohibant la dérogation à une règle de jus cogens vise non seulement les rapports conventionnels mais aussi tous les actes juridiques, dont les actes unilatéraux’.447 This is certainly correct and, in truth, constitutes the only convincing intellectual motive for not transposing to reservations to peremptory provisions the reasoning that would not exclude, in principle, the ability to formulate reservations to treaty provisions embodying customary rules.448 (p. 466) 151. When formulating a reservation, a State can indeed seek to exempt itself from

the rule to which the reservation itself relates and, in the case of a peremptory norm of general international law, this is out of question449—all the more so because one cannot allow a persistent objector to thwart such a norm. But the aims envisaged by the reserving State can be different. While accepting the contents of the rule, a State can intend to escape the consequences which it induces, in particular with regard to its monitoring,450 and, on this point, there is no reason not to transpose to the peremptory norms the reasoning followed with regard to the merely binding customary rules. However, as regrettable as that can appear, reservations do not have to be justified and, in reality, they seldom are. Consequently, in the absence of a clear motivation in every case, it is impossible for the other contracting parties or the monitoring bodies to check the validity of the reservation and it is preferable to postulate in principle that any reservation to a provision formulating a jus cogens norm is ipso facto void.451 However, this explanation was so uncertain that, at its session in 2007, the ILC could not adopt a clear solution and finally abstained from adopting a guideline on this problem in the first version of its Guide to Practice.

References 152. For its part, draft guideline 3.1.9 adopted in the same year452 does not directly address the question of the compatibility of reservations to a provision reflecting a peremptory norm of general international law with the objet and purpose of a treaty, but relates to the possible legal effect of a reservation on the treaty by providing that if the conventional relation resulting from the treaty thwarts the realization of a peremptory norm, the reservation is not valid. In any case, there are other ways for States to avoid the consequences of the inclusion in a treaty of a peremptory norm of general international law: they may formulate a reservation not to the substantive provision concerned, but to ‘secondary’ articles governing treaty relations (monitoring, dispute settlement, interpretation), even if this means restricting its scope to a particular substantive provision.453 Moreover, guideline 4.4.3 (‘Absence of effect on a peremptory norm of general international law’) adopted in 2010 provides that: A reservation to a treaty provision which reflects a peremptory norm of general international law (jus cogens) does not affect the binding nature of that norm, which shall continue to apply as such between the reserving State or organization and other States or international organizations.454

References (p. 467) 153. Seemingly, the problem of reservations to non-derogable clauses contained in human rights treaties is formulated in very similar terms.455 States frequently justify their objections to reservations to such provisions on grounds of the treaty-based prohibition on suspending their application whatever the circumstances.456

References 154. It is obvious that, insofar as the non-derogable provisions relate to jus cogens norms, the reasoning applicable to the latter norms applies to the former as well. However, the two are not necessarily identical. According to the Human Rights Committee: While there is no automatic correlation between reservations to non-derogable provisions, and reservations which offend against the object and purpose of the Covenant, a State has a heavy onus to justify such a reservation.457 This last point is question-begging and is undoubtedly motivated by commendable reasons of convenience but is not based on any principle of positive law. 155. Incidentally, it follows a contrario from this position that, in the Committee's view, if a non-derogable right is not a matter of jus cogens, it can in principle be the object of a reservation. For its part, the Inter-American Human Rights Committee declared in its Advisory Opinion of 8 September 1983 on the Restrictions to the death penalty: Article 27 of the Convention allows the States Parties to suspend, in time of war, public danger, or other emergency that threatens their independence or security, the obligations they assumed by ratifying the Convention, provided that in doing so they do not suspend or derogate from certain basic or essential rights, among them the right to life guaranteed by Article 4. It would follow therefrom that a reservation which was designed to enable a State to suspend any of the non-derogable fundamental rights must be deemed to be incompatible with the object and purpose of the Convention and, consequently, not permitted by it. The situation would be different if the reservation sought merely to restrict certain aspects of a nonderogable right without depriving the right as a whole of its basic purpose. Since the reservation referred to by the Commission in its submission does not appear to be of a type that is designed to deny the right to life as such, the Court concludes that to that extent it can be considered, in principle, as not being incompatible with the object and purpose of the Convention.458

References 156. In opposition to any possibility of formulating reservations to a non-derogable provision, it can be argued that, since any suspension of the obligations in question is excluded by the treaty, ‘with greater reason one should not admit any reservations, perpetuated in time until

withdrawn by the State at issue; such reservations are…without any caveat, incompatible with the object and purpose of those treaties’.459 The argument is not persuasive: it is one thing to prevent derogations from a binding provision, but (p. 468) another thing to determine whether the State is bound by the provision at issue.460 It is precisely this second problem which needs to be solved.

References 157. It must therefore be accepted that if certain reservations to non-derogable provisions are definitely ruled out—either because they would hold in check a peremptory norm or because they would be contrary to the object and purpose of the treaty, this is not always and inevitably the case.461 The non-derogable nature of a right protected by a human rights treaty is not per se an obstacle for a reservation to be formulated, but it reveals the importance with which it is viewed by the contracting parties, and it constitutes a useful guide for the assessment of the criterion based on the object and purpose of the treaty. 158. This balanced solution is well illustrated by the objection of Denmark to the United States reservations to Articles 6 and 7 of the Covenant of 1966 relating to civil and political rights: …Denmark would like to recall article 4, para 2 of the Covenant according to which no derogation from a number of fundamental articles, inter alia 6 and 7, may be made by a State Party even in time of public emergency which threatens the life of the nation. In the opinion of Denmark, reservation (2) of the United States with respect to capital punishment for crimes committed by persons below eighteen years of age as well as reservation (3) with respect to article 7 constitute general derogations from articles 6 and 7, while according to article 4, para 2 of the Covenant such derogations are not permitted. Therefore, and taking into account that articles 6 and 7 are protecting two of the most basic rights contained in the Covenant, the Government of Denmark regards the said reservations incompatible with the object and purpose of the Covenant, and consequently Denmark objects to the reservations.462 Conversely, it should be noted that in certain cases the parties did not formulate an objection against reservations dealing with provisions from which no derogation is permitted.463

References 159. On the other hand, the fact that a provision can in principle form the object of derogation does not mean that any reservation relating to it is valid.464 The criterion of compatibility with the object and purpose of the treaty applies equally to this situation.

(p. 469) The assessment of the compatibility of a reservation with the object and purpose of a treaty and its consequences The ability to examine the compatibility of a reservation with the object and purpose of the treaty 160. It should be admitted that, though less ‘enigmatic’ than usually described,465 the concept of the object and purpose of a treaty does not lend itself to a doctrinal systematization. In each specific case, it is for the interpreter to proceed with a detailed examination taking into account the following elements, which follow from all preceding considerations: • the text of the treaty; • its context, thereby included, the preamble, the Articles defining the spirit in which it was concluded and the objectives pursued by the parties and, when needed, in the light of the travaux préparatoires; • taking into account the evolution of the law since its adoption; • the degree of precision of the reservation; and • the effect which it is likely to produce on the overall framework of the treaty. Moreover, it is fitting to investigate the nature (customary, non-derogable, peremptory) of the norm to which the reservation applies (even if, in reality, this determination is not directly linked to that of the object and purpose).466 161. Overall, this will encompass a variety of (subjective) indications rather than objective criteria. However, one should not exaggerate the inconveniences resulting from this appeal to the subjectivity of the interpreter. After all, these guidelines, which constitute orientations of a general character through which the interpreter has to allow him or herself to be guided by good faith, are no more vague than those resulting from the rules proclaimed in Articles 31 and 32 of the Vienna Convention, to which they are closely related.467 That aside, the issue, as was said with regard to just title, is ‘one of the most remarkable achievements’ of the Convention.468 And if the practical application of these guidelines is not necessarily simple, they do not pose insurmountable problems and operate in a very reasonable manner. 162. Consequently, even though it is perfectly true that the Vienna Convention does not provide any method for settling disputes relating to the compatibility of a reservation with the object and purpose of the treaty,469 the real ‘fixation abscess’ of the doctrine on the question as to who has competence to determine the compatibility (or incompatibility) of a reservation

with the object and purpose of the treaty is misplaced. 163. It goes without saying that every treaty could encompass a special provision foreseeing particular rules to examine the validity of the reservation either by a certain percentage of States parties or by an organ which is competent for that purpose. One of the best-known and most commented upon such clauses470 appears in Article (p. 470) 20(2) of the Convention of 1965 on the Elimination of All Forms of Racial Discrimination:471 A reservation incompatible with the object and purpose of this Convention shall not be permitted, nor shall a reservation the effect of which would inhibit the operation of any of the bodies established by this Convention be allowed. A reservation shall be considered incompatible or inhibitive if at least two thirds of the States Parties to this Convention object to it.472

References 164. Nonetheless, it is difficult to see how such clauses, however alluring they may appear intellectually,473 could in any way solve all associated problems: in practice they do not encourage States parties to be particular vigilant to the issue,474 and they leave important questions unanswered: • Do they exclude the possibility open to States parties to make objections by applying the provisions of paragraphs 4 and 5 of Article 20? Considering the very wide leeway which States possess in this regard, a negative answer is undoubtedly due. 475 • On the other hand, the mechanism instituted by Article 20 dissuaded the Committee for the Elimination of Racial Discrimination instituted by the Convention to control the validity of reservations. 476 That raises the question whether this attitude reveals an appreciation of opportunity or whether the existence of specific appreciation mechanisms means that the monitoring bodies abstain from taking a position. In truth, nothing obliges them to do so. From the moment one admits that such mechanisms are superimposed on the conventional processes provided for the determination of the validity of reservations and that the human rights bodies are called to (p. 471) assess this point in the exercise of their function, 477 they can do so in all cases, in the same way as States.

References 165. Generally speaking, it must be considered that this competence belongs to different authorities called on to interpret treaties: States, their domestic courts, and, within the limits of their competence, the organs of dispute settlement and those that monitor the application of the treaty. This would certainly be the case if a treaty expressly foresees the intervention of a judicial organ in litigation relating to the validity of reservations, but such a clause does not seem to exist, though the matter clearly lends itself to judicial determination.478 Besides, there is no doubt that such a case can be decided by any organ desiged by the parties to settle disputes relating to the interpretation or the application of the treaty. Consequently, it is arguable that every general dispute-settlement clause establishes the competence in this matter of the designated organ.479

References 166. On the other hand, according to the largely dominant principle of the ‘depositarymailbox’480 enshrined in Article 77 of the Convention, the depositary can in principle only take note of the reservations notified to him and transmit them to the contracting States481 without assessing their validity, except perhaps in cases where the absence of validity is manifest.482 167. In reality, the doctrinal quarrel which has been raging in this regard focuses essentially on factors esentially ideological, linked to the ‘hyper-sensibility’ of human rights militants and the ‘human rightism’ doctrine on the matter, which has not contributed to alleviating this largely artificial quarrel. However, things are less complicated than would initially appear. First, there should be no doubt that the human rights bodies are competent to decide, when they are seized of the question of the validity of a reservation—including of course the reservation's compatibility with the object and purpose of the convention.483 Secondly, on this occasion, the human rights bodies possess no more or less power than in any other matter: the Human Rights Committee and the other universal human rights organs which do not have the power to decide do not simply acquire it in matters of reservations; the regional courts whose judgments enjoy the res judicata authority, have, on the contrary, such a power—though within certain limits.484 In fact, in the third and final place, if all human rights (or disputesettlement) organs can (p. 472) examine the validity of the contested reservation, they cannot instead substitute their own appreciation for that of the State which consents to be bound by the treaty.485 168. It goes without saying that the competences belonging to these organs do not conflict with the one of States to accept or to object to reservations, such as established and regulated under Articles 20, 21, and 23 of the Vienna Convention.486 In the same way, nothing precludes national tribunals from examining, if necessary, the validity of reservations issued by a State,487 including their compatibility with the object and purpose of a treaty, if domestic law allows them to apply treaty-based rules—for the States parties to the Vienna Convention—or customary law rules—since the principle stated in Article 19(c) has customary status.488 169. The present situation concerning the control of the validity of reservations to treaties, and specifically to human rights conventions, is hence characterized by the competition

between, or in any event the coexistence of, several controlling mechanisms of the validity of reservations:489 • One such mechanism, which constitutes ius commune and is purely of an interstate nature, is that enshrined in Article 20 of the Vienna Convention; it can be arranged by particular reservation clauses which feature in the given treaties. • When the treaty establishes an organ monitoring its application, it is currently accepted that this organ can also decide on issues of validity. • However, this leaves open the possibility for States parties to resort, if necessary, to habitual modes of peaceful dispute settlement, including jurisdictional or arbitral means, should a dispute arise between them relating to the admissibility of a reservation. 490 • Moreover, it is not excluded that national tribunals, in the manner of the Swiss jurisdictions, 491 assume they are endowed with the power to examine the validity of a reservation in regard to international law. 170. It is clear that the multiplicity of control possibilities entails some inconvenience, the least of which is not the risk of contradiction between the opposing positions that may be adopted regarding the same reservation (or on two identical reservations by (p. 473) different States).492 In truth, this risk is inherent in every control system—over time the same organ may make contradictory decisions, and it is perhaps better to have too much control rather than no control at all. 171. More serious in this scenario is the menace which constitutes the succession of control in the absence of any limitation on the duration of the period during which these examinations may take place. The problem does not arise concerning the ‘Vienna regime’ since Article 20(5) of the Convention limits the period during which a State can formulate an objection to 12 months following the date of receipt of the notification of the reservation (or the expression of consent to be bound by the objecting State).493 However, the problem emerges acutely in every case of jurisdictional or quasi-jurisdictional control that, by assumption, is uncertain and depends on the seisin of the regulatory or monitory organ. To counter this it has been proposed also to limit the right of these organs to exercise their control to 12 months.494 In addition to the fact that none of the relevant texts currently in force provides for such a limitation, it hardly seems compatible with the foundation of the intervention of monitoring bodies which aims at assuring respect for general principles of international law (the preservation of the object and purpose of the treaty). In addition, as one commentator noted, one of the reasons why States issue so few objections relates precisely to the fact that the 12month rule is too short.495 The same problem could arise a fortiori for monitoring bodies and they may find themselves paralysed by it. 172. One could suppose that the variety of control mechanisms reinforces the chances of the reservations regime—and in particular of the principle of compatibility with the object and purpose of the treaty—playing its true role. The problem does not lie in opposing them or affirming the monopoly of one mechanism,496 but in combining them in a conciliatory manner to best serve the two contradictory but fundamental requirements of the integrity of the treaty and the universality of participation.497 It is normal that States which wanted the treaty can put forward their point of view. It is natural that the controlling organs fully play the role of treaty guardians which the parties have entrusted to them. 173. This situation does not exclude but rather implies a certain complementarity between the different modes of control and cooperation between the organs that are in charge of them. This is particularly indispensable when, in examining the validity of a (p. 474) reservation, the monitoring bodies (as well as the dispute-settlement organs) take fully into account the positions adopted by the contracting parties by means of acceptances or objections. Inversely, the States which have to conform to the decision taken by the monitoring organs to which they have granted decision-making power, have also to take the considered and reasoned decisions of these organs seriously, even if these organs cannot make juridically binding decisions.498

References

The consequences of the incompatibility of a reservation with the object and purpose of a treaty 174. Article 19 does not draw the conclusions from the formulation of a prohibited reservation, expressly (para. (a)) or implicitly (para. (b)), under the treaty to which it applies nor in respect of the effects of the formulation of a reservation prohibited by paragraph (c)499 and nothing in the text of the Vienna Convention indicates how these provisions interact with those of Article 20 relating to the acceptance of reservations and to objections. There is a ‘normative gap’,500 perhaps deliberately created by the authors of the Convention.501 175. One cannot but acknowledge that the travaux préparatoires of paragraph (c) are confused and equally unrevealing about the consequences the drafters of the Convention intended to attach to the incompatibility of a reservation with the object and purpose of the Convention502 • In draft Article 17 proposed by Waldock in 1962, the object and purpose of the treaty only featured as a guideline to advise the reserving State. 503 • The debates on this draft were particularly confused during the plenary sessions of the ILC 504 and revealed above all a divide between the members favouring an individual appreciation by the States and those which spoke out in favour of a collegial mechanism 505 without really discussing the consequences of such an examination. (p. 475) • However, after the restructuring of the draft by the Drafting Committee in a

manner that was very close to the drafting of the current Article 19, the dominant sentiment seems to have been that the object and purpose constituted a criterion which formed the yardstick by which the validity of the reservation was to be appreciated. 506 • The skilful drafting of the commentary on draft Articles 18 and 20 (which respectively correspond to Arts 19 and 21 of the Convention) adopted in 1962 leaves the question open: there it is simultaneously affirmed that the compatibility of the reservation with the object and purpose of the treaty constitutes the criterion governing the formulation of the reservation and that, since this criterion ‘is to some extent a matter of subjective appreciation…the only means of applying it in most cases will be through the individual State's acceptance or rejection of the reservation’, but this only ‘in the absence of a tribunal or organ with standing competence’. 507 • In his report of 1965, the Special Rapporteur also observed, regarding draft Article 19 relating to treaties which keep silent on the question of reservations (which became Art. 20 of the Convention), that ‘the Commission recognized that the compatibility criterion is to some extent subjective and that views may differ as to the compatibility of a particular reservation with the object and purpose of a given treaty. In the absence of compulsory adjudication, on the other hand, it felt that the only means of applying the criterion is through the individual State's acceptance or rejection of the reservation’. The Special Rapporteur also recognized that ‘the rules proposed by the Commission might be more readily acceptable if their interpretation and application were made subject to international adjudication’. 508 • However the commentaries of the Commission on draft Articles 16 and 17 (which became Articles 19 and 20 respectively) are also no more clear and limit themselves to indicating that ‘[t]he admissibility or otherwise of a reservation under paragraph (c), on the other hand, is in every case very much a matter of the appreciation of the acceptability of the reservation by the other contracting States’ and that, for this reason, one has to understand draft Article 16(c), ‘in close conjunction with the provisions of article 17 regarding acceptance of and objection to reservations’. 509 • At the time of the Vienna Conference, certain delegations tried to give more content to the criterion of the object and purpose of the treaty; thus, the Mexican delegation proposed expressly to envisage the consequences of a judicial decision which recognized the incompatibility of a reservation with the object and purpose of the treaty; 510 but it was above all the defendants of the collegial examination system who tried to (p. 476) draw concrete consequences from the incompatibility of a reservation with the object and purpose of the treaty. 511 176. Moreover, as indicated supra,512 nothing, either in the text of Article 19 or in the travaux préparatoires, gave rise to thinking it necessary to make a distinction between one and the other: ubi lex non distinguit, nec nos distinguere debemus. In the three cases resulting from the text of Article 19, a State is prevented from formulating a reservation and, since it is admitted that a reservation which is prohibited by the treaty is legally void due to paragraphs (a) and (b) of Article 19,513 there is no reason to draw different a conclusion from paragraph (c). Three objections, of unequal importance, were however advanced in opposition to this conclusion. 177. In the first place, it has been pointed out that if the depositary rejects a reservation prohibited by the treaty, it communicates to other contracting States the text which is prima facie incompatible with the treaty's object and purpose.514 This is effectively the practice followed by the Secretary-General of the United Nations515 but the impact of this must be relativized. In fact: only if there is no doubt that the statement accompanying the instrument is an unauthorized reservation does the Secretary-General refuse the deposit…In case of doubt, the Secretary-General shall request clarification from the State concerned… However, the Secretary-General feels that it is not incumbent upon him to request systematically such clarifications; rather, it is for the States concerned to raise, if they so wish, objections to statements which they would consider to constitute unauthorized reservations.516 In other words, the difference revealed in the practice of the Secretary-General is not based on the distinction between the hypotheses of paragraphs (a) and (b) on the one hand and paragraph (c) of Article 19 on the other hand, but on the certain character of the contradiction of the reservation with the treaty. Since an interpretation is necessary, the Secretary-General relies on the States. For the rest, in draft guideline 2.1.8 of the (p. 477) Practice Guide, the ILC, with a view of progressive development, estimated that ‘[w]here, in the opinion of the depositary, a reservation is manifestly invalid, the depositary shall draw the attention of the author of the reservation to what, in the depositary's view, constitutes the grounds for the invalidity of the reservation’.517 To that end, ‘the Commission did not consider it justified to distinguish among the different types of invalidity listed in article 19’.518 178. Secondly, in the same spirit as in the hypothesis in paragraphs (a) and (b), the reserving State cannot ignore the prohibition and, consequently, it needs to be known to have accepted the treaty in its entirety, notwithstanding its reservation (‘divisibility’ doctrine).519 There is no doubt that the incompatibility of a reservation with the object and purpose of the treaty is less easy to examine objectively than when a prohibition clause exists in the treaty. The remark is certainly relevant but it is not decisive: the examination of the scope of the reservation clause is less evident than may be thought, especially when the prohibition is implicit as in the hypothesis in paragraph (b).520 Moreover, it can be difficult to determine whether a unilateral declaration is or is not a reservation and the State which has formulated it may have thought

in good faith that it did not violate the prohibition, while estimating that the acceptance of its interpretation of the treaty conditioned its consent to being bound.521 And, in truth, if a State is not supposed to be ignorant of the prohibition resulting from a reservation clause, it needs to be as conscious as possible that it cannot empty a treaty of its substance by means of a reservation which is incompatible with its object and purpose. 179. Thirdly and above all, it has been pointed out that paragraphs 4 and 5 of Article 20 state a sole limitation to the possibility of accepting a reservation: the presence of a contrary provision in the treaty.522A contrario, total liberty to accept reservations notwithstanding the provisions of Article 19(c) results therefrom.523 If it is correct that in practice States rarely object to reservations which are very likely to be contrary to the object and purpose of the treaty to which they apply524 and that this deprives the rule posed in Article 19(c)525 of concrete effect, at least in the absence of an organ which has the competence to take decisions in this regard,526 nevertheless, several arguments, based on the text itself of the Convention, are opposed to this reasoning:527 • Articles 19 and 20 of the Convention have distinct functions; the rules they incorporate intervene at different ‘moments’ of the establishment of a reservation: Article 19 (p. 478) puts forward the cases in which a reservation can be formulated; Article 20 indicates what happens when it has been formulated. 528 • The proposed interpretation would empty paragraph (c) of Article 19 of any effet utile: it would result therefrom that a reservation which is incompatible with the object and purpose of the treaty would produce exactly the same effect as a compatible reservation. • It also empties the meaning of Article 21(1), which specifies that a reservation is not ‘established’ except when ‘in accordance with Articles 19, 20 and 21’. 529 • It introduces a distinction between the scope of paragraphs (a) and (b) on the one hand, and paragraph (c) on the other hand, which the text of this provision by no means authorizes. 530 180. Once it is admitted that the three paragraphs of Article 19 have the same function and that a State cannot formulate a reservation which goes against their provisions,531 the question arises of what happens if a State formulates a reservation in spite of these prohibitions. It is clear that if a State does so regardless, the reservation cannot produce the legal effects which Article 21 clearly subordinates to its ‘establishment’ ‘in accordance with Articles 19 [in its entirety], 20 and 23’.532 But this is not the end of the question: should one consider that, while thus proceeding, the reserving State commits an internationally wrongful act which engages its international responsibility? In addition, are the other States prevented from acquiescing to a reservation formulated in spite of the prohibitions of Article 19? 181. Concerning the first of these two questions, the point has been made that a reservation which is incompatible with the object and purpose of the treaty533 ‘amounts to a breach of [the] obligation’ resulting from Article 19(c): Therefore, it is a wrongful act, entailing such State's responsibility vis-à-vis each other party to the treaty. It does not amount to a breach of the treaty itself, but rather of the general norm embodied in the Vienna Convention forbidding ‘incompatible’ reservations.534 This reasoning, expressly based on the rule of the responsibility of the State for internationally wrongful acts535 could not obtain general approval.536 182. It cannot be doubted that: There is a breach of an international obligation by a State when an act of that State is not in conformity with what is required of it by that obligation, regardless of its origin or character,537 and that the violation of an obligation to refrain from doing so (ie not to formulate a reservation which is incompatible with the object and purpose of the treaty) constitutes (p. 479) an internationally wrongful act susceptible of engaging the international responsibility of the State under the same title as an obligation to act. Again it is necessary that this question arises in the domain of the law of responsibility. Thus, as the ICJ firmly recalled in the case concerning the Gabčíkovo-Nagymaros Project, this branch of the law and the law of treaties have ‘a scope that is distinct’; just as ‘[a] determination of whether a convention is or is not in force, and whether it has or has not been properly suspended or denounced, is to be made pursuant to the law of treaties’,538 it belongs to this same branch of law to determine whether a reservation can or cannot be formulated. It results therefrom, at least, that the eventual responsibility of a reserving State cannot be determined in regard to the Vienna rules and that it does not have relevance for purposes of ‘the law on reservations’. Moreover, even if damage does not constitute a necessary condition for engaging the responsibility of the State,539 it conditions the entry into force of such and, particularly, the reparation,540 so that for a nonvalid reservation to produce consequences in the field of responsibility, it is required that the State which makes use of it can invoke damage—a highly improbable hypothesis.

References 183. But there is more. It is in fact revealing that a State has never, at the occasion of the formulation of an objection to a prohibited reservation, invoked the responsibility of the reserving State. The consequences arising from the finding of the incompatibility of a reservation with the object and purpose of the treaty can be diverse,541 but there is never an obligation to make reparations. If an objecting State invites the reserving State to retract its 542

reservation or to modify it in the framework of ‘the reservatory dialogue’,542 it would not be argued on the basis of the law of responsibility but on that of the law of treaties and solely on that. 184. That is otherwise the reason why the ILC—which, initially, had retained the French term ‘illicite’ as equivalent to ‘permissible’ to qualify reservations formulated in spite of the provisions of Article 19543—decided in 2002 to postpone taking a position on this point during the waiting period for the examination of the effects of such reservations,544(p. 480) in order, finally in 2006, uniformly to adopt in the entire draft the terms ‘valid’ or ‘invalid’ and ‘validity’ or ‘invalidity’.545 It did not in fact seem in doubt that the formulation of a reservation excluded by one of the unspecified paragraphs of Article 19 arises from the law of treaties and not of that of State responsibility for internationally wrongful acts and does not engage the responsibility of the reserving State.546 185. The question arises whether the other parties can, collectively or unilaterally, accept a reservation which does not fulfil the conditions set by one of such paragraphs of Article 19. This is the central problem which opposes the supporters of the opposability school to those who advocate the permissibility thesis.547 186. The majority of authors who belong to the first of these two schools estimate that a reservation formulated in spite of a conventional prohibition is legally void548 and those who advocate ‘permissibility’ consider that its formulation entails the invalidity of the expression of consent to be bound.549 If this is the case, these unanimous conclusions have to influence the answer to the question as to what are the effects of a reservation formulated in spite of the provisions of Article 19(c).550 187. There is no doubt that the unilateral acceptance of a reservation formulated in spite of paragraphs (a) and (b) of Article 19 is excluded. This was very clearly confirmed during the Vienna Conference, by Sir Humphrey Waldock, expert counsel, without arousing any objection, regarding prohibited reservations.551 Thus, as indicated supra,552 there is no reason for not expanding this common sense solution to reservations which fall under the scope of paragraph (c). In reality, the absence of validity of reservations formulated contrary to one of the three paragraphs of Article 19 finds its origin in the same fundamental considerations: a State cannot blow hot and cold at the same time, it cannot, without disrespecting the principle of good faith, formulate a prohibited reservations, or empty the treaty of its substance by formulating a reservation incompatible with the object and purpose of the treaty and also the other parties cannot unilaterally accept it.553 In fact, it results therefrom (p. 481) that a modification of the treaty in the relations between the author of the reservation and the States which accept it would not be compatible with Article 41(b)(ii) of the Vienna Convention. This Article precisely excludes every modification of this type if it does not relate ‘to a provision, derogation from which is incompatible with the effective execution of the object and purpose of the treaty as a whole’.554 In 2010, the ILC drew conclusions from these considerations and adopted guideline 4.5.1 providing: ‘A reservation that does not meet the conditions of formal validity and permissibility set out in Parts 2 and 3 of the Guide to Practice is null and void, and therefore devoid of legal effect’.555 188. But this does not necessarily imply that the parties are prevented from reaching an agreement to accept a reservation in spite of the prohibition foreseen in the treaty. Draft Article 17(1)(b) proposed by Waldock in 1962 envisaged ‘the exceptional case of an attempt to formulate a reservation of a kind which is actually prohibited or excluded by the terms of the treaty’.556 It foresaw that, in this hypothesis, ‘the prior consent of all the other interested States’ is required.557 This provision was not taken up again in the draft Articles of the ILC in 1962558 or 1966, and does not feature in the Convention.559 189. This silence does not solve the problem. One can in fact maintain that it is always permissible for parties to amend the treaty by an inter se agreement in accordance with Article 39 of the Vienna Convention and that nothing prevents them from adopting a unanimous agreement560 to this end in matters of reservations.561 This eventuality, according to the consensual principle which impregnates the entire law of treaties,562 does not pose any less difficult problems, first that of knowing whether the absence of an objection by all parties before the deadline of one year is equivalent to unanimous (p. 482) agreement constituting an amendment to the reservation clause. A positive response seems, prima facie, to arise from Article 20(5) of the Convention. 190. But, on reflection, this is not self-evident: the silence of the State party does not imply that it takes a position regarding the validity of the reservation. It signifies, at most, that the reservation is opposable to it563 and that it is prohibited from objecting to it in the future.564 The proof is that it cannot be sustained that the monitoring bodies—whether the ICJ, an arbitral tribunal, or a monitoring organ of a human rights treaty—are prevented from examining the validity of a reservation even when no objection has been made to it.565 In the absence of practice,566 it is difficult to decide on the action which needs to be taken; it is however possible to find inspiration in the solution retained by the ILC on the topic of the late formulation of reservations and to admit that a reservation prohibited by the treaty or manifestly contrary to its object and purpose cannot be formulated ‘except if none of the other contracting parties objects to the late formulation of the reservation’567 after having been duly consulted by the depositary.568 This solution was retained with some nuances by the ILC in guideline 3.3.3.569 191. It seems in any case that, except for remaining dead letter, Article 19 of the Convention has to be interpreted as stating the criteria of ‘intrinsic’ validity of reservations. The effects of these criteria remain to be determined in concreto; it is indispensable to call upon the mechanisms for the examination of the validity of reservations such as those which may be foreseen by the treaty clauses570 or which result from the customary law on reservations featuring in Article 20 of the Vienna Convention. *

*

ALAIN PELLET

Footnotes: 1 Extremely abundant bibliography. The only works appearing here are the most important studies or the most recent excluding, with some exceptions, those concerning reservations to a specific treaty or the practice of certain States regarding reservations. For references regarding more especially certain particular aspects, see the bibliographies in the commentaries on Arts 20–23. The most important studies devoted to the interpretative declarations are also mentioned. 2 See UN Conference on the Law of Treaties, 1st session Vienna, 26 March–24 May 1968, Summary Records of the plenary meetings and of the meetings of the Committee of the Whole (A/CONF.39/11), pp 106–38; ibid, United Nations Conference on the Law of Treaties, 2nd session Vienna, 9 April–22 May 1969, Summary Records of the plenary meetings and of the meetings of the Committee of the Whole (A/CONF.39/11/Add.1), pp 1–47, 181–5, and 220–1. See also, Reports of the Committee of the Whole, A/CONF.39/14, ibid, 1st and 2nd sessions, Vienna, 26 March–24 May 1968 and 9 April–22 May 1969, Documents of the Conference (A/CONF.39/11/Add.2), pp 112, 132–42; and A/CONF.39/15, ibid, pp 239–40; and the Proposals and Amendments submitted to the Plenary Conference, pp 265–667. See also the working document of the Secretariat ‘analytical compilation of comments and observations made in 1966 and 1967 on the final draft articles on the law of treaties’ (A/CONF.39/5 (vol. I)), ibid, pp 158–72. 3 Report of the ILC to the General Assembly on the work of its 46th session, YILC, 1994, vol. II, Part Two, p 179, para. 381. See infra paras 70–3. 4 On all these matters, see the Preliminary Report of the author, as Special Rapporteur of the ILC on Reservations to Treaties (YILC, 1995, vol. II, Part One, p 121, A/CN.4/470); see also the more recent and detailed explanation on the French version of these commentaries: La Convention de Vienne sur le droit des traités—Commentaire article par article (Brussels: Bruylant, 2008), pp 645–73. 5 See Paul Reuter, Introduction au droit des traités (3rd revised and updated edn by P Cahier, Paris: Armand Collin, 1995), pp 4–8. It is only through a disputable abuse of language that one can speak of ‘reservations’ to a bilateral treaty, see supra commentary on Art. 2 of the Vienna Convention by P. Gautier, paras 43 and 44. See also draft guideline 1.5.1 of the ILC's Guidelines on Reservations, ILC Report on the Work of its 51st session (A/54/10), YILC, 1999, vol. II, Part Two, pp 120–4. Even though the technique of multilateral treaties had not yet been stabilized at the time, it can be considered that the first reservation to a multilateral instrument is without doubt the declaration made by the Kingdoms of Sweden and Norway to the Final Act of the Conference of Vienna of 1815, in relation to sovereignty over Lucca and the recognition of Ferdinand IV as King of the Two-Sicilies. 6 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, ICJ Reports 1951, p 15, para. 21. 7 Ibid. See also the Joint Dissenting Opinion of Judges Guerrero, McNair, Read, and Hsu Mo, ibid, p 32. 8 Ibid, p 15. 9 Ibid, p 21. See also p 24 where the Court described this system as resting on a ‘contractual conception of the absolute integrity of the convention as adopted’. For a clear explanation of the contractual thesis, see the statements by Charles Rousseau as agent for France, 14 April 1951, ICJ Pleadings, Oral Arguments, Documents, pp 421–2. 10 The rigidity of the system was attenuated by the fact that, in practice, the absence of objections was considered as an acceptance of the reservation. Cf M. Owen, ‘Reservations to Multilateral Treaties’, Yale LJ, 1928–29, vol. 38, p 1118; F. Horn, Reservations and Interpretative Declarations to Multilateral Treaties (The Hague: TMC Asser Instituut, Swedish Institute of International Law, Studies in International Law, 1988), vol. 5, pp 17–18. See nevertheless the doubts expressed by G. H. Hackworth, Digest of International Law (Washington DC: Government Printing Office, 1943), vol. V, p 130. 11 For an extremely well-argued defence see G. G. Fitzmaurice, ‘Reservations to Multilateral Conventions’, ICLQ, 1953, vol. 2, p 1, passim and esp. at pp 11–12. 12 In practice, the Secretary-General has sought the consent of the signatory States as well, and not only of the States parties. Cf M. Coccia, ‘Reservations to Multilateral Treaties on Human Rights’, California Western Int'l LJ, 1985, vol. 15, p 4; J. M. Ruda, ‘Reservations to Treaties’, RCADI, 1975, vol. 146, p 115. 13 Cf the Joint Dissenting Opinion of Judges Guerrero, McNair, Read and Hsu Mo, supra n 7, p 37: Against this background of principle [that reservations require the consent of other parties to the treaty], the law does not dictate what practice they must adopt, but leaves them free to do what suits them best in the light of the nature of each convention and the circumstances in which it is being negotiated. 14 On the pan-American system, see the bibliography in P. H. Imbert, Les réserves aux traités multilatéraux (Paris: Pedone, 1979), pp 485–6. See also the description given by Imbert himself, ibid, pp 33–8; and M. M. Whiteman, Digest of International Law (Washington DC: Department of State, 1970), vol. 14, pp 141–4; J. M. Ruda, supra n 12, pp 115–33. 15 See Arts 6 and 7 of this Convention. 16 The text is reproduced in Report of the ILC on the work of its 17th session, YILC, 1965,

vol. II, p 79. See also Res. XXIX of 23 December 1938 of the Eighth Panamerican Conference, reproduced ibid, p 80. 17 P.H. Imbert remarks that ‘les États américains respectaient le principe du consentement unanime dans le cadre des conventions élaborées en dehors de l'Union’ (‘the American States respected the principle of unanimous consent in the framework of conventions drafted outside the Union’), supra n 14, p 38, editor's translation. 18 In this sense, J. K. Koh, ‘Reservations to Multilateral Treaties: How International Legal Doctrine Reflects World Vision’, Harvard Int'l LJ, 1982, vol. 23, pp 71, 82–4. 19 See the OAS written arguments in ICJ Pleadings, Oral Arguments, Documents, Reservations to the Genocide Convention, supra n 6, pp 15–20. 20 See the Joint Dissenting Opinion of Judges Guerrero, McNair, Read, and Hsu Mo, supra n 7, p 37. 21 That they only mention furtively, see Reservations to the Genocide Convention, supra n 6, p 25. 22 Cf C. Tomuschat, ‘Admissibility and Legal Effects of Reservations to Multilateral Treaties. Comments on Articles 16 and 17 of the International Law Commission's Draft Articles on the Law of Treaties’, ZaöRV, 1967, p 478; A. Pellet, ‘La CIJ et les réserves aux traités—Remarques cursives sur une révolution inachevée’ in N. Ando, E. McWhinney, and R. Wolfrum (eds), Liber Amicorum Judge Shigeru Oda (The Hague: Kluwer, 2002), p 481, esp. pp 482–503. 23 For a detailed explanation of the facts that gave rise to the request for an Advisory Opinion, see W. Bishop Jr, ‘Reservations to Treaties’, RCADI, 1961, vol. 103, pp 245, 281–6; W. W. Cox, ‘Reservations to Multilateral Conventions’, ASIL Proceedings, 1952, vol. 46, p 26; P. H. Imbert, supra n 14, 59–61; S. Rosenne, Developments in the Law of Treaties 1945–1986 (Cambridge: Cambridge University Press, 1989), 424–8; J.M. Ruda, supra n 12, pp 133–9. For an inventory of the principal commentaries on the Advisory Opinion, see A. Pellet, supra n 22, p 482, fn 5, and Second Report on Reservation to Treaties, 8 April 1999, A/CN.4/478/Rev.1, p 11. For a recent and vigorous critique see L. Lijnzaad, Reservations to UN Human Rights Treaties: Ratify and Ruin? (Dordrecht: Martinus Nijhoff, 1994), pp 15–27. 24 In addition to the Joint Dissenting Opinion of Judges Guerrero, McNair, Read, and Hsu Mo (supra n 7), see the Dissenting Opinion of Judge Alvarez according to whom there is a complete impossibility to make reservations to the Genocide Convention, supra n 6, p 49. 25 ICJ Reports 1951, p 29. 26 ‘If the answer to Question 1 is in the affirmative, what is the effect of the reservation as between the reserving State and: (a) The parties which object to the reservation? (b) Those which accept it?’ 27 ICJ Reports 1951, pp 29–30. 28 Ibid, p 27. 29 See supra n 23 and the short survey of doctrinal reactions in C. Redgwell, ‘Universality or Integrity? Some Reflections on Reservations to General Multilateral Treaties’, BYIL, 1993, vol. 74, pp 245, 252; J. M. Ruda, supra n 12, pp 146–7. See, however, C. de Visscher, Théories et réalités en droit international public (Paris: Pedone, 1970), 291–4 or Les effectivités en droit international public (Paris: Pedone, 1967), 82–5; H Lauterpacht, The Development of International Law by the International Court (London: Stevens, 1958), 186–96, 372–4. 30 First Report on the Law of Treaties, A/CN.4/23, ILC Yearbook, 1950, vol II, 238–42. Cf draft Article 10(3), proposed to the Commission: ‘The acceptance of a treaty subject to a reservation is ineffective unless or until every State or international organization whose consent is requisite to the effectiveness of that reservation has consented thereto’, at p 240. 31 See ILC Yearbook, 1950, vol I, 53rd meeting, 90, and the ILC Report on the work of its second session, ILC Yearbook, 1950, vol II, 381, para. 164. 32 Resolution 478 (V), 16 November 1950. 33 Second Report on the Law of Treaties, A/CN.4/41, in ILC Yearbook, 1951, vol II, 1–17. This report was accompanied by five annexes: A. Summary of debates in the Sixth Committee of the General Assembly; B. Opinions of writers; C. Examples of clauses in conventions regarding reservations; D. Practice with regard to reservations; E. Draft articles on reservations. 34 Ibid, 3–4 (paras 11–12). 35 Ibid, 16–17 (annex E). 36 Report of the ILC, A/1858, in YILC, 1951, p 128, para. 24. 37 Ibid, p 7, para. 28. 38 Ibid, pp 8–9, para. 34. 39 See supra n 7. 40 A/C.6/SR.264–278, General Assembly, Official Documents, 6th session, Sixth Commission, pp 71–153. See also the report of the Sixth Commission, A/2047, ibid, Annex 49, pp 9–12. 41 23 votes to 18, 7 abstentions. 42 S. Rosenne, supra n 23, p 430. For an analysis of the resolution and its scope, see W. Bishop, supra n 23, pp 295–9; C. G. Fenwick, ‘When a Treaty is not a Treaty?’, AJIL, 1952, vol. 46, p 296; J. M. Ruda, supra n 12, pp 151–2. 43 In this sense P. H. Imbert, supra n 14, p 72; K. Zemanek, ‘Some Unresolved Questions Concerning Reservations in the Vienna Convention on the Law of Treaties’ in E. Makarczyk (ed.), Essays in International Law in Honour of Judge Manfred Lachs (The Hague: Martinus

Nijhoff, 1984), p 327. Other authors are more hesitant: S. Rosenne, supra n 23; G. G. Fitzmaurice, supra n 11, p 8. 44 See O. Schachter, ‘The Question of Treaty Reservations at the 1959 General Assembly’, AJIL, 1960, vol. 54, p 372; W. W. Bishop, supra, n 23 297–300; J. M. Ruda, supra n 12, 153–6. 45 See his First Report on the Law of Treaties, A/CN.4/63, YILC, 1953, vol. II, pp 90, 123–36, and Second Report on the Law of Treaties, A/CN.4/87, YILC, 1954, vol. II, pp 131–3. 46 First Report on the Law of Treaties, A/CN.4/101, YILC, 1956, vol. II, pp 115 and 126–7. Fitzmaurice had strongly criticized the ICJ's opinion, see ‘Reservations to Multilateral Conventions’, supra n 11, pp 1–26; and The Law and Procedure of the International Court of Justice (Cambridge: Grotius, 1986), pp 406–27. 47 A/CN.4/144, YILC, 1962, vol. II, pp 60–8. For a general explanation of the report and its discussion by the ILC see J. M. Ruda, supra n 12, pp 161–70. 48 Article 17, para. 1, ibid, p 62. 49 Article 17, para. 2(a), ibid, p 62. 50 Ibid, p 66 (original italics); see also draft Art. 16, ibid, p 59. 51 Ibid, p 62. 52 Article 19, para. 4, ibid, p 71. 53 The draft Articles proposed by Waldock went from three to five, which corresponds to the current structure of Arts 19–23 of the Vienna Convention. 54 The draft Arts 18–22 adopted by the ILC on first reading, together with their commentaries, can be found in the ILC Report on the work of its 14th session (A/5209), YILC, 1962, vol. II, pp 175–82. 55 Ibid, p 178. 56 Ibid, p 176. 57 Draft Art. 20(2)(b); ibid. 58 Ibid, p 178. 59 See General Assembly, Official Documents, 17th session, Sixth Commission, 736th to 744th meetings (A/C.6/SR.736–44), pp 13–56 and A/5287, para 24. 60 Fourth Report on the Law of Treaties, A/CN.4/177 and Add.1 and 2, YILC, 1965, vol. II, pp 45–56 (Arts 18–22). On this report and its discussion by the Commission see J. M. Ruda, supra n 12, pp 171–5. 61 In addition to the observations of governments (A/CN.4/175 and Add.1–5 and A/CN.4/182 and Add.1–3), the Commission had at its disposal the following documents: ‘Resolutions of the General Assembly concerning the Law of Treaties—Memorandum prepared by the Secretariat’, A/CN.4/154, YILC, 1963, vol. II, pp 18–28, paras 106–24, and ‘Depositary practice in relation to reservations Report of the Secretary-General’, A/5687, YILC, 1965, vol. II, pp 75– 106 (Annexes: I. Questionnaire addressed to depositaries; II. Examples of reservation clauses appearing in conventions concluded under the auspices of the United Nations; III. General Assembly resolutions governing the practice of the Secretary-General in respect of reservations). 62 Fourth Report, A/CN.4/177, supra n 60, p 49. 63 See supra para. 19. 64 Fourth Report, A/CN.4/177, supra n 60, p 51. 65 Ibid, pp 50, 54. 66 Ibid, pp 50, 54–5. 67 See ICJ Reports 1951, p 24. For a rigorous analysis of the differences between the Advisory Opinion of 1951 and the system retained by the Commission, see J.K. Koh, supra n 18, 88–95. 68 ILC Yearbook, 1966, vol. I, 887th and 892nd meetings, 11 and 18 July, pp 287 and 326. 69 These Articles were renumbered as follows: Art. 16 (Formulation of reservations); Art. 17 (Acceptance of and objection to reservations); Art. 18 (Procedure regarding reservations); Art. 19 (Legal effects of reservations); Art. 20 (Withdrawal of reservations). 70 Report of the ILC on the work of its 18th session (A/6309/Rev.1), YILC, 1966, vol. II, pp 179–80 and 201–9. 71 YILC, 1965, vol. I, 796th to 801st, 813rd, 814th, and 816th meetings, pp 142–84, 263–74, and 280–6. 72 Report of the ILC on the work of its 18th session supra, n 70, p 202. 73 See supra para. 19. 74 Report of the ILC on the work of its 18th session supra, n 70, p 207. 75 Ibid, p 207, emphasis added. 76 ‘[O]bjections are sometimes made to reservations for reasons of principle or policy without the intention of precluding the entry into force of the treaty between the objecting and reserving States’, Report of the ILC on the work of its 18th session, supra n 70, p 207. 77 See, notably, I. Sinclair, The Vienna Convention on the Law of Treaties (2nd edn, Manchester: Manchester University Press, 1984), pp 61–3; K. Zemanek, supra n 43, pp 328– 30. For an analysis of the differences between the ILC draft and the text of the Convention, see

J. K. Koh, supra n 18, pp 95 ff. 78 A/CONF.39/C.1/L.136, see Reports of the Committee of the Whole (A/CONF.39/14), Documents of the Conference (A/CONF.39/11/Add.2), supra n 2, p 133. 79 Corresponding to Art. 16(b) of the ILC draft. See also infra para 85. 80 V.A/CONF.39/L.3, Documents of the Conference (A/CONF.39/11/Add.2), supra n 2, p 137. The Committee of the Whole has already rejected previous similar amendments presented by Syria (A/CONF.39/C.1/L.97), Czechoslovakia (A/CONF.39/C.1/L.85), and the USSR (A/CONF.39/C.1/L.115). 81 See supra para. 24(2). 82 Article 20(4)(b). 83 Summary Records (A/CONF.39/11/Add.1), supra n 2, 10th plenary meeting, p 34, para. 74. The Soviet amendment was approved with 49 votes to 21, with 30 abstentions, ibid, p 35, para. 79. 84 See A. Pellet, Second Report on Reservations to Treaties, A/CN.4/477/Add.1, ch. II: Unity or diversity of the legal regime for reservations to treaties (reservations to human rights treaties), YILC, 1996, vol. II, Part One, pp 52–82, paras 55–260. 85 Tenth Report, A/CN.4/341 and Add.1/Corr.1, YILC, 1981, vol. II, Part One, p 56, para. 53. 86 ICJ Reports 1951, supra n 6, p 24. 87 Joint Dissenting Opinion of Judges Guerrero, McNair, Read, and Hsu Mo, supra n 7, p 47. 88 Dissenting Opinion Judge Alvarez, supra n 24, p 51. 89 Ibid, p 53. 90 See infra paras 35–46. 91 On the unchanged sides of the dispute see eg J. L. Brierly, Report on reservations to multilateral conventions, A/CN.4/41, supra n 33, pp 3–4, paras 11, 12, 16; ILC Report A/1858, of the same year, supra n 36, p 129, para. 26; see also J. K. Gamble Jr, ‘Reservations to Multilateral Treaties: A Macroscopic View of State Practice’, AJIL, 1980, vol. 74, pp 372–3; B. T. Halajczuk, ‘Les conventions multilatérales entre l'universalité et l'intégrité’, RDI, 1960, vol. 38, pp 38–50 and 147–58; P. H. Imbert, supra n 14, pp 461–4; W. A. Schabas, ‘Reservations to Human Rights Treaties: Time for Innovation and Reform’, Canadian Yearbook of Int'l L, 1994, vol. 32, pp 39, 40–1, or ‘Reservations to the Convention on the Rights of the Child’, Human Rights Quarterly, 1996, vol. 18, p 472; G. Teboul, ‘Remarques sur les réserves aux conventions de codification’, RGDIP, 1982, vol. 86, pp 679, 682–3. 92 Cf the First Report of H. Lauterpacht on the law of treaties, where he explains that the problem of consent constitutes ‘a question closely, though indirectly, connected with that of the intrinsic justification of reservations’, A/CN.4/63 in YILC, 1953, vol. II, p 125. 93 P. Reuter, supra n 5, pp 20–1. 94 C. Tomuschat, supra n 22, p 466. See, in this sense The SS Wimbledon, PCIJ, Series A, no. 1, p 25; International Status of South West Africa, ICJ, Advisory Opinion, 11 July 1950, ICJ Reports 1950, p 139. 95 See W. Bishop Jr, supra n 23, p 255. 96 Reservations to the Genocide Convention, supra n 6, p 21. The authors of the Dissenting Opinion stated this idea in a much stronger way: The consent of the parties is the basis of treaty obligations. The law governing reservations is only a particular application of this fundamental principle, whether the consent of the parties to a reservation is given in advance of the proposal of the reservation or at the same time or later. (pp 31–2) See also the award in the Delimitation of the Continental Shelf (United Kingdom of Great Britain and Northern Ireland and the French Republic), ILR, 1977, vol. 54, pp 6, 51–2, paras 60–1. 97 On this element of flexibility, see A. Aust, Modern Treaty Law and Practice (Cambridge: Cambridge University Press, 2000), pp 124–6; J. K. Gamble Jr, supra n 91, pp 383–91; P. H. Imbert, supra n 14, pp 162–230; Lord McNair, The Law of Treaties (Oxford: Clarendon Press, 1961), pp 169–73; J. Polakiewicz, Treaty-Making in the Council of Europe (Strasbourg: Conseil de l'Europe, 1999), pp 85–90, 101–4; R. Riquelme Cortado, La reservas a los tratados— Formulación y ambigüedades del régimen de Viena (Murcia: Universidad de Murcia, 2004), pp 89–136. 98 On this notion, see A. Pellet, ‘“Human Rightism” and International Law’, IYBIL, 2001, vol. 10, p 3. 99 These are, as a general rule, more numerous than the reservations made to treaties concerning other fields: see B. Clark, ‘The Vienna Convention Reservations Regime and the Convention on Discrimination Against Women’, AJIL, 1991, vol. 85, pp 281, 316–20; W. A. Schabas, supra n 91, p 42. 100 On this specific question, see the bibliography related to ‘General studies on reservations to human rights treaties’ at the beginning of this commentary; see also the text dedicated to this question in the French version of the present commentary, supra n 4, pp 679–96. 101 See infra the commentaries on these provisions. 102 ‘Nothing in the Vienna Convention suggests that a special regime applies to human rights treaties or to a particular type of treaty which type includes human rights treaties’, F. Hampson, ‘Reservations to Human Rights Treaties’, Final working paper,

E/CN.4/SUB.2/2004/42, para. 6. 103 See supra paras 7–20. 104 It is not without interest to mention that, when they thought it useful, both the ILC and later the Vienna Conference did not hesitate to introduce rules applicable to treaties related to specific domains—cf Art. 60(5) on ‘provisions relating to the protection of the human person contained in treaties of a humanitarian character’. 105 See eg ILC Report on the work of its 3rd session (A/1858), YILC, 1951, vol. II, p 129, para. 28; ILC Report (A/6309/Rev.1) of 1966, supra n 70, p 225, or the rejection by the Vienna Conference of a US amendment aiming at introducing the criterion of the ‘character’ of the treaty among the elements to be taken into consideration to assess the admissibility of a reservation, A/CONF.39/C.1/L.126 and Add.1, see Reports of the Committee of the Whole (A/CONF.39/14), Documents of the Conference (A/CONF.39/11/Add.2), supra n 2, p 134; Summary Records (A/CONF.39/11), 1st session, 21st meeting of the Committee of the Whole, supra n 2: United States (107–8, 130–1), Spain (109), or China (121), and against: Ukraine (114–15), Poland (118), Ghana (119), Italy (120), Hungary (121–2), Argentina (129–30), and USSR (134). See also the US reaction to the rejection of the proposed amendment: Summary Records, 10th plenary meeting, 2nd session (A/CONF.39/11/Add.1), supra n 2, p 35. 106 On these preliminary conclusions, see: E. A. Baylis, ‘General Comment 24: Confronting the Problem of Reservations to Human Rights Treaties’, Berkeley J of Int'l L, 1999, vol. 17, pp 277, 322–6; B. Simma, ‘Reservations to Human Rights Treaties—Some Recent Developments’ in G. Hafner (ed.), Liber Amicorum Professor Seidl-Hohenveldern—In Honour of his 80th Birthday (The Hague: Kluwer, 1998), pp 676–9; K. Korkelia, ‘New Challenges to the Regime of Reservations under the International Covenant on Civil and Political Rights’, EJIL, 2002, vol. 13, pp 437, 468–71. 107 Report of the ILC on the work of its 49th session (A/52/10), YILC, 1997, vol. II, Part Two, p 57. 108 See the Second Report, A/CN.4/477/Add.1, YILC, 1996, vol. II, Part One, pp 52–82, paras 55–260. 109 See A/C.6/52/SR.17 to 25. 110 See A. Pellet, Third Report on reservations to treaties, A/CN.4/491, YILC, 1998, vol. II, Part One, p 231, para. 16; Fifth Report on reservations to treaties, A/CN.4/508, pp 4–9, paras 10–15. 111 Since the Guide to Practice on reservations to treaties as provisionally adopted by the ILC in 2010 covers those issues (see in particular Sub-Section 3.2, ‘Assessment of the permissibility of reservations’, which includes several guidelines on the competence of treaty monitoring bodies in this respect), it is likely that the Commission will not adopt final Conclusions on these issues. 112 Preliminary conclusions, supra n 106, p 57, para. 5. 113 Ibid, p 57, para. 10. 114 For an exhaustive explanation of the positions of the human rights treaties control organ, see D. W. Greig, ‘Reservations: Equity as a Balancing Factor?’, Australian Yearbook of Int'l L, 1995, vol. 16, pp 21, 90–107; R. Riquelme Cortado, supra n 97, pp 345–53. In particular, in relation to the European Convention on Human Rights, see I. Cameron and F. Horn, ‘Reservations to the European Convention on Human Rights: The Belilos Case’, GYIL, 1990, vol. 33, pp 69, 88–92. 115 See supra para. 32. 116 Memorandum addressed by the Secretariat to the Director of the Division of Human Rights in UNJY, 1976, pp 220–1, and the Note of the Secretary General, CERD/C/R.93, largely relied upon in the Report of the Committee for the Elimination of Racial Discrimination to the General Assembly (A/33/18), para. 374. On the position of the Committee on the Elimination of Discrimination Against Women, see B. Clark, supra n 99, pp 283–9. On the initial carefully ambiguous attitude of the Human Rights Committee, see M. G. Schmidt, ‘Reservations to United Nations Human Rights Treaties—The Case of the Two Covenants’ in J. P. Gardner (ed.), Human Rights as General Norms and a State's Right to Opt Out—Reservations and Objections to Human Rights Conventions (London: BIICL, 1997), p 24. 117 Application no. 9116/80, Report of 5 May 1982, para. 65. See notably G. Cohen-Jonathan, La Convention européenne des Droits de l'homme (Paris: Economica, 1989), pp 86–93; P. H. Imbert, ‘Les réserves à la Convention européenne des Droits de l'homme devant la Commission de Strasbourg (Affaire Temeltasch)’, RGDIP, 1983, vol. 87, p 580 (also published in English: ‘Reservations to the European Convention on Human Rights Before the Strasbourg Commission: The Temeltasch Case’, ICLQ, 1984, vol. 33, p 558). 118 Temeltasch case, p 17, para. 65. 119 Ibid, pp 18–22, paras 68–82. Article 64 became Art. 57 after the entry into force of Protocol XI. 120 Temeltasch case, pp 22–5, paras 83–92. 121 Series A, no. 132, p 1. See, notably, H. J. Bourguignon, ‘The Belilos Case: New Light on Reservations to Multilateral Treaties’, VaJIL, 1988–89, vol. 29, p 347; I. Cameron and F. Horn, supra n 114, pp 69–129; G. Cohen-Jonathan, ‘Les réserves à la Convention européenne des Droits de l'homme (à propos de l'arrêt Belilos du 29 avril 1988)’, RGDIP, 1989, vol. 93, p 273; R. W. Edwards Jr, ‘Reservations to Treaties: The Belilos Case and the Work of the International Law Commission’, Toledo L Rev, 2000, vol. 31, p 195; R. J. Stuart MacDonald, ‘Reservations Under the European Convention on Human Rights’, RBDI, 1988, vol. 21, p 29; and S. Marks,

‘Reservations Unhinged: The Belilos Case Before the European Court of Human Rights’, ICLQ, 1990, vol. 39, p 300. 122 Belilos case, paras 40–9. 123 Ibid, para. 60; see paras 51–9. 124 Ibid, para. 50. 125 See Chrysostomos et as v Turkey, Application nos 15299/89, 15300/89, and 15318/89, ECommHR, 4 March 1991; F and ML v Austria, Application no. 18249/91, ECommHR, 6 September 1994; Gradinger v Austria, Application no. 15963/90, ECommHR, 19 May 1994 and ECtHR, 23 October 1995, Series A, no. 328-C, para. 51; Loizidou v Turkey, Application no. 15318/89, ECtHR, Preliminary Objections, 23 March 1995, Series A, no. 310, para. 95; Fischer v Austria, Application no. 16922/90, ECtHR, 26 April 1995, Series A, no. 312, paras 36–42; Stallinger and Kuso v Austria, Application nos 14696/89 and 14697/89, ECommHR, 7 December 1995, and ECtHR, 23 April 1997, RCADI, 1997-II, paras 40–9; Pauger v Austria, Application no. 16717/90, ECtHR, 28 May 1997, RCADI, 1997-III, para. 54; Helle v Finland, Application no. 20772/92, ECommHR, 15 October 1996 and ECtHR, 19 December 1997, RCADI, 1997-VIII, paras 43–4 (concluding that the reservation is valid); Jėčius v Lithuania, Application no. 34578/97, ECommHR, 11 September 1999 and ECtHR, 31 July 2000, RCADI, 2000-IX, paras 77–81 (concluding that the reservation is valid); Eisenstecken v Austria, Application no. 29477/95, ECtHR, 3 October 2000, RCADI, 2000-X, paras 21–30; Kolb and others v Austria, Application nos 35021/97 and 45774/99, ECtHR, 17 April 2003, para. 59; Richter v Austria, Application no. 4490/06, ECtHR, 18 December 2008, para. 35. For its part, in its third Advisory Opinion, dated 8 September 1983 on Restrictions to the Death Penalty (Arts. 4(2) and 4(4) American Convention on Human Rights), the Inter-American Court of Human Rights considered that certain reservations made by Guatemala to the Convention were not admissible, see OC-3/83, 8 September 1983, Series A, no. 3. 126 Human Rights Committee, General Comment 24, CCPR/C/21/Rev.1/Add.6, 11 November 1994. 127 Ibid, para. 18. 128 Which rests on a confusion between the ‘severability’ of the provisions of a treaty— established by Art. 44 of the Convention—and the ‘severability’ of the consent of the State party, which has no legal or logical basis. See A. Pellet, Second Report on reservations to treaties, A/CN.4/477/Add.1, supra n 84, pp 78–9, paras 220–30. 129 General Comment 24, supra n 126, para. 18. 130 Communication No 845/1999, Rawle Kennedy v Trinidad and Tobago, CCPR/C/67/D/845/1999, para. 6.7. This decision led the concerned State to denounce the optional protocol (see Multilateral Treaties Deposited with the Secretary-General (MTDSG), available at: http://treaties.un.org/pages/ParticipationStatus.aspx—Status as at 13 December 2010, ch. IV.5, fn 1), which did not impair the Committee, in a later decision of 26 March 2002, to consider that Trinidad and Tobago had breached multiple provisions of the 1966 Covenant that were covered by the reservation. See Rawle Kennedy v Trinidad and Tobago, Communication No. 845/1998, CCPR/C/74/D/845/1998. See also infra para. 121 and n 360. 131 See the decisions in Belilos, supra n 121, para. 60; Loizidou, supra n 125, paras 94, 97. 132 See supra para. 37. 133 Paragraph 2 of this guideline contains a non-exhaustive list of the factors relevant to identify the intention of the autor of the reservation. For the commentary of this guideline, see Report of the ILC (2010) (A/65/10), pp 192–208. While this solution was approved by a majority of States during the debates of the Sixth Committee in 2010, the vociferous opposition of several influential States will probably incite the Commission to turn to revise guideline 4.5.2. 134 B. Simma, supra n 106, p 662. In the same sense L. Sucharipa-Behrmann, ‘The Legal Effects of Reservations to Multilateral Treaties’, ARIEL, 1996, vol. 1, pp 67, 87. For a particularly critical view, see L. Lijnzaad, supra n 23, passim, esp. p 37. 135 See R. Riquelme Cortado, supra n 97, passim. See also A. Pellet, Preliminary Report A/CN.4/470, YILC, 1995, vol. II, Part One, pp 126–37, paras 91–135. 136 The word ‘permissibility’ is better translated in French as ‘validité’; as to the precise respective meanings of the words ‘permissibility’ and ‘validity’ in English, see infra para. 184. 137 On these two schools see J. K. Koh, supra n 18, pp 71–116, passim and esp. pp 75–7; see also C. Redgwell, supra n 29, pp 243–82, esp. pp 263–9; R. Riquelme Cortado, supra n 97, pp 73–82; and I. Sinclair, supra n 77, p 81, fn 78. 138 D. W. Bowett, ‘Reservations to Non-Restricted Multilateral Treaties’, BYIL, 1976–77, vol. 48, pp 67, 88. 139 J. M. Ruda, supra n 12, p 190. For similar points of view, see J. Combacau, Le droit des traités (Paris: PUF, 1991), p 60; and ‘Logique de la validité contre logique de l'opposabilité dans la Convention de Vienne sur le droit des traits’ in Le droit international au service de la paix, de la justice et du développement—Mélanges Michel Virally (Paris: Pedone, 1991), p 200; G. Gaja, ‘Unruly Treaty Reservations’ in Le droit international à l'heure de sa codification. Etudes en l'honneur de Roberto Ago (Milan: Giuffrè, 1987), vol. I, pp 313–20; P. H. Imbert, supra n 14, pp 134–7; P. Reuter, supra n 5, p 74; K. Zemanek, supra n 43, pp 331–3. 140 J. M. Ruda, supra n 12, p 190. 141 D. W. Bowett, supra n 138, p 88. 142 Whereas this is not the case in practice, see supra paras 41–3.

143 This list is based on a similar list appearing in A. Pellet, Preliminary Report, A/CN.4/470, YILC, 1995, vol II, Part One, p 146, para. 124. See also A. Aust, supra n 97, p 123. 144 See supra para. 7. 145 See supra paras 14–20. 146 See supra paras 25–6. 147 In this sense, see notably D. H. Hylton, ‘Default Breakdown: The Vienna Convention on the Law of Treaties—Inadequate Framework on Reservations’, Vanderbilt J Trans'l L, 1994, vol. 27, pp 419, 423. 148 See the general notice which appeared at the beginning of the draft: ‘it is not practicable to determine into which category each provision falls’ in ILC Report 1966, A/6309/Rev.1, supra n 70, p 177, para. 35. 149 See R. R. Baxter, ‘Treaties and Customs’, RCADI, 1970, vol. 129, pp 25, 48. 150 R. W. Edwards Jr, ‘Reservations to Treaties’, Michigan J Int'l L, 1989, vol. 10, pp 362, 365; see also R. Riquelme Cortado, supra n 97, pp 139–43; T. L. McDorman, ‘Reservations and the Law of the Sea Treaty’, Journal of Maritime Law and Commerce, 1982, vol. 13, pp 481, 499; L. Lijnzaad, supra n 23, who concedes, apparently with some regret, that ‘though these provisions were progressive development rather than codification at the time of the drafting of the Vienna Convention, they have [been] by now accepted as the law to be applied to reservations’, at p 76. 151 The relevant Articles were adopted with the following voting record: Art. 19, 92 votes to 4, with 7 abstentions; Art. 20: 83 votes to 0, with 7 abstentions; Arts 21, 22, and 23 were adopted with the respective following majorities: 94, 98, and 90 to 0, see Summary Records, A/CONF.39/11/Add.1, 2nd session, 10th and 11th plenary meetings, supra n 2, pp 30, 35, 36, 38. As indicated by P. H. Imbert: ‘[l]e vote n’étant pas nominatif, il est impossible de savoir quels sont les États qui ont voté contre' (‘votes not being nominative, it is impossible to know which States voted against’ Art. 19 [editor's translation]); Australia and Japan had indicated they would abstain, ibid, pp 14, 81, fn 15. 152 See eg for the United Kingdom, the statement of Sir Ian Sinclair, ‘The Vienna Convention on the Law of Treaties: The Consequences of Participation and Nonparticipation, ASIL Proceedings, 1984, vol. 78, pp 271, 273–4; for the United States, the statement by R. E. Dalton, ibid, pp 276, 278. The Third Restatement of Foreign Relations Law of the United States (St Paul: American Law Institute, 1987) generally adopts the rules of the 1969 Vienna Convention and adds a few specifications better to reflect the needs of US practice. On this question, see (in relation to the Second Restatement), C. L. Piper, ‘Reservations to Multilateral Treaties: The Goal of Universality’, Iowa L Rev, 1985–86, vol. 71, pp 295, 317. 153 See F. Coulée and E. Paillard, ‘Pratique française du droit international—2001’, AFDI, 2001, vol. 47, pp 555, 579; J. F. Lachaume, ‘Conseil d’État et réserves aux traités et accords internationaux' in Apprendre à douter—Mélanges Claude Lombois (Limoges: PULIM, 2004), p 851. 154 Supra n 96, esp. p 52, para. 61. 155 Ibid, pp 42–3, paras, 37–8. 156 See paras 32, 33, and 40 of the Order concerning Spain, ICJ Reports 1999, pp 761, 772, 774; and paras 24, 25, and 34 of the Order concerning the United States, ICJ Reports 1999, pp 916, 924, 926. 157 Judgment of 3 February 2006, Armed activities on the territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v Rwanda), Jurisdiction of the Court and Admissibility of the Application, ICJ Reports 2006, p 32, para. 67, p 35, para. 78. See also the Court's Order of 10 July 2002, ICJ Reports 2002, p 246, para. 72. 158 See eg Temeltasch case, ECommHR, supra n 117, para. 68; General Comment No. 24, Human Rights Committee, supra n 126, para. 6. See also Art. 75 of the Covenant of San José. On this clause, see A. E. Montalvo, ‘Reservations to the American Convention on Human Rights: A New Approach’, American Univ Int'l L Rev, 2000–01, vol. 16, p 269, esp. p 277; for instances of the application of Art. 75, see the following Advisory Opinions of the InterAmerican Court of Human Rights: ‘Other treaties’ subject to the advisory jurisdiction of the Court (Art. 64 American Convention on Human Rights), Advisory Opinion OC-1/82, 24 September 1982, Series A, no. 1; The Effect of Reservations on the Entry into Force of the American Convention on Human Rights (Arts 74 and 75), Advisory Opinion OC-2/82, 24 September 1982, Series A, no. 2; Restrictions to the Death Penalty, supra n 125. 159 See Note by the Secretary-General, Effective implementation of international instruments on human rights, including reporting obligations under international instruments on human rights, A/49/537, 19 October 1994, para. 30. 160 See the examples in A. Pellet, Second Report on reservations to treaties, A/CN.4/477, fn 49 and Add.1, YILC, 1996, vol. II, Part One, p 69, para. 172; R. Riquelme Cortado, supra n 97, pp 116–20. 161 In relation to the Covenant on Civil and Political Rights, see P. H. Imbert, supra n 14, pp 223–4, 411–12; R Higgins, ‘Derogations under Human Rights Treaties’, BYIL, 1976–77, vol. 48, pp 281, 317–18. On ‘Reservations to the Additional Protocols to the Geneva Conventions on the Protection of the Victims of War’, see. J Gaudreau, ‘Les réserves aux Protocoles additionnels aux Conventions de Genève pour la protection des victimes de la guerre’, IRRC, 2003, vol. 85, pp 143–4. 162 R. Higgins, ‘Introduction’ in J. P. Gardner (ed.), supra n 116, p xxi; this remark is all the more relevant since its author inspired the Human Rights Committee's General Comment No.

24. 163 Report of the ILC on the work of its 49th session (A/52/10), supra n 107, p 57, para. 1. 164 Report of the ILC (2006) (A/61/10), pp 327, 328, para. 1 of the commentaries. 165 As demonstrated by Gaja, in a detailed analysis, the practice of States in relation to the Convention does not rigorously comply with the Convention, see supra n 139. 166 See supra paras 47–54. 167 See R. W. Edwards Jr, supra n 150, p 405. 168 A. Aust, supra n 97, p 107; contra: L. Lijnzaad, supra n 23, p 53. 169 See the Report of the ILC on the work of its 45th session (A/48/10), YILC, 1993, vol. II, Part Two, p 96, paras 428–9. 170 See infra para. 140. Since then, the interest of States on this subject has not declined, as was noted by an informed observer: ‘In 1997, the Sixth (Legal) Committee of the UN General Assembly discussed that year's report of the International Law Commission. There were fortyseven speakers—evidence of the importance attached to the subject’, see A. Aust, supra n 97, p 124. 171 See the Report of the ILC on the work of its 46th session (A/49/10), YILC, 1994, vol. II, Part Two, p 178, para. 381. For a general discussion of the ILC's resumption of work on this matter, see A. Tanzi, ‘The Resumed Codification of the Law of Reservations to Treaties’ in T. Treves (ed.), ‘Six Studies on Reservations’, Communicazioni e Studi, 2002, vol. XXII, pp 9–34. 172 Preliminary Report, A/CN.4/470 and Corr.1 and 2 (78 pages); Second Report, A/CN.4/477 (23 pages), Add.1 (90 pages); and A/CN.4/478 (bibliography) (22 pages); Third Report, A/CN.4/491 and Add.1–6 (127 pages); Fourth Report, A/CN.4/508 and Add.1 and 2 (84 pages); Add.3 and 4 (34 and 7 pages respectively); Sixth Report, A/CN.4/518 (9 pages) and Add. 1–3 (29, 16, and 7 pages respectively); Seventh Report, A/CN.4/526 (22 pages) and Add.1–3 (12, 42, and 13 pages respectively); Eighth Report, A/CN.4/535 (20 pages) and Add.1 (17 pages); Ninth Report, A/CN.4/544 (9 pages); Tenth Report, A/CN.4/558 (24 pages) and Add.1 (40 pages) and 2 (32 pages); Eleventh Report, A/CN.4/574 (65 pages); Twelfth Report, A/CN.4/584 (33 pages); Thirteenth Report, A/CN.4/600 (25 pages); Fourteenth Report, A/CN.4/614 (34 pages) and Add.1 (31 pages), Fifteenth Report, A/CN.4/624 (32 pages) and Add.1 (53 pages) and Add.2 (18 pages); Sixteenth Report, A/CN.4/624 (43 pages) and Add.1 (7 pages)—a total of 1,100 pages. Besides introducing a final version of the Guide to Practice in view of the Observations of States and intenl organisations, in his 17th and last Report, the Special Rapporteur envisages to propose the text of two annexes to the Guide to practice relating respectively to the ‘Reservation dialogue’ and the ‘Implementation of the Guide’. 173 Report of the ILC on the work of its 47th session (A/50/10), YILC, 1995, vol. II, Part Two, p 108, para. 487. 174 For a critical commentary of this decision, see A. Tanzi, supra n 171, pp 26–33. 175 See Report of the ILC on the work of its 45th session, supra n 169, p 96, para. 430. 176 However, the Guidelines include not only reservations (and interpretative declarations) made by States, but also those formulated by international organizations. Consequently, the Guide to practice reproduces (when necessary) the more complete provisions of the 1986 Convention rather than those of the 1969 Convention. 177 Preliminary Report, supra n 4, A/CN.4/470, p 153, para. 166. 178 For the complete text see Report of the ILC on the work of its 62nd session (A/65/10), pp 36–73, para. 123. These drafts concern both reservations stricto sensu and interpretative declarations. Interpretative declarations constitute one of the most surprising lacunae of the Vienna Convention, which does not contain any provision on the matter; see the commentary to guideline 1.2 (‘Definition of interpretative declaration’) of the Guide to Practice on reservations to treaties, YILC, 1999, vol. II, Part Two, pp 97–103. 179 Cf J. M. Ruda, supra n 12, p 180. 180 Commentary on draft Art. 18, YILC, 1962, vol. II, p 180, para. 15; see also the commentary on draft Art. 16 adopted in second reading, YILC, 1966, vol. II, Part Two, p 207, para. 17. 181 See supra paras 2–4. In its observations on draft Art. 18 adopted by the ILC in 1962, Japan proposed to return to the reverse presumption (see H .Waldock, Fourth Report on the law of treaties, A/CN.4/177, supra n 60, p 46). 182 On this point see infra para. 74. 183 See eg the drafts of Art. 10(1) prepared by Brierly in 1950, A/CN.4/23, supra n 30, p 238; nine of the drafts prepared by H. Lauterpacht, First Report, A/CN.4/63, pp 91–2; Second Report, A/CN.4/87, supra n 45, p 131; or Art. 39(1) of the draft prepared by G. G. Fitzmaurice, YILC, 1956, vol. II, p 115. See the remarks by P. H. Imbert, supra n 14, pp 88–9. 184 Commentary on Art. 17, First Report, A/CN.4/144, supra n 47, p 65, para. 9—original emphasis; for the text of the Article, see ibid, pp 60–1. 185 It is limited in time, since the formulation of reservations can only occur at the time of ‘signing, ratifying, acceding to or accepting a treaty’. In this sense, Art. 19 takes up a limitation that appears in the definition of reservation contained in Art. 2(1)(d) of the Convention. This superfluous repetition was rightly criticized by Denmark in 1962, see H. Waldock, Fourth Report on the law of treaties, A/CN.4/177, supra n 60, p 46. 186 See infra the commentary on this provision, paras 96–105.

187 See supra para. 34, and in particular, n 97. 188 ‘[T]he preliminary clause of article 19 recognizes a right of States; but it is only the right to “formulate” reservations’ (editor's translation), P. H. Imbert, supra n 14, p 83. See also P. Reuter, supra n 5, p 75; R. Riquelme Cortado, supra n 97, p 84. It can also be mentioned that a proposal made by Briggs for the replacement of the phrase ‘a state is free’, which appeared in the Waldock's draft (First Report, A/CN.4/144, supra n 47, Art. 17(1)(a), p 60) with ‘a state is legally entitled’ (YILC, 1962, vol. I, 651st meeting, 25 May 1962, p 140, para. 22) was not adopted. An amendment in this sense proposed by the USSR during the Vienna Conference was also rejected, A/CONF.39/C.1/L.115, Documents of the Conference (A/CONF.39/11/Add.2), supra n 2, p 144, para. 175. The current wording (‘a State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation unless…’) was adopted by the ILC's Drafting Committee, see YILC, 1962, vol. I, 663rd meeting, 18 June 1962, p 221, para. 3 and then by the ILC in plenary meeting, YILC, 1962, vol. II, pp 175–6, Art. 18(1). It was not substantially modified in 1966, although the words ‘Tout État’ were replaced with the words ‘Un État’ in the French text, see YILC, 1965, 813rd meeting, 29 June 1965, p 264, para. 1 (text adopted by the Drafting Committee) and YILC, 1966, vol. II, p 202 (Art. 16 adopted in second reading). 189 Cf D. W. Greig, supra n 114, p 22. 190 See the chapeau of Art. 21 and, infra the commentary on this provision, at para. 18. 191 See Arts 20(3)–(5), 21(1), and 23(1)–(3), and infra the corresponding commentaries. See also M. Coccia, supra n 12, p 28. 192 See H. Waldock, First Report, A/CN.4/144, supra n 47, p 62, para. 1 of the commentary on draft Arts 17–19. 193 A/CONF.39/C.1/L.161, Documents of the Conference (A/CONF.39/11/Add.2), supra n 2, p 133, para. 177. 194 See Summary Records (A/CONF.39/11), supra n 2, 23rd meeting, 11 April 1968, p 121, para. 2 (explanations by China) and 24th meeting, 16 April 1968, p 125, para. 13 (intervention of Waldock, expert consultant of the Conference A/CN.4/144e). 195 H. Waldock, First Report, A/CN.4/144, supra n 47, p 62, para. 1 of the commentary on draft Arts 17–19. 196 Ibid, p 60. 197 An hypothesis which is envisaged in draft Art. 17(2), although quite differently from the current text of Art. 19, see infra para. 98. 198 H. Waldock, First Report, A/CN.4/144, supra n 47, p 65, para. 9 of the commentary. 199 Draft Art. 18(1)(b), (c), and (d), ILC Report (A/5209), 1962, supra n 54, pp 175–6 (see the commentary on this paragraph, p 180, para. 15). 200 To the contrary, during the discussion of the draft, Briggs had considered that ‘the distinction was between the case set out in sub-paragraph (a), where all reservations were prohibited, and the case set out in sub-paragraphs (b) and (c), where only some reservations were either expressly prohibited or impliedly excluded’, in YILC, 1962, vol. I, 663rd meeting, 18 June 1962, p 222, para. 12; contra: Waldock, ibid, p 223, para. 32; this remark is highly relevant as shown by the example of Art. 12 of the 1958 Convention on the Continental Shelf (infra para. 88). 201 Although the principle was not contested during the discussions of the plenary meetings in 1965 (it had been contested by Lachs in 1962, YILC, 1962, vol. I, 651st meeting, 25 May 1962, p 142, para. 53) and was maintained in the text adopted during the first part of the 17th meeting (YILC, 1965, vol. II, pp 161–2), this specification disappeared without explanation from draft Art. 16 adopted by the Drafting Committee, see YILC, 1966, vol. I, 887th meeting, 11 July 1966, p 295, para. 91. The suppression of this expression must be seen in light of the general safeguard clause concerning ‘any treaty which is the constituent instrument of an international organization and to any treaty adopted within an international organization’, which appears in Art. 5 of the Convention and which was adopted in its final draft on that same day by the ILC (ibid, p 294, para. 79). In practice, it is exceptional that reservations may be formulated to treaties establishing international organizations, see M. H. Mendelson, ‘Reservations to the Constitutions of International Organizations’, BYIL, 1971, vol. 45, p 137. In relation to treaties adopted within an international organization, the best example of a (supposed) exclusion of reservations is that of the ILO, whose constant practice is not to accept the deposit of instruments of ratification of international labour conventions when these instruments are accompanied by reservations, cf Memorandum by the Director of the International Labour Organization to the Council of the League of Nations on the admissibility of reservations to general conventions, JOSdN, 1927, p 882, or the written statement of the ILO to the ICJ in 1951 in relation to the Advisory Opinion on Reservations to the Genocide Convention, Pleadings, Oral Arguments, Documents, pp 216, 227–8, or the ILO Memorundum, ibid, p 234. For an explanation and critical discussion of this position, see the commentary on guideline 1.1.8 of the Guide to practice, in Report of the ILC on the work of its 52nd session (A/55/10), YILC, 2000, vol. II, Part Two, pp 108–9, paras 3–5. 202 Fourth Report, A/CN.4/177, supra n 60, p 50. 203 On the amendments made by the Commission to the wording of the Article, see the debates on draft Art. 18 (YILC, 1965, vol. I, esp. 797th and 798th meetings, 7 and 9 June 1965, pp 147–63) and the text adopted by the Drafting Committee (ibid, 813rd meeting, 29 June 1965, pp 263–4, para. 1). The final text of Art. 16(a) and (b) adopted in second reading by the Commission read: ‘A State may…formulate a reservation unless: (a) The reservation is prohibited by the treaty; (b) The treaty authorizes specified reservations which do not include

the reservation in question’, YILC, 1966, vol. II, p 179. See also infra n 233. 204 The ‘alternative drafts’ proposed de lege ferenda in 1953 by H. Lauterpacht (see supra para. 17) mentioned together treaties that ‘[do] not prohibit or [that] restrict the faculty of making reservations’, First Report, A/CN.4/63, YILC, 1953, vol. II, pp 91–2. 205 Supra n 22, p 469. 206 See supra para. 75. 207 See, nevertheless, the intervention by Yasseen, YILC, 1965, vol. I, 797th meeting, 8 June 1965, p 149, para. 19—although he was referring to the text of 1962. 208 Just as ‘expressly or impliedly authorized’, YILC, 1966, vol. II, p 205, para. 10 of the commentary. See also p 207, para. 17 of the commentary. 209 See supra para. 75. The Special Rapporteur indicated that in drafting this clause he was thinking about ‘the Charter of the United Nations which, by its nature, was not open to reservations’, YILC, 1962, vol. I, 651st meeting, 25 May 1962, p 143, para. 60. This exception is covered by the safeguard clause of Art. 5 of the Convention. The expression ‘character of the treaty’ did not attract much attention during the discussion in the Commission (Castrén considered the expression to be vague, ibid, 652nd meeting, 28 May 1962, p 148, para. 28; see also Verdross, ibid, p 149, para. 35). It was eventually deleted by the Drafting Committee, ibid, 663rd meeting, 18 June 1962, p 221, para. 3. 210 Amendments proposed by Spain (A/CONF.39/C.1/L.147), the United States, and Colombia (A/CONF.39/C.1/L.126 and Add.1), aiming to reintroduce the notion of the ‘character of the treaty’ in para. (c) were either retired or rejected during the Vienna Conference. 211 This is, moreover, the final conclusion of C. Tomuschat, see supra para. 77, ibid, p 471. 212 The same holds in the field of human rights, cf P. H. Imbert, ‘La question des réserves et les conventions en matière de droits de l'homme’ in Actes du cinquième colloque sur la Convention européenne des droits de l'homme (Paris: Pedone, 1982), p 100; W. A. Schabas, supra n 91, p 46. See, however, Art. 9 of the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, 226 UNTS 3; Art. 9(7) of the Convention against Discrimination in Education, 429 UNTS 93; Art. 4 of Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms concerning the abolition of the death penalty, ETS 114; Art. 21 of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, CETS 126; all of which prohibit reservations to their provisions. Reservation clauses contained in human rights treaties may either expressly refer to the provisions of the Vienna Convention on reservations (cf Art. 75 of the Inter-American Convention on Human Rights)—a reference that is implicit in those treaties which do not contain provisions concerning reservations—or include the wording of the Vienna Convention provisions (cf Art. 28(2) of the Convention on the Elimination of All Forms of Discrimination against Women, 1249 UNTS 13; Art. 51(2) of the 1989 Convention on the Rights of the Child, 1577 UNTS 3). 213 It can be maintained that this rule was relinquished when the Council of the League of Nations recognized Switzerland's neutrality. In this sense, see M. Mendelson, supra n 201, pp 140–1. 214 As ‘clear-cut’ as this provision may sound, the prohibition is not totally devoid of ambiguity: the very regrettable Art. 124 of the Rome Statute which allows a State party to ‘declare that, for a period of seven years after the entry into force of this Statute for the State concerned, it does not accept the jurisdiction of the Court’ with respect to the category of war crimes, constitutes an exception to the rule established in Art. 120, since these declarations are in substance proper reservations. See A. Pellet, ‘Entry into Force and Amendment of the Statute’ in A. Cassese, P. Gaeta, and J. R. W. Jones, The Rome Statute of the International Criminal Court: A Commentary (Oxford: Oxford University Press, 2002), vol I, p 157. See also the European Convention on the Service Abroad of Documents Relating to Administrative Matters, ETS 95, Art. 21 of which generally prohibits reservations although some specific provisions allow them. For other examples, see S. Spiliopoulou Åkermark, ‘Reservations Clauses in Treaties Concluded within the Council of Europe’, ICLQ, 1999, vol. 48, pp 479, 493– 4; P. Daillier, M. Forteau, and A. Pellet, Droit international public (Nguyen Quoc Dinh) (Paris: LGDJ, 2009), pp 198–9; P. H. Imbert, supra n 14, pp 165–6; F. Horn, supra n 10, p 113; R. Riquelme Cortado, supra n 97, pp 105–8; W. A. Schabas, supra n 91, p 46. 215 For a very detailed commentary, see A. Fodella, ‘The Declarations of States Parties to the Basel Convention’ in T. Treves (ed.), supra n 171, pp 111–48. Paragraph (2) of Art. 26 authorizes States parties to make ‘declarations or statements, however phrased or named, with a view, inter alia, to the harmonization of its laws and regulations with the provisions of this Convention, provided that such declarations or statements do not purport to exclude or to modify the legal effects of the provisions of the Convention in their application to that State’; the distinction between the reservations of para. (1) and the declarations of para. (2) can be subtle, but it is merely a problem of definition which does not limit in the slightest the prohibition established in para. (1): if a declaration made pursuant to para. (2) turns out to be a reservation, then it is prohibited. The combination of Arts 209 and 310 of the Convention on the Law of the Sea 1982 raises the same problems and calls for the same answers. See eg A. Pellet, ‘Les réserves aux conventions sur le droit de la mer’ in La mer et son droit—Mélanges offerts à Laurent Lucchini et Jean-Pierre Quéneudec (Paris: Pedone, 2003), pp 505–17; see also infra n 239. 216 Example given by P. H. Imbert, supra n 14, pp 166–7. 217 This hypothesis is very similar to the one in which the treaty specifies the provisions that allow reservations—see infra para. 87, and Briggs' remarks supra n 200.

218 In relation to this provision, P. H. Imbert has noted that ‘the influence of the Advisory Opinion [of the ICJ in relation to Reservations to the Genocide Convention adopted two months earlier] is very clear since such a clause is aimed at preserving the provisions that cannot be the subject of reservations’, ibid, p 167 (editor's translation); for a commentary on this provision see A. Pellet in A. Zimmermann, The Refugee Convention: A Commentary (Oxford: Oxford University Press, 2011). See the other examples given, ibid, or infra paras 87–8. 219 This distinction was made by Waldock in his draft of 1962—see supra n 195. 220 For an example, see Art. 78(3) of the International Sugar Agreement of 1977 (‘Any Government entitled to become a Party to this Agreement may, on signature, ratification, acceptance, approval or accession, make reservations which do not affect the economic functioning of this Agreement…’). 221 ‘Whether a reservation is permissible under exceptions (a) or (b) will depend on interpretation of the treaty’, A. Aust, supra n 97, p 110. 222 See infra para. 113. 223 See the examples given supra n 212. 224 See guideline 3.1.1, ILC Report (A/61/10), 1006, pp 333, 340, para. 12 of the commentary. 225 First Report (A/CN.4/101), supra n 46, p 115; see also p 127, para. 95. 226 See supra paras 75–80. 227 See supra n 203. 228 Amendments by the US and Colombia (A/CONF.39/C.1/L.126 and Add.1) and of the Federal Republic of Germany (A/CONF.39/C.1/L.128) aiming at the deletion of para. (b); by the USSR (supra n 188), France (A/CONF.39/C.1/L.169), Sri Lanka (A/CONF.39/C.1/L.139), and Spain (A/CONF.39/C.1/L.147), proposing broad changes to Art. 16 (or Arts 16 and 17) which would also have entailed the elimination of this provision. For the text of these amendments, see Documents of the Conference (A/CONF.39/11/Add.2), supra n 2, pp 133–4, paras 174–7. Also during the discussion of the draft by the ILC, some members had considered that this provision was superfluous, see statements by Yasseen, YILC, 1965, vol. I, 797th meeting, 8 June 1965, p 149, para. 18; Tunkin, ibid, p 150, para. 29. For a more nuanced position, see Tunkin, ibid, p 151, para. 33; or Ruda, ibid, p 154, para. 70. 229 According to the wording used by the representatives of the United States and Poland during the 21st meeting of the Committee of the Whole of the Vienna Conference, 10 April 1968, Summary Records (A/CONF.39/11), 1st session, supra n 2, p 108, para. 8, and p 110, para. 42. See also the statement by the representative of Germany, ibid, p 109, para. 23. 230 Statement by Colombia, ibid, p 113, para. 68. 231 Statement by Sweden, ibid, p 110, para. 29. 232 See Documents of the Conference (A/CONF.39/11/Add.2), supra n 2, pp 136–8, paras 181–8. See the explanations by Waldock, the Conference's expert consultant, Summary Records (A/CONF.39/11), 1st session, ibid, p 2, 24th meeting of the Committee of the Whole, 16 April 1968, p 126, para. 6; and the results of the votes on these amendments, ibid, 25th meeting, 16 April 1968, p 135, paras 23–5. 233 A/CONF.39/C.1/L.136. See Summary Records (A/CONF.39/11), 1st session, ibid, p 2, 70th meeting of the Committee of the Whole, 14 May 1968, p 415, para. 16. Already in 1965, during the discussions on the Drafting Committee's Art. 18(b) at the ILC, Castrén had proposed changing the drafting of the provision in para. 18 and adding the word ‘only’ after the word ‘authorised’, YILC, 1965, vol. I, 797th meeting, 8 June 1965, p 149, para. 14 and 813rd meeting, 29 June 1965, p 264, para. 13. See also a similar proposal made by Yasseen, ibid, 813rd meeting, 29 June 1965, p 264, para. 11. This proposal was not accepted by the Drafting Committee, see ibid, 816th meeting, 2 July 1965, p 283, para. 41. 234 In this sense, see F. Horn, supra n 10, p 114; L. Lijnzaad, supra n 23, p 39; J. M. Ruda, supra n 12, p 181; R. Szafarz, ‘Reservations to Multilateral Treaties’, Polish Yearbook of Int'l L, 1970, vol. 3, pp 293, 299–300. Such limiting formulations are not, however, usual. See eg Art. 17(1) of the 1961 Convention on the Reduction of Statelessness, 989 UNTS 175, and the other examples given by R. Riquelme Cortado, supra n 97, pp 128–9. On the importance of reversing the presumption see also Robinson, YILC, 1995, vol. I, 2402nd meeting, p 158, para. 17. 235 See infra paras 97–8. 236 See guideline 3.1.2 and its commentary, ILC Report (2006), A/61/10, pp 340–50. 237 Ibid, p 350, para. 13 of the commentary. 238 See supra paras 77–82. 239 For its part, Art. 309 of the UN Convention on the Law of the Sea establishes that: ‘No reservations or exceptions may be made to this Convention unless expressly permitted by other articles of this Convention’; on this provision, see A. Pellet, supra n 215, pp 505–11. A treaty may establish the maximum number of reservations admissible or establish which provisions can be the subject of reservations (see eg Art. 25 of the 1967 European Convention on the Adoption of Children, ETS 58). These provisions are similar to those which authorize the parties to accept certain obligations or to make a choice between the provisions of a treaty, neither of which constitute reservation clauses stricto sensu. On this, see guidelines 1.4.6 and 1.4.7 of the ILC and their commentary in ILC Report (2000) (A/55/10), supra n 201, pp 112–16. 240 Supra n 77, p 73. On the distinction between specified and non-specified reservations, see the partly divergent positions of D. Bowett, supra n 138, pp 71–2 and P. H. Imbert, ‘La

question des réserves dans la décision arbitrale du 30 juin 1977 relative à la délimitation du plateau continental entre la République française et le Royaume-Uni de Grande-Bretagne et d'Irlande du Nord’, AFDI, 1978, vol. 24, pp 29, 50–3. For a particularly clear example of a ‘specific reservation’ clause, see Art. 53 of the 1993 Lugano Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment, ETS 150. 241 See the judgment of 20 February 1969, ICJ Reports 1969, pp 3, 38–41, paras 63–9. 242 Supra n 96, pp 43–5, paras. 39–44. See infra para. 99. 243 Judgment of 19 December 1978, ICJ Reports 1978, pp 3, 23, para. 55. 244 See the works quoted supra at nn 118 and 122. See also A. Bonifazi, ‘La disciplina delle riserve alla Convenzione europea dei diritti dell'uomo’ in Les clauses facultatives de la Convention européenne des droits de l'homme (Proceedings of the Round Table, 17 and 18 December 1973, Faculty of Law, University of Bari) (Bari: Levante, 1974), pp 301–19; J. A. Frowein, ‘Reservations to the European Convention on Human Rights’ in Protecting Human Rights: the European Dimension—Studies in Honour of Gerard J. Warda (Köln: C. Heymann Verlag, 1988), pp 193–200; R. Kühner, ‘Vorbehalte und auslegende Erklärungen zur Europäischen Menschenrechtskonvention. Die Problematik des Art. 64 MRK am Beispiel der schweizerischen “auslegenden Erklärung” zu Art. 6 Abs. 3 lit. e MRK’, ZaöRV, 1982, vol. 42, p 58 (summary in English); S. Marcus-Helmons, ‘L'article 64 de la Convention de Rome ou les réserves à la Convention européenne des droits de l'homme’, RDIDC, 1968, vol. 45, p 7; M. J. Morais Pires, As reservas a Convenção europeia dos direitos do homen (Coimbra: Livraria Almedina, 1997); R. Sapienza, ‘Sull'ammissibilità di riserve all'accettazione della competenza della Commissione europea dei diritti dell'uomo’, RDI, 1987, vol. 70, p 641; W. A. Schabas, ‘Article 64’ in E. Decaux, P. H. Imbert, and L. Pettiti (eds), La Convention européenne des droits de l'homme: commentaire article par article (Paris: Economica, 1995), pp 923–42. 245 Paragraph 86. For other examples, see A. Aust supra n 97, pp 109–10; S. Spiliopoulou Åkermark, supra n 214, pp 495–6; W. W. Bishop Jr, supra n 23, pp 323–4; P. Daillier, M. Forteau, and A. Pellet, supra n 214, p 181. See also the table of conventions of the Council of Europe that contain clauses resembling each of the two first categories of permissive reservation clauses, mentioned supra para. 86, in R. Riquelme Cortado, supra n 97, p 125 and the other examples of partial authorizations given by this author at pp 126–9. 246 See supra n 185. 247 ECtHR, judgment of 29 April 1988, Belilos, supra n 121, para. 55. 248 Report of the Commission, 5 May 1982, Temeltasch, supra n 117, para. 90. 249 P. H. Imbert, supra n 14, p 186. See also R. Riquelme Cortado, supra n 97, p 122. 250 On this notion, see guideline 1.1.1 of the ILC Guidelines on reservations to treaties and its commentary, in ILC Report (1999) (A/54/10), supra n 5, pp 93–5. 251 For another even clearer example, see Art. 18.1 of the 1983 European Convention on the Compensation of victims of violent crimes, ETS 116, pursuant to which ‘Any State may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, declare that it avails itself of one or more reservations’. 252 Something that they often expressly establish. See eg Art. VII of the 1952 Convention on the Political Rights of Women, 193 UNTS 135, and the comments on this respect by R. Riquelme Cortado, supra n 97, p 121. On this matter, see the commentary on Art. 20, paras. 85, 92. 253 It cannot be reasonably maintained that para. (b) could include ‘implicitly authorised’ reservations—if only because all those reservations that are not prohibited are, a contratio, authorized, subject to the provisions of para. (c). Thus, the expression ‘specific reservation’ in para. (b) of Art. 19 appears to be synonymous with ‘reservation expressly authorised by a treaty’, which appears in Art. 20(1). See infra the commentary on this provision, at paras 87 ff. 254 See infra para 99. See the questions posed by S. Spiliopoulou Åkermark, supra n 214, pp 496–7; or R. Riquelme Cortado, supra n 97, p 124. 255 See eg the wording used by Brierly to introduce paras 1, 2, and 4 of draft Art. 10: ‘Unless the contrary is indicated in a treaty…’, which he proposed be adopted. See A/CN.4/23, YILC, 1959, vol. II and the commentary on this provision, ibid, p 238, para. 88, and pp 239–40, para. 90. 256 See Lauterpacht, First Report, A/CN.4/63, YILC, 1953, vol. II, p 136, para. 4, and Second Report, A/CN.4/87, YILC, 1954, vol. II, p 131, para. 1; Waldock, First Report, A/CN.4/144, supra n 47, p 60, Art.17(1)(a)(i), and p 65, para. 9, see also the explanations given during the debates of the Commission, YILC,1962, vol. I, 653rd meeting, 29 May 1962, p 159, para. 57; and the text adopted by the Commission, YILC, 1962, vol. II, pp 175–6, Art. 18(1)(a) and its commentary at pp 179–80, para. 10 and p 180, para. 15; Waldock, Fourth Report, A/CN.4/177, supra n 60, p 50, Art. 18(2)(a), and the text adopted by the Commission in 1965, YILC, 1965, vol. II, Art. 18(a) and its commentary, YILC, 1966, vol. II, p 207, Art. 16(a) at para. 17. Paragraph (b) of draft Art. 16 did not raise any problems during the Vienna Conference; only the amendments presented by Ceylon, A/CONF.39/C.1/L.147, Documents of the Conference (A/CONF.39/11/Add.2), supra n 2, p 133, subsequently withdrawn (see Summary Records (A/CONF.39/11), 1st session, supra n 2, 24th meeting of the Committee of the Whole, 16 April 1968, p 130, para. 51) and the USSR, which completely redrafted draft Arts 16 and 17, would have entailed the elimination of this paragraph (A/CONF.39/C.1/L.115, supra n 80). According to the representative of the USSR, para. (b) ‘seemed to be unnecessary, since cases where reservations were prohibited by the treaty were extremely rare. Moreover, retention of the sub-paragraph would have the effect of laying down a rule which formed an exception, thus restricting the power of States to make reservations’, see Summary Records, (A/CONF.39/11),

1st session, supra n 2, 21st meeting of the Committee of the Whole, 10 April 1968, p 107, para. 5. This amendment was rejected by the Committee of the Whole 70 votes to 10, with 3 abstentions, ibid, 25th meeting, 16 April 1968, p 135, para. 23. 257 See supra paras 34 and 72. 258 Report of the ILC on the work of its 14th session, YILC, 1962, vol. II, pp 178–9, commentary on draft Arts 18–20 (para. 10). Paragraphs (a) and (b) of Art. 19 ‘are little more than an acknowledgment that the parties are free to make provision in their treaty whether or to what extent to allow reservations to its terms’, D. W. Greig, supra n 189, p 51. 259 Cf the arbitral award of 30 June 1977 in the Anglo-French Continental Shelf case, supra n 96, p 43, para. 39: ‘Under Article 12 [of the Geneva Convention on the Continental Shelf, supra para. 87], in short, the United Kingdom bound itself not to contest the right of the French Republic to be a party to the Convention on the basis of reservations the making of which is authorised by that Article’—but this does not solve the preliminary question of whether the reservations formulated by France were valid, see supra para. 87. 260 To the point that it has been maintained that ‘there is clearly no need for an additional rule in the Vienna Convention’, L. Lijnzaad, supra n 23, p 39. 261 See supra n 203. 262 See D. W. Greig, supra n 114, pp 52–3; A. Fodella, supra n 215, p 140. See also C. Tomuschat, who considers that the travaux préparatoires show that the ILC considered that it was impossible to accept a reservation excluded by paras (a) and (b), supra n 22, p 477. 263 For a critical analysis of this pseudo-evidence, see D. W. Greig, supra n 114 pp 52–3, 154. 264 In this sense, A. Aust, supra n 97, p 118 or D. W. Bowett, who considers that this conclusion is applicable a fortiori to the case envisaged in para. (c), supra n 138, p 83. 265 See infra paras 174–90. 266 See eg D. W. Bowett, supra n 138, p 84. For a more nuanced analysis, see D. W. Greig, supra n 114, pp 56–7. 267 D. W. Bowett, ibid; G. Gaja, supra n 139, p 314. See also C. Tomuschat, supra n 22, p 467; see the references to the debates of the ILC, ibid, fn 12. But these debates are much less conclusive than this author would have. 268 See infra para. 176. 269 P. Reuter, supra n 5, p 73, para. 130. The eminent author applies this expression to the system applied by the ICJ in its 1951 Advisory Opinion on Reservations to the Genocide Convention, supra paras 7–9; the criticism is without doubt excessive, see infra paras 114–16; it is clearly applicable, however, to the pan-American system. 270 See supra para. 7. 271 See supra paras 2–4. 272 These hypotheses do not constitute cases of implicit prohibitions to the formulation of reservations; but they reintroduce, for specific treaties, the unanimity system. 273 In its observations on the draft adopted in first reading by the ILC, Canada had suggested extending ‘the criterion of “compatibility with the object and purpose” equally to reservations made pursuant to express treaty provisions in order not to have different criteria for cases where the treaty is silent on the making of reservations and cases where it permits them’, see Waldock, Fourth Report, A/CN.4/177, supra n 60, p 46. This proposal (not a very clear one) was not retained by the Commission. See in the same sense the proposal made by Briggs (clearer than the Canadian one), in YILC, 1962, vol. I, 663rd meeting, 18 June 1962, p 222, paras 13–14, and YILC, 1965, vol. I, 813rd meeting, 29 June 1965, p 264, para. 10; contra: Ago, ibid, p 264, para. 16. 274 Paragraph 85. 275 In this sense, see Rosenne, YILC, 1965, vol. I, 797th meeting, 8 June 1965, pp 148–9, para. 10. 276 YILC, 1966, vol. II, p 180. 277 Poland, nevertheless, had not proposed any amendments to para. (c) in order to adapt this paragraph to the consequences of the modifications to para. (b) that it had succeeded to have the Conference adopt. Instead, an amendment from Vietnam, aiming at deletion of the phrase ‘in cases where the treaty contains no provisions regarding reservations’ (A/CONF.39/C.1/L.125, Documents of the Conference (A/CONF.39/11/Add.2), supra n 2, p 134, para. 177), was rejected by the Committee of the Whole, ibid, p 136, para. 181. 278 Curiously, the reason given by the President of the Drafting Committee does not link this modification of para. (c) to those made to para. (b): Yasseen was content to indicate that ‘[s]ome members of the Committee had considered that a treaty might conceivably contain a provision on reservation which did not fall into any of the categories contemplated in paragraphs (a) and (b)’, see Summary Records (A/CONF.39/11), 1st session, supra n 2, 70th meeting of the Committee of the Whole, 14 May 1968, p 415, para. 17. Briggs had already made a remark going in the same direction during the debates of the ILC in 1965, YILC, 1965, vol. I, 796th meeting, 4 June 1965, p 146, para. 37. 279 In his Fourth Report (A/CN.4/177), Waldock admitted that ‘A conceivable exception [to the principle of validity of reservations authorized by the treaty] might be where a treaty expressly forbids certain specified reservations and thereby impliedly permits others; for it might not be unreasonable to regard compatibility with the object and purpose as still an implied limitation on the making of other reservations’; he had excluded this possibility not on

the basis of it being wrong, but because ‘this may, perhaps, go too far in refining the rules regarding the intentions of the parties, and there is something to be said for keeping the rules in article 18 as simple as possible’, supra n 60, p 50, para. 4. 280 ILC Report (2006), A/61/10, pp 350–4. 281 See guideline 3.1.4, ibid, pp 354–6. 282 Cf Art. 20(1). 283 See guideline 3.1.4, supra n 281, pp 354–6. See also supra para. 87. 284 See supra para. 87. 285 Supra n 96, p 43, para. 39. 286 D. Bowett, supra n 138, p 72. In this sense J. M. Ruda, supra n 12, p 182; G. Teboul, supra n 91, pp 691–2. Contra P. H. Imbert, supra n 240, pp 50–3; this opinion, although strongly argued, does not take sufficiently into account the consequences of the amendment of para. (c) during the Vienna Conference (see supra para. 98). 287 C. Tomuschat gives a pertinent example: If, for example, a convention on the protection of human rights prohibits in a ‘colonial clause’ the exception of dependent territories from the territorial scope of the treaty, it would be absurd to suppose that consequently reservations of any kind, including those relating to the most elementary guarantees of individual freedom, are authorised, even if by these restrictions the treaty would be deprived of its very substance. (supra n 22, p 474) 288 See supra paras 7–9. 289 ICJ Reports 1951, p 24. On this difference, see M. Coccia, supra n 12, p 9; L. Lijnzaad, supra n 23, p 40; M. Rama-Montaldo, ‘Human Rights Conventions and Reservations to Treaties’ in Héctor Gros Espiell Amicorum Liber: persona humana y derecho internacional (Brussels: Bruylant, 1997), vol. II, pp 1265–6; I. Sinclair, supra n 77, p 61. 290 See the commentary on Art. 20, paras 72 ff. 291 See the numerous arguments given in support of this by R. Riquelme Cortado, supra n 97, pp 138–43, and supra paras 55–62. 292 I. Buffard and K. Zemanek, ‘The “Object and Purpose” of a Treaty: An Enigma?’, ARIEL, 1998, vol. 3, p 342. The uncertainties linked to this criterion have been unanimously noted (and criticized with more or less strength) by doctrine: see eg A. Aust, supra n 97, p 111; G. G. Fitzmaurice, supra n 11, p 12; M. Rama-Montaldo, supra n 289, p 1265; C. Rousseau, Droit international public (Paris: Sirey, 1970), vol. I, p 126; G. Teboul, supra n 91, pp 695–6; A. Pellet, Preliminary Report (A/CN.4/470), p 143, para. 109. 293 According to J. K. Koh, ‘[t]he International Court thereby introduced purposive words into the vocabulary of reservations which had previously been dominated by the term “consent”’, supra n 18, p 85. 294 L. Lijnzaad, supra n 23, pp 82–3. 295 ICJ Reports 1951, p 44. 296 A/1858 in YILC, 1951, vol. II, p 128, para. 24. 297 YILC, 1962, vol. II, p 65, para. 10; in the same sense, see the oral statement by Waldock, YILC, 1962, vol. I, 651st meeting, 25 May 1962, p 139, paras 4–6; during the debates, the Special Rapporteur did not hesitate to qualify the principle of compatibility as the ‘test’, see ibid, p 145, para. 85—this paragraph also shows that, according to Waldock, from the beginning this test was the decisive one in the formulation of reservations (as opposed to those objections maintaining that the only applicable principle was the consensual principle). The wording finally adopted for draft Art. 17(2)(a), proposed by the Special Rapporteur, reflected this uncertain position: ‘a state shall have regard to the compatibility of the reservation with the object and purpose of the treaty’ (Ago, YILC, 1962, vol. I, 651st meeting, p 169, para. 58). This principle was generally agreed during the debates of the Commission in 1962; see, notably, Briggs, YILC, 1962, vol. I, 651st meeting, 15 May 1962, p 140, para. 23; Lachs, ibid, p 142, para. 54; Rosenne, ibid, pp 144–5, para. 79—who does not hesitate to speak of a ‘test’, see also ibid, p 145, para. 82, and ibid, 653rd meeting, 29 May 1962, p 156, para. 27; Castrén, YILC, 1962, vol. I, 652nd meeting, p 148, para. 25. It was also agreed during the debates in 1965, see Yasseen, YILC, 1965, vol. I, 797th meeting, 8 June 1965, p 149, para. 20; Tunkin, ibid, p 150, para. 25. See however the objections by de Luna, YILC, 1962, vol. I, 652nd meeting, 28 May 1962, p 148, para. 18 and ibid, 653rd meeting, 29 May 1962, p 160, para. 67; Gros, ibid, 652nd meeting, 28 May 1962, p 150, paras 47–51; Ago, ibid, 653rd meeting, 29 May 1962, pp 148–9, para. 34; or during the debates in 1965, see the objections by Ruda, YILC, 1965, vol. I, 796th meeting, 4 June 1965, p 147, para. 55, ibid, 797th meeting, 8 June 1965, p 154, para. 69; Ago, ibid, 798th meeting, 9 June 1965, p 161, para. 71. Only at the end, Tsuruoka, the Japanese member of the Commission, opposed para. (c), and for this reason he abstained from voting on draft Art. 18, adopted with ibid 16 votes to 0, with 1 abstention on 2 July 1965, ibid, 816th meeting, p 283, paras 41–2. 298 See I. Buffard and K. Zemanek, supra n 292, pp 320–1. 299 See Art. 31(1) of the Convention. 300 See I. Buffard and K. Zemanek, supra n 292, pp 320–1. 301 C. Redgwell, ‘The Law of Reservations in Respect of Multilateral Conventions’ in J. P. Gardner (ed.), supra n 116, p 7. 302 See supra paras 66–71 of the commentary on Art. 20.

303 Which became Art. 20 of the Convention. 304 YILC, 1966, vol. II, p 207, para. 17. The commentary on the corresponding provision adopted in 1962, Art. 18(1)(d), does not add anything more. See YILC, 1962, vol. II, p 180. para. 15. 305 See supra n 296. 306 It is significant that none of the proposed amendments to the ILC's draft Art. 16— including the most radical ones (see supra n 255)—did not call the principle into question. At most, the amendments of Spain, the United States, and Colombia proposed to add the notion of ‘character’ of the treaty, or to substitute this notion for that of the ‘object’. 307 Cf Arts 18, 20(2), 31(1), 33(4), 41(1)(b)(ii), 58(1)(b)(ii), and 60(3)(b). One could compare to these the provisions concerning the ‘bases’ or those concerning the ‘essential conditions of the consent to be bound’, cf P. Reuter, ‘Solidarité et divisibilité des engagements conventionnels’ in Y. Dinstein and M. Tabory (eds), International Law at a Time of Perplexity— Essays in Honour of Shabtai Rosenne (Dordrecht: Martinus Nijhoff, 1999), p 627, also reproduced in P. Reuter, Le développement de l'ordre juridique international—Écrits de droit international (Paris: Economica, 1999), p 366. 308 As I. Buffard and K. Zemanek have remarked (supra n 292, p 322), the commentaries on the 1966 ILC draft Articles are almost completely silent on this question. 309 More specifically, to the (current) Arts 18 and 31. 310 Fourth Report (A/CN.4/177), supra n 60, p 51, para. 6. 311 See, again, I. Buffart and K. Zemanek, supra n 292, pp 312–19. From then on, it appears the Court's terminology on this matter has been fixed. Cf the judgments in Border and Transborder Armed Actions (Nicaragua v Honduras), Jurisdiction and Admissibility, 20 December 1988, ICJ Reports 1988, pp 69, 89, para. 46; Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v Norway), Judgment, 14 June 1993, ICJ Reports 1993, pp 38, 49–51, paras 25–7; Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, 3 February 1994, ICJ Reports 1994, pp 6, 25–6, para. 52; Oil Platforms (Islamic Republic of Iran v United States of America), Preliminary Objection, 12 December 1996, ICJ Reports 1996, pp 803, 813, para. 27; Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, 25 September 1997, ICJ Reports 1997, pp 7, 64, para. 104, p 67, para. 110; Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria), Preliminary Objections, 11 June 1998, ICJ Reports 1998, pp 275, 318, para. 98; Kasikili/Sedudu Island (Botswana/Namibia), Judgment, 13 December 1999, ICJ Reports 1999, pp 1045, 1072–3, para. 43; LaGrand (Germany v United States of America), Judgment, 27 June 2001, ICJ Reports 2001, pp 466, 502–3, para. 102; Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment, 17 December 2002, ICJ Reports 2002, pp 625, 652, para. 51; Avena and Other Mexican Nationals (Mexico v United States of America), Judgment, 31 March 2004, ICJ Reports 2004, pp 12, 48, para. 85; Legality of Use of Force (Serbia and Montenegro v Belgium), Preliminary Objections, 15 December 2004, ICJ Reports 2004, pp 279, 319, para. 102; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, ICJ Reports 2004, pp 136, 179, para. 109. 312 See eg Jurisdiction of the European Commission of the Danube, PCIJ, Advisory Opinion, 8 December 1927, Series B, no. 14, p 64: ‘It is obvious that the object of the Treaty of Paris [of 1856]…has been to assure freedom of navigation’. See also, International Status of South West Africa, ICJ, Advisory Opinion, 11 July 1950, ICJ Reports 1950, p 139, and the judgments cited supra in Jan Mayen, 14 June 1993, ICJ Reports 1993, p 50, para. 27; Gabčíkovo-Nagymaros Project, Judgment, 27 September 1997, ICJ Reports 1997, p 67, para. 110; Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea intervening), Judgment, 11 June 1998, ICJ Reports 1998, p 318, para. 98; LaGrand, Judgment, 27 June 2001, ICJ Reports 2001, p 502, para. 102; Legality of the Use of Force (Serbia and Montenegro v Belgium), Preliminary Objections, Judgment, 15 December 2004, ICJ Reports 2004, p 319, para. 102; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Merits, Judgment, 26 February 2007, para. 198. 313 Cf ICJ judgment in Certain Norwegian Loans (France v Norway), Judgment, 6 July 1957, ICJ Reports 1957, pp 9, 24; but see the judgments in Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America), Judgment, 27 June 1986, ICJ Reports 1986, pp 14, 137, para. 273; Oil Platforms (Islamic Republic of Iran v United States of America), Preliminary Objection, Judgment, 12 December 1996, ICJ Reports 1996, p 814, para. 28. 314 Cf Greco-Bulgarian Communities, PCIJ, Advisory Opinion, 31 July 1930, Series B, no. 17, p 19; Rights of Nationals of the United States of America in Morocco (France v United States of America), Judgment, 27 August 1952, ICJ Reports 1952, p 196; Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America), Judgment, 27 June 1986, ICJ Reports 1986, p 138, para. 275; Territorial Dispute (Libyan Arab Jamahiriya/Chad ), Judgment, 3 February 1994, ICJ Reports 1994, pp 25–6, para. 52; Pulau Ligitan and Pulau Sipadan, supra n 311, ICJ Reports 2002, p 652, para. 51. See also the Dissenting Opinion of Judge Anzilotti to the PCIJ Advisory Opinion on Interpretation of the Convention of 1919 concerning Employment of Women during the Night, 15 November 1932, Series A/B, no. 50, p 384. 315 Oil Platforms, supra n 313, ICJ Reports 1996, p 814, para. 28. 316 Kasikili/Sedudu Island, supra n 311, ICJ Reports 1999, pp 1072–3, para. 43. 317 Often as confirmation of the interpretation based on the text itself; cf Libya/Chad, supra n 314, ICJ Reports 1994, pp 27–8, paras 55–6; Kasikili/Sedudu Island, supra n. 311, ICJ

Reports 1999, p 1074, para. 46; Palestinian Wall Advisory Opinion, supra n 311, ICJ Reports 2004, p 179, para. 109. See also the Dissenting Opinion of JudgeAnzilotti on the PCIJ, Advisory Opinion, Interpretation of the Convention of 1919 concerning Employment of Women during the Night, 15 November 1932, Series A/B, no. 50, pp 388–9. In its Advisory Opinion on Reservations to the Genocide Convention, the ICJ gave some weight to the ‘origin’ of the Convention, supra n 6, ICJ Reports 1951, p 23. 318 Cf Competence of the ILO to Regulate Incidentally the Personal Work of the Employer, PCIJ, Advisory Opinion, 23 July 1926, Series B, no. 13, p 18; Greco-Bulgarian Communities, supra n 314, p 20; Oil Platforms, supra n. 313, ICJ Reports 1996, p 813, para. 27; Pulau Ligitan and Pulau Sipadan, supra n 311, ICJ Reports 2002, p 652, para. 51; Bosnian Genocide, para. 198. 319 ‘One could just as well believe that it was simply by intuition’, I. Buffard and K. Zemanek, supra n 292, p 319. 320 YILC, 1964, 726th meeting, 19 May 1964, vol. I, p 26, para. 77. The same author, however, expressed elsewhere a certain scepticism in relation to the usefulness of the distinction, see supra n 307, p 628—or in Le développement de l'ordre juridique international, supra, p 367. 321 See I. Buffard and K. Zemanek, supra n 292, pp 325–7. 322 Ibid, pp 322–5, 327–8. 323 ‘[D]oes not allow to solve the question’ (editor's translation), G. Teboul, supra n 91, p 696. 324 See eg J. P. Jacqué, Éléments pour une théorie de l'acte juridique en droit international public (Paris: LGDJ, 1972), p 142: ‘L'objet d'un acte réside dans les droits et obligations auxquels il donne naissance’ (‘The object of an act is found in the rights and obligations to which it gives rise’ (editor's translation)). 325 Ibid. 326 G. Fitzmaurice, ‘The Law and Procedure of the International Court of Justice: Treaty Interpretation and other Treaty Points’, BYIL, 1957, vol. 33, pp 203, 208. See also G. Teboul, supra n 91, p 697; W. A. Schabas, ‘Reservations to the Convention on the Rights of the Child’, Human Rights Quarterly, 1996, vol. 18, pp 472, 479. 327 I. Buffard and K. Zemanek, supra n 292, p 333. 328 Even though it reverses the priorities established in Art. 31 of the Vienna Convention, pursuant to which the ‘terms of the treaty’ are the point of departure of the interpretation. See the Advisory Opinion by the Inter-American Court in Restrictions to the Death Penalty, supra n 125, para. 50. 329 The five treaties are: the UN Charter, 1 UNTS 16; the Vienna Convention on Diplomatic Relations, 500 UNTS 95; the Vienna Convention on the Law of Treaties, 1155 UNTS 331; the General Conventions on Human Rights and the Convention on the Elimination of All Forms of Racial Discrimination agains Women, 1249 UNTS 13; and the other human rights conventions concerning specific rights. The proposed method is not conclusive; but on this last hypothesis, see I. Buffard and K. Zemanek, supra n 292, pp 334–42. 330 See supra para. 102. 331 For criticism of this extreme position, see W. A. Schabas, supra n 326, pp 476–7; ‘Invalid Reservations to the International Covenant on Civil and Political Rights: Is the United States Still a Party?’, Brooklyn J of Int'l L, 1995–96, vol. 21, pp 277, 291–3. On the position of the Human Rights Committee, see infra para. 123. 332 See supra para. 110. Once could add the question whether a series of limited reservations, which are admissible when taken individually, can, when taken cumulatively, be incompatible with the object and purpose of the treaty. See B. Clark, supra n 99, p 314; R. J. Cook, ‘Reservations to the Convention on the Elimination of All Forms of Discrimination Against Women’, VaJIL, 1989–90, vol. 30, pp 643, 706–7. 333 See, the Advisory Opinion of the Inter-American Court in Reservations to the Death Penalty, supra n 125, para. 63; see also L. Sucharipa-Behrman, supra n 134, p 76. Although clearly showing its awareness that the rules concerning the interpretation of treaties were not purely and simply transposable to the unilateral declarations formulated by parties to a treaty (reservations and interpretative declarations), the ILC admitted that these rules constituted useful guidelines in this respect. Cf guideline 1.3.1 (Method of implementation of the distinction between reservations and interpretative declarations) and its commentary, YILC, 1999, vol. II, Part Two, pp 107–9. This is a fortiori the case when the compatibility of a reservation with the object and purpose of the treaty itself is in question. 334 YILC, 1962, 651st meeting, 25 May 1962, p 141, para. 35. 335 The question is to examine whether the reservation is compatible with the ‘general tenor’ of the treaty, Bartoš, ibid, p 142, para. 40. 336 But not to those that ‘relate to detail’ only, Paredes, ibid, p 146, para. 90. 337 See the judgment by the European Court of Human Rights in Loizidou, supra n 125, para. 75: the acceptance of different regimes for the implementation of the European Convention on Human Rights ‘diminish the effectiveness of the Convention as a constitutional instrument of European public order (ordre public)’. 338 Reservations to the Genocide Convention, supra n 6, ICJ Reports 1951, p 21: ‘none of the contracting parties is entitled to frustrate or impair, by means of unilateral decisions or particular agreements, the purpose and raison d’être of the convention'.

339 Statement by the representative of France before the Third Committee of the General Assembly, 11th session, 703rd meeting, 6 December 1956, reproduced in A.-C. Kiss, Répertoire de la pratique française en matière de droit international public (Paris: CNRS, 1962), vol. I, p 277, fn 552. 340 L. Lijnzaad, supra n 23, p 83; L. Sucharipa-Behrmann, supra n 134, p 76. 341 On this term, see the commentary on guideline 3.1.5, ILC Report (2007), A/62/10, 77, para. 14(ii) of the commentary. 342 Ibid, pp 66–77. 343 In its 2007 judgment, the Court considered that ‘the object and purpose of the Convention as a whole is to prevent the intentional destruction of groups’ (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Merits, Judgment, 26 February 2007, para. 198). The question has special relevance in relation to the scope of the not very glorious ‘colonial clause’, included in Art. 12 of the Convention and contested, not without reason, by the States of the Soviet bloc, which had made reservations to this provision. See MTDSG, supra n 130, vol. I, ch. IV.1: here, it is the validity of this semi-clause which is in question; but this poses the further question of the validity of the objections to this reservation. 344 See MTDSG, supra n 130, vol. I, ch. VI.19. In the same sense, see the objections by Belgium, Denmark, Spain, Greece, Ireland, Italy, the Netherlands, Portugal, Sweden, and the United Kingdom, and the less explicitly motivated objections by Austria and France, ibid, pp 587–9. See, also, the objection by Norway, or those—less explicit—by Germany and Sweden in relation to the Tunisian declaration concerning the application of the Convention on the Reduction of Statelessness of 1961, 989 UNTS 175, ibid, ch. V.4, pp 500–1. For another meaningful example, see the declaration by Pakistan in relation to the 1997 International Convention for the Suppression of Terrorist Bombings, 2149 UNTS 256, excluding the application of the Convention to ‘struggles, including armed struggle, for the realization of right of self-determination launched against any alien or foreign occupation or domination’, ibid, vol. III, ch. XVIII.9, pp 159–60; a number of States considered that this ‘declaration’ was contrary to the object and purpose of the Convention, namely ‘the suppression of terrorist bombings, irrespective of where they take place and of who carries them out’, see the objections by Germany, Australia, Austria, Canada, Denmark, Finland, France, Spain, United States, India, Italy, Japan (very specifically motivated), Norway, New Zealand, the Netherlands, United Kingdom, and Sweden, ibid, pp 162–70. Similarly, Finland justified its objection to the reservation made by Yemen to Art. 5 of the 1966 Convention on the Elimination of All Forms of Racial Discrimination, 660 UNTS 195, because ‘provisions prohibiting racial discrimination in the granting of such fundamental political rights and civil liberties as the right to participate in public life, to marry and choose a spouse, to inherit and to enjoy freedom of thought, conscience and religion are central in a convention against racial discrimination’, ibid, vol. I, ch. IV.2, p 167. 345 Moreover, this explains the suspicion of the Vienna Convention in relation to reservations to the constitutive instruments of international organizations. Thus, in ratifying the 1984 Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 UNTS 85, the German Democratic Republic declared that it would contribute to the expenses linked to the functioning of the Committee against Torture only insofar as the Committee's activities fell within competence of the Committee as recognized by the German Democratic Republic, see MTDSG, supra n 130, vol. I, ch. IV.9, fn 3. See also R. W. Edwards Jr, supra n 150, pp 391–3, 400. This ‘declaration’ (in fact, a reservation) gave rise to objections on the part of Luxembourg, which rightly argued that it would ‘inhibit activities of the Committee in a manner incompatible with the purpose and the goal of the Convention’, ibid, p 375. Cf equally Art. 20(3); see infra the commentary on this provision, at paras 106–15. 346 See guideline 3.1.7 and its commentary (ILC Report (2007), A/62/10, pp 77–82). 347 Ibid, p 77, para. 1 of the commentary. 348 A/CN.4/558/Add.1. 349 See guidelines 3.1.7 (Vague or general reservations), 3.1.8 (Reservations to a provision reflecting a customary norm), 3.1.9 (Reservations contrary to a rule of jus cogens), 3.1.10 (Reservations to provisions relating to non-derogable rights), 3.1.11 (Reservations relating to internal law), 3.1.12 (Reservations to general human rights treaties), and 3.1.13 (Reservations to treaty provisions concerning dispute settlement or the monitoring of the implementation of the treaty) and their commentary, ILC Report (2007), A/62/10, pp 82–121. 350 A/CN.4/101, supra n 46, p 127, para. 96; this was the object of draft Art. 37(4), proposed by the Special Rapporteur. 351 Legality of Use of Force (Yugoslavia v Spain), p 772, paras 29–33, (Yugoslavia v United States of America) pp 923–4, paras 21–5. 352 See MTDSG, supra n 130, ch. IV.1; in particular, see the very clear objections of Brazil, China (Taiwan), Mexico, and the Netherlands. 353 Armed activities on the territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v Rwanda), Jurisdiction and Admissibility, Judgment, 3 February 2006, ICJ Reports 2006, pp 6, 32, para. 67. See also the Court's Order of 10 July 2002, ICJ Reports 2002, pp 219, 246, para. 72. 354 See in this sense R. Riquelme Cortado, supra n 97, pp 192–202. Objections to reservations on dispute-settlement clauses are rare. Apart from the objections made to reservations to Art. IX of the Genocide Convention, see the objections formulated by several States to reservations concerning Art. 66 of the Vienna Convention on the Law of Treaties,

especially the objections by Germany, Canada, Egypt, the United States (which specified that the reservation made by Syria was ‘incompatible with the object and purpose of the Convention and undermines the principle of impartial settlement of disputes concerning the invalidity, termination, and suspension of the operation of treaties, which was the subject of extensive negotiation at the Vienna Conference’, MTDSG, supra n 130, ch. XXIII.1; see also infra para. 145), Japan, New Zealand, the Netherlands (ibid, p 530), and Sweden (same position as the United Kingdom, ibid, pp 533–4). 355 Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v Rwanda), Jurisdiction and Admissibility, Judgment, 3 February 2006, Joint Separate Opinion by Judges Higgins, Kooijmans, Elaraby, Owada, and Simma, ICJ Reports 2006, pp 65, 70, para. 21. 356 Tenth Report, A/CN.4/558/Add.1, para. 99. In para. 14 of their Opinion, the authors expressly cross-referred to the Second and Tenth Reports by the Special Rapporteur, ICJ Reports 2006, p 68, para. 14. 357 ILC Report (2007), A/62/10, pp 117–21. 358 General Comment No. 24, supra n 126, para. 11; see also F. Hampson, Working paper, supra n 102, para. 55. 359 General Comment No. 24, supra n 126, para. 13. In the following paragraph, the Committee considered that ‘reservations relating to the required procedures under the first Optional Protocol would not be compatible with its object and purpose’. 360 See supra n 130. As a justification of its reservation, Trinidad and Tobago had maintained that it accepted the principle that States cannot use the Optional Protocol as a vehicle to enter reservations to the International Covenant on Civil and Political Rights itself; the Government of Trinidad and Tobago stresses that its reservation to the Optional Protocol in no way detracts from its obligations and engagements under the Covenant (MTDSG, supra n 130, ch. IV.5). Before Trinidad and Tobago had denounced the Optional Protocol, its reservation had summoned objections from seven States. 361 Loizidou, supra n 125, para. 77. 362 Ibid, paras 70–89; see esp. para. 79. See also the decision of the Grand Chamber of the European Court of Human Rights of 4 July 2001 concerning the admissibility of Application no. 48787/99 in the case of Ilie Ilaşcu and others v Moldova and the Russian Federation. 363 General Comment No. 24, supra n 126, para. 7. Cf F. Hampson, Working paper, supra n 102, para. 50. 364 See eg the reservation formulated by Malta to Art. 13 of the ICCPR (on the conditions of expulsion of aliens) which did not raise any objections, MTDSG, supra n 130, ch. IV.4. 365 Paragraphs 8–10 of General Comment No. 24, supra n 126; these criteria concern, in addition to the compatibility of the reservation with the object and purpose of the treaty, the customary, peremptory, or non-derogable character of the norm concerned. See infra paras 136–40. 366 See, however, infra n 370. 367 Articles 20 and 21; see MTDSG, supra n 130, ch.IV.11. 368 W. A. Schabas, supra n 326, p 480. 369 See guideline 3.1.12 (ILC Report (2007), A/62/10, p 113) and in particular paras 5–8 of the commentary, ibid, pp 115–16. 370 In the Concluding Observations to the first report of the United States, dated 6 April 1995, the Committee noted that it regretted: the extent of the State party's reservations, declarations and understandings to the Covenant. It believes that, taken together, they intended to ensure that the United States has accepted only what is already the law of the United States. The Committee is also particularly concerned at reservations to article 6, paragraph 5, and article 7 of the Covenant, which it believes to be incompatible with the object and purpose of the Covenant' (Concluding Observations of the Human Rights Committee: United States, 10/03/1995, CCPR/C/79/Add.50, para. 279) See the analysis by W. A. Schabas, supra n 331, pp 277–328; J. McBride, ‘Reservations and the Capacity of States to Implement Human Rights Treaties’ in J. P. Gardner (ed), supra n 116, p 172. 371 See the objections by Spain, France, Norway, Ireland, Luxembourg, and Sweden, MTDSG, supra n 130, ch. XXVII.4. See also the objections by Finland to the reservations by Indonesia, Malaysia, Qatar, Singapore, and Oman to the 1989 Convention on the Rights of the Child, 1577 UNTS 3, MTDSG, supra n 130, ch. IV.11. See also eg the objections by Denmark, Finland, Greece, Ireland, Mexico, Norway, and Sweden to the second reservation by the United States to the Genocide Convention, MTDSG, supra n 130, ch. IV.1. For the text of the US second reservation, see infra para. 131. 372 Expressly invoked, eg, by Estonia and the Netherlands in support of their objections to the US reservation mentioned supra, MTDSG, supra n 130, ch. IV.1. 373 Cf W. A. Schabas, supra n 326, pp 479–80 and supra n 91, p 59. 374 The reserving State may indicate the time it requires to adapt its internal law to the international treaty, cf the reservation made by Estonia to the application of Art. 6 of the European Convention on Human Rights, and a similar reservation made by Finland to Art. 5(3) of the same Convention, both of which were limited for a year, available at:

http://conventions.coe.int/. It may also occur that the reserving State indicates its intention to adapt its internal law to the international treaty, without specifying a time frame, cf the reservations made by Cyprus and Malawi upon accession to the 1979 Convention on the Elimination of All Forms of Discrimination against Women, 1249 UNTS 13, which they effectively carried out, see MTDSG, supra n 130, ch. IV.8. See also the declaration by Indonesia made upon accession to the 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, 1673 UNTS 57, MTDSG, supra n 130, ch. XXVII.3. It is equally frequent for States to renounce reservations formulated without a specific duration after having modified the national laws that had been the cause of the reservation, cf the withdrawal of multiple reservations to the Convention on the Elimination of All Forms of Discrimination against Women by France, Ireland, and the United Kingdom, MTDSG, supra n 130, ch. IV.8. See also the successive partial withdrawals (1996, 1998, 1999, 2001) by Finland of its reservation to Art. 6(1) of the European Convention on Human Rights (http://conventions.coe.int/). Such practices are praiseworthy and must surely be encouraged, cf guideline 2.5 of the ILC Guidelines on reservations to treaties, Report of the ILC on the work of its 55th session (A/58/10), pp 183–6; one cannot deduce from this the invalidity of the principle of the ‘reservations of internal law’. 375 See supra para. 89. 376 ILC Report (2007), A/62/10, 112, para. 7 of the commentary. 377 See the observations made by the Israeli government on the first draft of the ILC on the law of treaties, which led to the alignment of the English and French definitions of reservation, by the addition of the word ‘certain’ instead of the word ‘some’ in the English version, in Waldock, Fourth Report (A/CN.4/177), supra n 60, p 15. See also the declaration of Chile during the Vienna Conference, Summary Records (A/CONF.39/11), 1st session, supra n 2, 4th meeting of the Committee of the Whole, p 21, para, 5: ‘that the words “to vary the legal effect of certain provisions of the treaty” (sub-paragraph (d)) meant that the reservation must state clearly what provisions it related to. Imprecise reservations must be avoided’. 378 See supra n 250. See also the remarks by R. Riquelme Cortado, supra n 97, p 172. 379 See supra para. 32. 380 See supra para. 74. 381 See also supra paras 126–8. 382 See eg the reservation by Mozambique to the the 1979 International Convention against the Taking of Hostages, 1316 UNTS 205, in MTDSG, supra n 130, ch. XVIII.5 (the same reservation, concerning the extradition of nationals of Mozambique, is found in many other treaties, such as the International Convention on the Suppression of the Financing of Terrorism, ibid, ch. XVIII.11). See also the reservations by Guatemala and the Philippines to 1962 Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, 521 UNTS 231, MTDSG, ch. XVI.3, or those of Colombia (formulated at the time of signature), Iran, and the Netherlands (very vague) to the United Nations Convention against the Illicit Traffic of Narcotic Drugs and Psychotropic Substances, 976 UNTS 105, MTDSG, ch. VI.19. The French reservation to Art. 15(1) of the European Convention on Human Rights has been discussed more extensively—see N. Questiaux, ‘La Convention européenne des droits de l'homme et l'article 16 de la Constitution du 4 octobre 1958’, RDH, 1970, vol. 3, p 651; A. Pellet, ‘La ratification par la France de la Convention européenne des droits de l'homme’, RDP, 1974, p 1358; V. Coussirat-Coustère, ‘La réserve française à l'article 15 de la Convention européenne des droits de l'homme’, JDI, 1975, vol. 102, p 269. 383 Reports of the Committee of the Whole (A/CONF.39/14), Documents of the Conference (A/CONF.39/11/Add.2), supra n 2, p 133, para. 177; see the explanations of the representative of Peru at the 21st meeting of the Committee of the Whole, 10 April 1968, Summary Records (A/CONF.39/11), 1st session, supra n 2, p 109, para. 25. The amendment was rejected by 44 votes to 16, with 26 abstentions, ibid, 1st session, 25th meeting of the Committee of the Whole, 16 April 1968, p 135, para. 26. The records of the debates give few explanations on this rejection. Without doubt a number of delegations, like Italy, considered that it was ‘unnecessary to state that case expressly, since it was a case of reservations incompatible with the object of the treaty’, ibid, 1st session, 22nd meeting of the Committee of the Whole, 10 April 1968, p 120, para. 75; in this sense, see R. Szafarz, supra n 234, p 302. 384 See supra para. 126. Similarly, the reasons given by the Netherlands and the UK in support of their objections to the second reservation of the United States on the Genocide Convention, pursuant to which the objection was based on the ‘uncertainty [the reservation creates] as to the extent of the obligations which the Government of the United States of America is prepared to assume with regard to the Convention’ (MTDSG, supra n 130, ch. IV.1), are more convincing than objections resting on the invocation of internal law (see supra n 372). 385 MTDSG, supra n 130, ch. IV.11. 386 Ibid, p 402. See also the objections raised by Finland and several other States to similar reservations by other States parties, ibid, pp 401–5. 387 Ibid, vol. I, ch. IV.2, pp 164–5. 388 Ibid, vol. I, ch. IV.2, p 171. In the same sense, see the objections by Sweden and Norway, of 15 March 1999, to the reservation made by Bangladesh to the 1953 Convention on the Political Rights of Women, 193 UNTS 135, in MTDSG, ch. XVI.1; or the objections made by Finland to a Guatemalan reservation to the Vienna Convention on the Law of Treaties, and the objections by the Netherlands, Sweden, and Austria to a comparable reservation made by Peru to the same Convention, ibid, ch. XXIII.1.

389 For doctrinal discussions, see esp. A. Sassi, ‘General Reservations to Multilateral Treaties’ in T. Treves (ed.), supra n 171, pp 96–9; and more particularly on its application to the 1979 Convention on the Elimination of All Forms of Discrimination against Women, see B. Clark, supra n 99, pp 299–302, 310–11; J. Connors, ‘The Women's Convention in the Muslim World’ in J. P. Gardner (ed.), supra n 116, pp 85–103; R. Cook, supra n 332, pp 690–2; J. McBride, supra n 370, pp 149–56 (with very many examples); Y. Tyagi, ‘The Conflict of Law and Policy on Reservations to Human Rights Treaties’, BYIL, 2000, vol. 71, pp 181, 198–201, and more specifically, A. Jenefsky, ‘Permissibility of Egypt's Reservations to the Convention on the Elimination of All Forms of Discriminations against Women’, Maryland J of Int'l L and Trade, 1991, vol. 15, p 199. 390 MTDSG, supra n 130, ch. IV.8. See also the reservations by Saudi Arabia (mentioning the ‘norms of Islamic law’), ibid, p 298; Malaysia, ibid, pp 290–1; or the initial reservation by the Maldives, pursuant to which ‘the Republic of Maldives will comply with the provisions of the Convention, except those which the Government may consider contradictory to the principles of the Islamic Sharia upon which the laws and traditions of the Maldives is founded’, ibid, p 342, fn 36. The latter reservation having raised a number of objections, the Maldives modified it and restricted its scope. Nevertheless, Germany once again raised an objection to the reservation and Finland criticized it, ibid, p 342 (for the text of the amended reservation see ibid, p 291). Similarly, several States formulated objections to the reservation made by Saudi Arabia to the 1966 Convention on the Elimination of All Forms of Racial Discrimination, pursuant to which Saudi Arabia would apply the provisions of the Convention ‘providing these do not conflict with the precepts of the Islamic Shariah’, ibid, vol. I, ch. IV.2, p 163. 391 The Holy See ratified the Convention on the Rights of the Child, subject to the reservation that their application ‘be compatible in practice with the particular nature of the Vatican City State and of the sources of its objective law’, MTDSG, supra n 130, ch. IV.11. As has been noted, this wording raises, mutatis mutandis, the same problems as the ‘Shar'ia reservation’, see W. A. Schabas, supra n 326, pp 478–9. 392 MTDSG, supra n 130, ch. IV.8. 393 Ibid, p 334. See also the objections by Germany, Austria, Finland, Norway, the Netherlands, Portugal, and Sweden, ibid, pp 305–34. The reservations made by many Islamic States to specific provisions of the Convention, justified by the incompatibility of said provisions with Shar'ia law, are certainly less subject to criticism on this plane, even though many of these reservations have been objected to by certain States parties. See eg B. Clark, supra n 99, p 300, who notes that the reservation by Iraq to Art. 16 of the 1979 Convention on the Elimination of All Forms of Discrimination against Women, based on Shar'ia law, was specific and entailed a regime which was more favourable than that of the Convention. This reservation was nevertheless objected to by Mexico, the Netherlands, and Sweden, MTDSG, supra n 130, ch. IV.8. 394 Cf the reservation by Pakistan to the Convention on the Elimination of All Forms of Discrimination against Women (ibid, p 296) and the objections by Austria, Finland, Germany, and Portugal, ibid, pp 305–6, 312–13, 316–17, 344 (fn 49), respectively. 395 MTDSG, supra n 130, ch. IV.1. 396 General Comment No. 24, supra n 126, para. 19; see also para. 12, which links the question of the invocation of internal law to that of ‘reservations formulated in general terms’. 397 Judgment of 29 April 1988, Belilos, supra n 121, para. 55—see supra para. 42. For a detailed analysis of the condition of generality established in Art. 57 of the Convention, see esp. I. Cameron and F. Horn, supra n 114, pp 97–109; R. St J. MacDonald, supra n 121, pp 433–8, 443–8. 398 Report of the Commission, 5 May 1982, Temeltasch, supra n 117, p 588. See P. H. Imbert, supra n 117, pp 599–607. 399 ILC Reports (2007), A/62/10, pp 82–8, and, in particular, pp 82–3, para. 1 of the commentary. 400 MTDSG, supra n 130, ch. XXIII.1. See also the objections formulated in similar terms by Germany, Belgium, Denmark, Finland, United Kingdom, and Sweden, ibid. In the Anglo-French Continental Shelf case, the United Kingdom maintained that the French reservation to Art. 6 of the Convention on the Continental Shelf was in reality a reservation ‘to the rules of customary law’ and was as such ‘inadmissible as a reservation to Article 6’, supra n 96, p 48, para. 50. 401 MTDSG, supra n 130, ch. III.3. In reality, it is not the provisions in question which remain in force, but rather the customary norms that they express, see infra para. 140. See also the objections of Poland to the reservations by Bahrain and Libya, ibid, p 111; and D. W. Greig, supra n 189, p 88. 402 See the Dissenting Opinion of Judge Morelli to the 1969 North Sea Continental Shelf (Federal Republic of Germany v Denmark and Netherlands), Judgment, 20 February 1969, ICJ Reports 1969, pp 197–8, and the numerous comments quoted by P. H. Imbert, supra n 14, p 244, fn 20; see also G. Teboul, supra n 91, p 685. 403 North Sea Continental Shelf, ibid, pp 38–9, para. 63. 404 See supra para. 87. 405 North Sea Continental Shelf, supra n 402, p 40, para. 66 and p 39, para. 63. In the same sense, see the Separate Opinion of Judge Padilla Nervo, ibid, pp 85, 89; contra: Dissenting Opinion of Judge Koretsky, ibid, p 154. 406 ‘[N]ot true that the Court affirms the inadmissibillty of reservations with regard to the rules of customary law’ (editor's translation), P. H. Imbert, supra n 14, p 244. In the same

sense, See A Pellet, supra n 22, pp 507–8. In his Dissenting Opinion, Judge Tanaka took the opposite position that: a State party to the Convention cannot exclude by reservation the application of the provision for settlement by agreement, since this is required by general international law, notwithstanding the fact that Article 12 of the Convention does not expressly exclude Article 6, paragraphs 1 and 2, from the exercise of the reservation faculty. (ibid, pp 171, 182) But this opinion confuses the question of the faculty to make reservations with that of the effects of the reservation when the provision to which it is attached has customary character, or even peremptory character (Judge Tanaka considered that the principle of equidistance ‘must be recognized as jus cogens’, ibid). 407 North Sea Continental Shelf, supra n 402, p 40, para. 65; see, in this sense, the Dissenting Opinion of Judge Morelli, ibid, p 198. 408 See, in this sense, the Dissenting Opinion of Judge Ad Hoc Sørensen, ibid, pp 241, 248. 409 See the position of Briggs in the declaration appended to the arbitral award in the AngloFrench Continental Shelf case, supra n 96, pp 127f. 410 See esp. M. Coccia, supra n 12, pp 31–2; G. Gaja, ‘Le riserve al Patto sui diritti civili e politici e il diritto consuetudinario’, RDI, 1996, p 451; P. H. Imbert, supra n 240, p 48; R. Riquelme Cortado, supra n 97, pp 159–71; L. Sucharipa-Behrman, supra n 134, pp 76–7. 411 Cf the objection made by Finland to the reservation formulated by Yemen to Art. 5 of the 1966 Convention on the Elimination of All Forms of Racial Discrimination: ‘By making a reservation a State cannot contract out from universally binding human rights standards’ (this holds true as a general rule), MTDSG, supra n 130, ch. IV.2. 412 In this sense, see the Dissenting Opinion of Judge Sørensen in the North Sea Continental Shelf cases, supra n 402, p 248; see also M. Coccia, supra n 12, p 32. See, however, infra para. 147. 413 In this sense, see R. R. Baxter, ‘Treaties and Customs’, RCADI, 1970, vol. 129, pp 25, 50; M. Coccia, supra n 12, p 31; G. Gaja, supra n 410, p 451; G. Teboul, supra n 91, pp 711–14. The same can occur, in certain circumstances (but not always), for the existence of a reservation clause, cf P. H. Imbert, supra n 14, p 246; P. Reuter, supra n 307, p 631; or pp 370–1, fn 16. 414 Report of the Human Rights Committee to the General Assembly, 1995, A/50/40, para. 7. 415 See infra para. 145. 416 This is the case in France where treaties (by virtue of Art. 55 of the Constitution), but not customary norms, prevail over the internal law (cf Conseil d'Etat, Ass., 20 October 1989, Nicolo, and 6 June 1997, Aquarone, Leb. p 206, concl. Bachelier). 417 Report of the Human Rights Committee to the General Assembly, 1996, A/51/40, vol. I, p 105, para. 2. In the same sense, see the comments by the United States in Report of the Human Rights Committee to the General Assembly, 1995, A/50/40. See also G. CohenJonathan, ‘Les réserves dans les traités de droits de l'homme’, RGDIP, 1996, vol. 100, pp 915, 932–3. 418 See F. Hampson, Working document, supra n 102, fn 45. 419 See also infra para. 145. 420 General Comment No. 24, supra n 126, para. 8. 421 See A. Pellet, Second Report, A/CN.4/477/Add.1, supra n 83, pp 64–5, paras 143–7. 422 ‘[W]hat deserves reflection is the balance of the entirety to which the reservation applies, which constitutes not the object and purpose of the treaty itself, but the object and purpose of the negotiation from which this treaty emanates’, P. H. Imbert, supra n 14, p 246. See also G. Teboul, supra n 91, p 680: ‘Toutes deux utiles, les notions de réserve et de convention de codification s'accommodent pourtant mal l'une de l'autre’ (‘Both being useful, the notions of reservations and codification convention badly adapt to each other’: editor's translation) (this study centres on the question of reservations to codification conventions, pp 679–717, passim). 423 P. Reuter, supra n 307, pp 630–1 or 370. The author adds that, in this way, the treaty would also have ‘engendré une situation plus éloignée de son objet et de son but que s'il n'avait pas existé, puisqu'une règle générale voit son champ d'application se restreindre’ (‘generated a situation farther removed from its object and purpose than if the treaty had not existed at all, since a general rule would see its scope of application restricted’: editor's translation). This second statement is more debatable: it appears to postulate that the reserving State finds itself, by virtue of the reservation, freed from the application of the rule; this is not the case, see infra n 432. 424 Ago, YILC, 1965, vol. I, 797th meeting, 8 June 1965, p 153, para. 58. 425 ‘[O]n reflection, the overall balance which the reservation threatens is not the object and purpose of the treaty itself, but the object and purpose of the negotiations which gave rise to the treaty’ (editor's translation), G. Teboul, supra n 91, p 700. 426 See eg the reports of the ILC on the work of its 8th (1956) and 48th (1995) sessions, YILC, 1956, vol. II, pp 255–6, para. 26, and YILC, 1996, vol. II, Part Two, p 86, paras 156–7. See also supra para. 57. 427 ‘Which quantum of rules of customary origin should a treaty include to qualify as a “codification treaty”?’ (editor's translation), P. Reuter, supra n 307, p 632 (or p 371). 428 See supra para. 110, and on the question of the death penalty in relation to Arts 6 and 7 of the 1966 Covenant on Civil and Political Rights (only to conclude in the negative), supra n

331, pp 308–10. 429 See supra para. 136. 430 As examples, as at 12 December 2010, the Vienna Convention on Diplomatic Relations, 500 UNTS 95, had 55 reservations or declarations (of which 50 are still in force) from 44 States parties (currently, 41 States parties maintain reservations in force), see MTDSG, supra n 130, ch. III.3; and the 1969 Convention on the Law of Treaties had 74 reservations or declarations (of which 68 are still in force) formulated by 37 States (currently 35), ibid, ch. XXIII.1. For its part, the 1966 Covenant on Civil and Political Rights, which today appears to be largely codificatory of customary international law, has 233 reservations or declarations, formulated by 65 States, ibid, ch. IV.4. 431 See supra para. 136. 432 In this sense, see R. Jennings and A. Watts, Oppenheim's International Law (9th edn, Harlow: Longman, 1992), vol. II, p 1244; G. Teboul, supra n 91, p 711; P. Weil, ‘Vers une normativité relative en droit international?’, RGDIP, 1982, pp 5, 43–4, published in English as ‘Towards Relative Normativity in International Law?’, AJIL, 1983, vol. 77, p 413. See also the authors quoted supra n 409; W. A. Schabas, supra n 91, p 56. Reuter gives a contrary argument: (‘…entre l’État qui formule la réserve et les parties qui s'abstiennent de présenter une objection, la règle coutumière cesse de s'appliquer puisque par un mécanisme conventionnel postérieur à l'établissement de la règle coutumière son application a été suspendue' (‘…between the State which formulates a reservation and the parties who abstain to present an objection, the customary rule ceases to apply since through a conventional mechanism subsequent to the establishment of the customary rule, its application has been suspended’ (editor's translation)), supra n 307, pp 630–1, 370; in the same sense, see G. Teboul, supra n 91, pp 690, 708. This reasoning faces serious objections: see infra para. 147. 433 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Jurisdiction and Admissibility, Judgment, 26 November 1984, ICJ Reports 1984, pp 392, 424–5, para. 73; see also the Dissenting Opinion of Judge Morelli appended to the North Sea Continental Shelf cases, supra n 402, p 198. 434 North Sea Continental Shelf, supra n 402, p 248. 435 MTDSG, supra n 130, ch. XXIII.1; see also supra nn 351–3 and the objections by the Netherlands and Poland quoted supra para. 136. 436 Paragraph 140, first bullet point. 437 See also, G. Teboul, supra n 91, pp 690, 707. 438 See supra para. 51. 439 See infra the commentary on Arts 20 and 21. 440 Article 2(1)(d) of the Vienna Convention. 441 See Art. 21 of the Convention. 442 See supra para. 145. 443 See eg R. Riquelme Cortado, supra n 97, p 147. See also A. Pellet, Second Report, A/CN.4/477/Add.1, supra n 84, p 64, paras 141–2. 444 See also the Dissenting Opinion of Judge Tanaka in North Sea Continental Shelf, supra n 402, p 182. 445 General Comment No. 24, supra n 126, para. 8. Not without reason, France in its commentaries (see supra n 417, A/51/40, p 104, para. 3), maintained that ‘Paragraph 8 of general comment No. 24 (52) is drafted in such a way as to link the two distinct legal concepts of “peremptory norms” and rules of “customary international law,” to the point of confusing them’. 446 Cf the doubts expressed in this respect by the United States, which, in its observations to General Comment No. 24, transposed to the provisions codifying peremptory norms the solution applied to the case of customary norms, see Observations, supra n 6, pp 149–50. 447 ‘[T]he rule prohibiting the derogation from a jus cogens norm does not only concern conventional relations but also all legal acts, among which the unilateral acts’, G. Teboul, supra n 91, p 707, fn 52, referring to J. D. Sicault, ‘Du caractère obligatoire des engagements unilatéraux en droit international public’, RGDIP, 1979, vol. 83, pp 633, 663 and the scholarship quoted therein. 448 This is all the more so if one considers the ‘couple’ reservation/acceptance as an agreement modifying the treaty in the relations between the two States concerned, cf M. Coccia, supra n 12, pp 30–1; this analysis is, however, not very convincing, see infra paras 187–90. 449 There are, of course, only a few examples of reservations clearly contrary to a jus cogens norm. See, however, the reservation by Myanmar, formulated at the time of accession, in 1993, to the 1989 Convention on the Rights of the Child, pursuant to which Myanmar reserved the possibility not to apply Art. 37 of the Convention and to exercise its ‘powers of arrest, detention, imprisonment, exclusion, interrogation, enquiry and investigation’ in relation to children for ‘the protection of the supreme national interest’, in MTDSG, supra n 130, ch. IV.11. This reservation, objected to by four States (on the basis that the reservation referred to national law, and not because the reservation was contrary to a peremptory norm), was withdrawn in 1993, see id. 450 See supra para. 140. 451 This prohibition is not the consequence of Art. 19(c) of the Vienna Convention, but rather

the consequence of the principle established in Art. 53 of the same Convention. 452 ILC Report (2007), A/62/10, pp 99–104. 453 In this sense, see eg the reservations formulated by Malawi and Mexico to the Convention against the Taking of Hostages, which subordinate the application of Art. 17 to the conditions of their declarations for the acceptance of the Court's compulsory jurisdiction, made pursuant to Art. 36(2) of the Statute of the ICJ, in MTDSG, supra n 130, ch. XVIII.5. It cannot be doubted that these reservations are not excluded as a matter of principle, see supra para. 119. 454 See the commentary of guideline 4.4.3 in ILC Report (2010), A/65/10, pp 174–5. 455 On this question, see esp. R. Riquelme Cortado, supra n 97, pp 152–9. See also guideline 3.1.10 and its commentary, ILC Report (2007), A/62/10, pp 104–9. 456 See Art. 4(2) of the Covenant on Civil and Political Rights; Art. 15(2) of the European Convention (see also, Art. 3 of Protocol 6, Art. 4(3) of Protocol 7, and Art. 2 of Protocol 13); and Art. 27 of the Inter-American Convention. Neither the Covenant on Social, Economic and Cultural Rights, 993 UNTS 3, nor the African (Banjul) Charter, 1520 UNTS 21, contains similar clauses. See F. Ouguergouz, ‘L'absence de clauses de dérogation dans certains traités relatifs aux droits de l'homme’, RGDIP, 1994, vol. 98, p 287. 457 General Comment No. 24, supra n 126, para. 10. 458 Supra n 125, para. 61. 459 Separate Opinion of Judge Cançado Trindade to the Inter-American Court of Human Rights, Judgment in Blake v Guatemala, Reparations and Costs, 22 January 1999 Series C, no. 27, para. 11. See the favourable comments by R. Riquelme Cortado, supra n 97, p 155. In the same sense, see the objection by the Netherlands, quoted infra n 462. 460 See the commentary of the United Kingdom to General Comment No. 24 of the Human Rights Committee: ‘there is a clear distinction between choosing not to enter into treaty obligations and trying to opt out of customary international law’, Report of the Human Rights Committee to the General Assembly, 1995, A/50/40, para. 6. 461 See F. Hampson, Working document, supra n 102, para. 52; R. Higgins, ‘Human Rights: Some Questions of Integrity’, MLR, 1989, vol. 52, pp 1, 15; J. McBride, supra n 370, pp 163–4; J. Polakiewicz, supra n 97, p 113; C. J. Redgwell, ‘Reservations to treaties and Human Rights Committee General Comment No 24(52)’, ICLQ, 1997, vol. 46, pp 390, 402; contra: L. Lijnzaad, supra n 23, p 91. 462 MTDSG, supra n 130, ch. IV.4. See also, although less clearly based on the non-derogable nature of Arts 6 and 7, the objections by Germany, Belgium, Finland, Italy, Norway, the Netherlands (which specified that the US reservation to Art. 7 ‘has the same effect as a general derogation from this article, while according to article 4 of the Covenant, no derogations, not even in times of public emergency, are permitted’), Portugal, and Sweden, ibid, pp 218–31. 463 See the numerous examples given by Schabas in relation to the 1966 Convenant on Civil and Political Rights, the European Convention, and the Inter-American Convention on Human Rights, supra n 91, pp 51–2, fn 51. 464 Cf C. J. Redgwell, supra n 461, p 402. 465 See supra paras 102, 111. 466 See supra esp. paras 140–4, 149–50. 467 See supra para. 113. See also guideline 3.1.6 and its commentary, ILC Report (2007), A/62/10, pp 77–82. 468 P. Reuter, supra n 5, p 89. 469 See eg J. Combacau, ‘Logique de la validité’, supra n 139, pp 197–8, 201–2; K. Zemanek, supra n 43, p 331. 470 See eg A. Cassese, ‘A New Reservations Clause (Article 20 of the United Nations Convention on the Elimination of All Forms of Racial Discrimination’ in Recueil d'études de droit international en hommage à Paul Guggenheim (Geneva: IUHEI, 1968), pp 266–304; C. Redgwell, supra n 301, pp 13–14; R. Riquelme Cortado, supra n 97, pp 317–22. 471 This reservation clause is inspired, without doubt, by the failed attempts to include in the Vienna Convention itself a majority mechanism for the appreciation of the validity of reservations. For a summary of the discussions on this question at the ILC and during the Vienna Conference, see R. Riquelme Cortado, supra n 97, pp 314–15; see also, the French version of the present commentary, supra n 4, pp 768–9. 472 See also eg the 1954 Convention Concerning Customs Facilities for Touring, 276 UNTS 191, Art. 20(1), pursuant to which reservations are acceptable if they are made ‘before the signing of the Final Act’ and if they ‘have been accepted by a majority of the members of the Conference and recorded in the Final Act’, and Art. 20(2) and (3) allowing reservations made after the signature if one-third of the States parties formulate no objections within 90 days of the notification of the reservation by the Secretary-General. Similar provisions can be found in Art. 14 of the Additional Protocol to the Convention, 276 UNTS 191, and Art. 39 of the Customs Convention on the Temporary Importation of Private Road Vehicles, 282 UNTS 249. See also Art. 50(3) of the 1961 Single Convention on Narcotic Drugs, 520 UNTS 204, and Art. 32(3) of the 1971 Convention on Psychotropic Substances, 1019 UNTS 175, both of which subject the admissibility of reservations to the absence of objections from one-third of the States parties. 473 One can nevertheless have doubts in relation to the validity of a collegiate system since

the object of the reservation itself is precisely to ‘cover the position of a state which regarded as essential a point on which a two-thirds majority had not been obtained’, Jiménez de Aréchaga, YILC, 1962, vol. I, 654th meeting, 30 May 1962, p 164, para. 37. See also the sharp critiques by A. Cassese, supra n 470, passim and esp. pp 301–4. 474 On the inactivity of States in this subject, see the comments by Waldock as expert consultant to the Vienna Conference, Summary Records (A/CONF.39/11), supra n 2, 24th meeting of the Committee of the Whole, 16 April 1968, p 126, para. 9; P. H. Imbert, supra n 14, pp 146–7; R. Riquelme Cortado, supra n 97, pp 316–21. See also infra para. 178. 475 See infra the commentary on Art. 20, at paras 72 ff. 476 See supra para. 41. Nevertheless, the Committee on the Elimination of Racial Discrimination has subsequently softened its position; thus, in 2003, it held, in relation to a reservation formulated by Saudi Arabia that: ‘The broad and imprecise nature of the State party's general reservation raises concern as to its compatibility with the object and purpose of the Convention. The Committee encourages the State party to review the reservation with a view to formally withdrawing it’, Report of the Committee on the Elimination of Racial Discrimination on the work of its 62nd and 63rd sessions (2003), General Assembly, Official Documents, 58th session, Supplement No. 18, A/58/18, p 42, para. 209. 477 See supra para. 123. 478 In this sense, see H. J. Bourguignon, supra n 121, p 359; D. Bowett, supra n 138, p 81. 479 In this sense, see the Advisory Opinion of the ICJ on Reservations to the Genocide Convention, supra n 6, ICJ Reports 1951, p 27, and the case law quoted supra at para. 119. See also the arbitral award in the Anglo-French Continental Shelf case, supra n 96, p 50, para. 56. See also the position of the ICJ concerning the validity of ‘reservations’ (albeit of a peculiar nature) included in the optional declarations for the acceptance of the compulsory jurisdiction of the Court, formulated pursuant to Art. 36(2) of the ICJ Statute in, eg, Right of Passage over Indian Territory (Portugal v India), Preliminary Objections, 26 November 1957, ICJ Reports 1957, pp 125, 141–4; Separate Opinion of Judge H. Lauterpacht, Certain Norwegian Loans (France v Norway), Judgment, 6 July 1957, ICJ Reports 1957, pp 34, 43–55; Dissenting Opinion Judge H. Lauterpacht, Interhandel (Switzerland v United States of America), Preliminary Objections, 21 November 1959, ICJ Reports 1959, pp 95, 103–6. See also the Dissenting Opinions of President Klaestad, ICJ Reports 1959, p 75 and Judge Armand-Ugon, ICJ Reports 1959, pp 85, 93. 480 See also J. Combacau, ‘Logique de la validité’, supra n 139, p 199, and infra the commentary on Art. 23, para. 70. 481 See infra the commentary on Art. 23, paras 71–6. 482 See ibid, paras 77, 78, and infra para. 176. 483 See supra paras 41–4. 484 See guideline 3.2.1 of the ILC Guide to Practice and its commentary (ILC Report, 62nd session (2009), A/64/10, pp 350-4. 485 See supra paras 40 ff. 486 See infra the commentaries to these provisions. See, however, General Comment No. 24 of the Human Rights Committee, supra n 126, para. 18: ‘This [the determination whether a specific reservation is compatible with the object and purpose of the Covenant]…is an inappropriate task for States parties in relation to human rights treaties’; this sentence contradicts the previous paragraph, where the Committee had recognized that ‘an objection to a reservation made by States may provide some guidance to the Committee in its interpretation as to its compatibility with the object and purpose of the Covenant’. 487 See the judgment of the Swiss Federal Tribunal of 17 December 1991, in the case of Elisabeth B c Conseil d'État du canton de Thurgovie (Journal des Tribunaux, I. Droit fédéral, 1995, pp 523–37), and the commentary by J. F. Flauss, ‘Le contentieux des réserves à la CEDH devant le Tribunal fédéral suisse: Requiem pour la déclaration interprétative relative à l'article 6 para. 1’, RUDH, 1993, vol. 5, p 297. 488 See supra paras 58–62. 489 Paragraphs 169–73 take on the Tenth Report on reservations to treaties (2005) (A/CN.4/558/Add.2, paras 161–5), which in turn take largely from the Second Report on reservations to treaties (A/CN.4/477/Add.1, supra n 83, pp 76–7, paras 211–15), although it adds a list of five guidelines (3.2 to 3.2.4, A/CN.4/558/Add.2, paras 166–80). For a very clear opinion in favour of complementarity of control systems, see L. Lijnzaad, supra n 23, pp 97–8; G. Cohen-Jonathan, supra n 417, p 944. 490 Nevertheless, this is subject to the existence of ‘self-contained’ regimes, among which are the regimes created by the European and Inter-American Conventions on human rights and the African (Banjul) Charter. Cf B. Simma, ‘Self-Contained Regimes’, NYIL, 1985, vol. 16, pp 111, 130 ff; T. Meron, Human Rights and Humanitarian Norms as Customary Law (Oxford: Clarendon Press, 1989), pp 230 ff. 491 See supra n 486. 492 See esp. P. H. Imbert, who notes the risk of incompatibilities internal to the European Convention, especially in the positions taken by the Court and the Committee of Ministers, supra n 117, pp 617–19; ICLQ, 1984, vol. 33, pp 558, 590–1 of the English version. 493 It must be noted, however, that the problem is posed by virtue of the extension in time of ratifications and accessions; see infra the commentary on Art. 20, at para. 39. 494 See P. H. Imbert, supra n 14, p 146, fn 25; supra n 212, pp 113–14, 130–1. Contra:

statement by H. Golsong during the Rome Colloquium, 5–8 November 1975, Fourth International Colloquium on the European Convention on Human Rights (Strasbourg: Council of Europe, 1976), para. 7; R. W. Edwards Jr, supra n 150, pp 387–8. 495 Cf B. Clark, supra n 99, pp 312–14. 496 Whereas this is their natural tendency. Cf the opposing points of view between the Human Rights Committee (‘This [the determination whether a specific reservation is compatible with the object and purpose of the Covenant]…is an inappropriate task for States parties in relation to human rights treaties’, General Comment No. 24, para. 18, see supra para. 42, and n 484) and France (‘it is therefore for the [States parties], and for them alone, unless the treaty states otherwise, to decide whether a reservation is incompatible with the object and purpose of the treaty’, Observations to General Comment No. 24, supra n 417, p 106, para. 7). 497 See supra paras 29–34. 498 See, however, the extremely fierce reaction to General Comment No. 24 contained in the Bill presented to the US Senate by Senator Helms on 9 June 1995, according to which: no funds authorized to be appropriated by this Act nor any other Act, or otherwise made available may be obligated or expended for the conduct of any activity which has the purpose or effect of (A) reporting to the Human Rights Committee in accordance with Article 40 of the International Covenant on Civil and Political Rights, or (B) responding to any effort by the Human Rights Committee to use the procedures of Articles 41 and 42 of the International Covenant on Civil and Political Rights to resolve claims by other parties to the Covenant that the United States is not fulfilling its obligations under the Covenant, until the President has submitted to the Congress the certification described in paragraph (2). (2) CERTIFICATION— The certification referred to in paragraph (1) is a certification by the President to the Congress that the Human Rights Committee established under the International Covenant on Civil and Political Rights has (A) revoked its General Comment no 24 adopted on November 2, 1994; and (B) expressly recognized the validity as a matter of international law of the reservations, understandings, and declarations contained in the United States instrument of ratification of the International Covenant on Civil and Political Rights. (A Bill to authorize appropriations for the Department of State for fiscal years 1996 through 1999, 104th Congress, 1st session, S.908-Report No. 104-95, pp 87–8.) 499 Cf D. W. Greig, supra n 189, p 83. 500 F. Horn, supra n 10, p 131; see also J. Combacau, ‘Logique de la validité’, supra n 139, p 199. 501 See P. H. Imbert, supra n 14, pp 137–40. 502 It is useful to recall that the test was included in the draft only at a late stage, for its origin is to be found in Waldock's First Report of 1962, see supra para. 14. 503 Article 17(2)(a); see supra paras 14, 102; see also the intervention by the Special Rapporteur during the 651st meeting of the ILC, YILC, 1962 vol. I, 651st meeting, 25 May 1962, pp 145–6, para. 85. 504 See YILC, 1962, vol. I, 651st to 654th meeting, pp 139–68, and 656th meeting, pp 172–5. 505 Ibid. 506 See esp. YILC, 1962, vol. I, 663rd meeting, 18 June 1962, p 229: during the debates concerning the new Art. 18bis, titled ‘The validity of reservations’, all the members referred to the test of compatibility with the object and purpose of the treaty, which was however not mentioned in the text of the draft prepared by the Drafting Committee; more generally, see supra paras 15–19. Subsequently, the title of Art. 18bis became ‘The legal effects of reservations’, rather than ‘The validity of reservations’, YILC, 1962, vol. I, 667th meeting, 25 June 1962, pp 252–3, which shows that the validity of reservations is the subject of draft Art. 17 (now Art. 19 of the Convention). 507 YILC, 1962, vol. II, p 181, para. 22. 508 Fourth Report, A/CN.4/177, supra n 60, p 52, para. 9. 509 YILC, 1966, vol. II, p 207, para. 17. 510 Summary Records (A/CONF.39/11), supra n 2, 1st session, 21st meeting of the Committee of the Whole, 10 April 1968, p 113, para. 63. 511 See the Japanese amendment (A/CONF.39/C.1/L.133 and Rev.1), in Documents of the Conference (A/CONF.39/11/Add.2), supra n 2, p 133, para. 177. See also the intervention by the Japanese delegate during the Conference, Summary Records (A/CONF.39/11), supra n 2, 1st session, 21st meeting of the Committee of the Whole, 10 April 1968, p 110, para. 29, and ibid, 24th meeting of the Committee of the Whole, 16 April 1968, p 131, paras 62–3; and the interventions of other delegations, including, the United Kingdom (ibid, 21st meeting of the Committee of the Whole, 10 April 1968, p 114, para. 76); Vietnam (ibid, 21st meeting of the Committee of the Whole, 10 April 1968, 109, para 22); Italy (ibid, 22nd meeting of the Committee of the Whole, 11 April 1968, p 120, para. 79); China (ibid, 23rd meeting of the Committee of the Whole, 11 April 1968, p 121, para. 3); Singapore (ibid, 23rd meeting of the Committee of the Whole, 11 April 1968, p 122; para. 16); New Zealand (ibid, 24th meeting of the Committee of the Whole, 16 April 1968, p 127, para. 18), India (ibid, 24th meeting of the Committee of the Whole, 16 April 1968, pp 128–9, paras 32, 38); Zambia (ibid, 24th meeting of the Committee of the Whole, 16 April 1968, p 129, para. 41); Ghana ((ibid, 22nd meeting of the Committee of the Whole, 11 April 1968, p 120, paras 71–2). The representative of Sweden, who supported in principle the idea of a control mechanism, considered that the Japanese proposal ‘was no more than an attempt at solving the problem’ (ibid, 22nd meeting of the

Committee of the Whole, 11 April 1968, p 117, para. 32). 512 Paragraph 93. 513 See supra para. 94. 514 Cf G. Gaja, supra n 139, p 317. 515 See the Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, ST/LEG/7 (New York: United Nations, 1999), p 57, paras 191–2. 516 Ibid, pp 57–8, paras 194–6, emphasis added. The practice followed by the Secretary General of the Council of Europe is similar in case of difficulty, he can consult (and does consult) the Committee of Ministers; see J. Polakiewicz, supra n 97, pp 90–3. 517 ILC Report, 58th session (2006), A/61/10, p 313; the words ‘invalid’ (‘invalide’ in French) and ‘invalidity’ (‘non-validité ’) have been substituted by ‘impermissible’ (licite) and ‘impermissibility’ (illicéité) which were used in the first version of this guideline, adopted in 2002 (54th session (2002), A/57/10, p 59). On this change, see infra para. 184. 518 Ibid (2006), p 361, para. 5 of the commentary on guideline 2.1.8 (‘Procedure in case of manifestly invalid reservations’). 519 See A. Fodella, supra n 215, pp 143–7. 520 See supra paras 87–9. 521 On the distinction between reservations and interpretative declarations, simple or conditional, see guidelines 1.3 to 1.3.3 of the ILC Guide to practice and their commentaries, YILC, 1999, vol. II, Part Two, pp 107–12. 522 The phrase common to the two provisions is: ‘…unless the treaty otherwise provides…’. 523 See D. W. Greig, supra n 189, pp 83–4. 524 See infra the commentary on Art. 20. 525 See esp. D. Carreau, Droit international (Paris: Pedone, 2007), p 140; G. Gaja, supra n 139, pp 315–18; D. W. Greig, supra n 189, pp 86–90; P. H. Imbert, supra n 14, pp 134–7. 526 See M. Coccia, supra n 12, p 33; R. Szafarz, supra n 234, p 301. 527 See also infra the commentary on Art. 20 528 See D. Bowett, supra n 138, p 80; C. Redgwell, supra n 461, pp 404–6. 529 See supra para. 74, and infra para. 180. 530 See supra paras 93, 176. 531 See also guideline 3.2 proposed by the Special Rapporteur in his Tenth Report (A/CN.4/558/Add.2, para. 187). 532 Article 21 (Legal elects of reservations and of objections to reservations): ‘A reservation established with regard to another party in accordance with articles 19, 20 and 23…’. 533 But it should be so a fortiori for reservations not prohibited by the treaty. 534 M. Coccia, supra n 12, pp 25–6. 535 Cf Arts 1 and 2, of the ILC Articles attached to Res. 53/86 of the General Assembly, 12 December 2001. 536 See G. Gaja, supra n 139, p 314, fn 29. 537 Article 12, ILC Articles on the Responsibility of States for Internationally Wrongful Acts. 538 Gabčíkovo-Nagymaros Project, supra n 311, p 38, para. 47. See also the award in Rainbow Warrior (New Zealand/France), RIAA, 1990, vol. 20, pp 215, 251, para. 75. On the relationship between these two fields of the law, see esp. D. Bowett, ‘Treaties and State Responsibility’ in Mélanges Virally, supra n 139, pp 137–45; J. Combacau, ‘Logique de la validité’, supra n 139, pp 195–203; P. M. Dupuy, ‘Droit des traités, codification et responsabilité internationale’, AFDI, 1997, vol. 43, p 7; P. Weckel, ‘Convergence du droit des traités et du droit de la responsabilité internationale’, RGDIP, 1998, vol. 102, p 647; P. Weil, ‘Droit des traités et droit de la responsabilité’ in Le droit international dans un monde en mutation—Liber Amicorum Jiménez de Aréchaga (Montevideo: FCU, 1994), vol. I, p 523; A. Yahi, ‘La violation d'un traité: L'articulation du droit des traités et du droit de la responsabilité internationale’, RBDI, 1993, vol. 26, p 437. 539 See, in this sense, Art. 1 of the ILC Articles on State Responsibility, supra n 535. 540 Cf Arts 31 and 34 of the ILC draft. 541 See infra the commentaries on Arts 20 and 21. 542 On this notion, see infra the commentary on Art. 20, at paras 50–2. 543 See supra n 516. This question was raised from the very start of the resumption of work on reservations to treaties by the ILC: within the preliminary outline established in 1993 for this topic, the future Special Rapporteur on the subject had used the expression ‘validity of reservations’, which the Commission then took up, see Outlines prepared by members of the Commission on Selected topics of international law, A/CN.4/454, YILC, 1993, vol. II, Part One, p 231; and Report of the ILC on the work of its 45th session (A/48/10), YILC, 1993, vol. II, Part Two, p 96, para. 428. This expression had been criticized by Bowett (who considered that this led to confusion between the lawfulness of the reservation and its opposability) and by the UK government (which considered that a non-permissible reservation was nevertheless a reservation), see A. Pellet, First Report on reservations to treaties, A/CN.4/470, paras 97–8. 544 See the commentary on guideline 2.1.8 (Procedure in case of manifestly invalid

reservations), ILC Report, 58th session (2006), A/61/10, p 361, para. 7; compare with ILC Report, 54th session (2002), A/57/10, p 114, para. 7. 545 ‘Although the Commission initially used the word “impermissible” to characterize reservations covered by the provisions of article 19 of the Vienna Conventions, some members pointed out that the word was not appropriate in that case…At its fifty-eighth session, the Commission therefore decided to replace the words “permissible”, “impermissible”, “permissibility” and “impermissibility” by “valid”, invalid”, “validity” and “invalidity”, and to amend this commentary accordingly’ (para. (7) of the commentary Guideline 2.1.8, ILC Report, 58th Session (2007), A/61/10, p 361. 546 Nor, a fortiori, the responsibility of the States which implicitly accept a prohibited reservation or a reservation incompatible with the object and purpose of the treaty. See, however, L. Lijnzaad, supra n 23, p 56: ‘The responsibility for incompatible reservations is… shared by reserving and accepting States’—but this appears to derive from the fact that the author does not consider incompatible reservations or their acceptance as internationally wrongful acts. See also guideline 3.3.1 of the ILC Guide to practice. 547 See supra paras 49–51. 548 See eg D. Bowett, supra n 138, p 84; G. Gaja, supra n 139, pp 318–20; see also supra para. 94. 549 D. Bowett, ibid. See the critiques addressed to this position by D. W. Greig, supra n 189, pp 56–7. See also the references made by C. Tomuschat to the debate in the ILC (supra n 22, p 467, fn 12). However, these debates are less conclusive than the author suggests. 550 See infra para. 94. 551 Summary Records (A/CONF.39/11), supra n 2, 25th meeting of the Committee of the Whole, 16 April 1968, p 133, para. 2. This interpretation was presented at the plenary session as the ‘correct’ one by the represenative of Canada, who subordinated its acceptance of Art. 16 to this interpretation without contradiction, Summary Records (A/CONF.39/11/Add.1), supra n 2, 10th plenary meeting, 29 April 1969, pp 29–30, paras 31–3. See also supra paras 92–2; D. Bowett, supra n 138, pp 82–3; C. Tomuschat, supra n 22, p 467, who notes that during the ILC debates, its members had been unanimous on this point. 552 Paragraphs 94, 176. 553 See L. Lijnzaad, supra n 23, pp 55–9. 554 In this sense, see D. W. Greig, supra n 189, p 57; L. Sucharipa-Behrman, supra n 134, pp 78–9. See, however, the comments by Jiménez de Aréchaga and Amado during the debates on Waldock's proposals, YILC, 1962, vol. I, 653rd meeting, 29 May 1962, p 158, paras 44–5 and p 160, para. 63. 555 For the commentary of this guideline, see ILC Report, 62nd Session (2010), A/65/10, pp 182–192. 556 First Report, A/CN.4/144, supra n 47, p 65, para. 9. 557 For the text of the draft article, see ibid, p 50. 558 The provision faced the opposition of Tunkin (YILC, 1962, vol. I, 651st meeting, 25 May 1962, p 140, para 19) and Castrén (YILC, 1962, vol. I, 651st meeting, 25 May 1962, paras 67– 8), who considered it to be superfluous. It disappeared from the simplified draft eventually adopted by the Drafting Committee (ibid, 663rd meeting, 18 June 1962, p 221, para. 3). 559 This solution was retained by the European Agreement concerning the Work of Crews of Vehicles engaged in International Road Transport (AETR), of 1 July 1970, Art. 19(2) of which establishes that: If at the time of depositing its instrument of ratification or accession a State enters a reservation other than that provided for in paragraph 1 of this article, the Secretary-General of the United Nations shall communicate the reservation to the States which have previously deposited their instruments of ratification or accession and have not since denounced this Agreement. The reservation shall be deemed to be accepted if none of the said States has, within six months after such communication, expressed its opposition to acceptance of the reservation. Otherwise the reservation shall not be admitted, and, if the State which entered the reservation does not withdraw it the deposit of that State's instrument of ratification or accession shall be without effect… On the basis of this provision and in the absence of objections by other States parties to the Convention, the members of the European Economic Community formulated a reservation, not authorized by the Agreement, excluding the application of the Agreement to certain operations. See the reservations of States which, at the time, were members of the Community, in MTDSG, supra n 130, ch. XI.B.21. 560 But not only an agreement between certain parties; see supra para. 187. 561 In this sense, see D. W. Greig, supra n 189, pp 56–7; L. Sucharipa-Behrman, supra n 134, p 78. This is also the position of D. W. Bowett, who considered however that this possibility did not belong to the law of reservations, supra n 138, p 84; see also C. Redgwell, supra n 29, p 269. 562 See supra para. 32. Moreover, it cannot reasonably be claimed that the rules established in Art. 19, particularly in para. (c), constitute peremptory norms of general international law from which the parties cannot derogate though an agreement. 563 In this sense, see M. Coccia, supra n 12, p 26; F. Horn, supra n 10, pp 121, 131; K. Zemanek, supra n 43, pp 331–2; see also G. Gaja, supra n 139, pp 319–20. As rightly pointed out by L. Lijnzaad, it is not a question of acceptance stricto sensu, ‘[i]t is the problem of

inactive States whose laxity leads to the acceptance of reservations contrary to object and purpose’, supra n 23, p 56. 564 And yet, this is not evident. On this point, see the commentary on Art. 20, paras 30 ff. 565 See, ibid and supra paras 41–4; see also D. W. Greig, supra n 189, pp 57–8. Already during the ILC debates of 1962, Bartoš had noted that it was not even thinkable that a ‘nonvalid’ reservation, by the simple fact of the time limits imposed on the formulation of objections, ‘could no longer be challenged’, YILC, 1962, 654th meeting, 20 May 1962, vol. I, p 163, para. 29. 566 See, however, the ‘neutrality reservation’, formulated by Switzerland to the Covenant of the League of Nations, which was accepted as a member notwithstanding its reservations to the Covenant, see supra n 213. 567 Cf guidelines 2.3.1, 2.3.2, and 2.3.3 of the ILC Guidelines on reservations to treaties and their commentaries, in Report of the ILC on the work of its 53rd session (2001) (A/56/10), pp 184–91. This solution brings back, through the back door, the unanimity system, that certain reservation clauses establish expressly, see the examples in W. W. Bishop Jr, supra n 23, p 324. 568 See the guideline 2.1.8 (Procedure in case of manifestly [impermissible] reservations) of the Guidelines on reservations to treaties, adopted by the ILC in 2002. For the text and the commentary on this guideline, see the Report of the ILC on the work of its 54th session (2002), A/57/10, pp 112–14. Generally on this question, see R. Riquelme Cortado, supra n 97, pp 223– 30. 569 ‘Effect of collective acceptance of an impermissible reservation: A reservation that is prohibited by the treaty or which is incompatible with its object and purpose shall be deemed permissible if no contracting State or contracting organization objects to it after having been expressly informed thereof by the depositary at the request of a contracting State or a contracting organization’ (see the Report of the ILC on the work of its 62nd session (2010), A/65/10, pp 83–6). 570 See supra para. 163. * Professor, Université Paris Ouest, Nanterre-La Défense; Member and former President of the ILC, Associate of the Institute de Droit International, Special Rapporteur on reservations to treaties. The author would like to greatly thank Daniel Müller for assistance in the research that allowed the writing and then the updating of this commentary and Alina Miron for her assistance for the final polishing of this commentary.

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Volume I, Part II Conclusion and Entry into Force of Treaties, s.2 Reservations, Art.19 1986 Vienna Convention Alain Pellet From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Treaties, reservations and declarations

(p. 483) 1986 Vienna Convention Article 19 Formulation of reservations A State or an international organization may, when signing, ratifying, formally confirming, accepting, approving or acceding to a treaty, formulate a reservation unless: (a) the reservation is prohibited by the treaty; (b) the treaty provides that only specified reservations, which do not include the reservation in question, may be made; or (c) in cases not falling under subparagraphs (a) and (b), the reservation is incompatible with the object and purpose of the treaty.

Bibliography See the bibliography in the commentary on Article 19 of the 1969 Convention. Also, see further the commentaries that are more specially dedicated to the 1986 Convention: Gaja, G., ‘A “New” Vienna Convention on Treaties between States and International Organizations or between International Organizations: A Critical Commentary’, BYBIL, 1987, pp 253–69 Manin, Ph., ‘La Convention de Vienne sur le droit des traités entre Etats et organisations internationales ou entre organisations internationales’, AFDI, 1986, pp 454–3 Reuter, P., ‘Du droit international au droit de l'intégration’ in F. Capotorti et al (eds), Liber Amicorum Pierre Pescatore (Baden Baden: Nomos Verlagsgesellschaft, 1987), pp 545–64 1. Article 19 of the Vienna Convention 1986 reproduces purely and simply the text of the corresponding provision of 1969, adding merely ‘or an international organization’ after ‘A State’ in the introductory paragraph. The same goes for the rest of the provisions relating to reservations in that the 1986 Convention borrows from those of 1969 with minimal adaptations necessary to extend the legal regime of reservations that has been formulated for States to international organizations. At the same time, the largely customary character of this regime1 was both confirmed and reinforced. 2. Nevertheless, this simple transposition did not happen as a matter of course, and at the instigation of its Special Rapporteur, Paul Reuter, the ILC envisaged making non-negligible amendments to the rules contained in Articles 19 to 23 of the 1969 Convention, which would have limited the possibility for international organizations to formulate reservations, a direction which the eastern countries favoured up until the Vienna Convention, without succeeding in imposing it.2 Nevertheless, the last trace of ‘discrimination’ that was once envisaged for the expenses of international (p. 484) organizations, and which still featured in the final draft of the Commission of 1982,3 was abandoned at the Conference.4 3. In 1975,5 the Special Rapporteur presented his Fourth Report to the Commission, the first that contained substantial developments on reservations.6 In the general commentary of section 2 which is concerned with reservations, Paul Reuter made remarks of a general character that are worth citing at length since they clarify all subsequent discussions. 4. The Special Rapporteur started with the principle that the inclusion of provisions on reservations in the draft satisfied juridical logic, but that it would only have limited practical relevance. Articles 19 to 23 of the 1969 Convention dealing with reservations, are clearly one of the principal parts of the Convention, on account of both their technical preciseness and the great flexibility which they have introduced into the regime of multilateral conventions. It must therefore be admitted at the outset that analogous provisions prepared with the object of the present draft articles in mind are only of limited immediate practical interest. It has been said, and should be constantly repeated, that treaties concluded by international organizations are almost always bilateral treaties, for which reservations may come into play in theory but are of no interest in practice. The few multilateral treaties to which international organizations are parties are all treaties which fall under the provisions of article 20, paragraph 2; in other words, they only allow a very limited play to the reservations mechanism. Multilateral treaties open to a large number of signatories constitute the area in which reservations have a real practical function, and it is well- known that at present there are still very serious obstacles to the accession of international organizations to such treaties. To devote draft articles to reservations, therefore, meets a logical need which is only beginning to emerge in concrete form.7 5. Having made these remarks, he nevertheless did not consider that there existed any good reason to deny international organizations the right to formulate reservations under the same conditions as States since they were fully admitted to the treaty regime as ‘parties’, in order to allow them to pursue their specific interests. The Special Rapporteur did not conceal that from this principle there could result ‘all sorts of complications’, but he considered that this would connect to a more general problem, namely the risk of overlapping competences between the organization and its member States, which explains why ‘it cannot be accepted without

precautions that an organization should be party to a treaty at the same time as its own members’.8 (p. 485) 6. Consequently, Reuter presented, without any particular commentary, draft Articles 19 to 23, closely modelled on the corresponding provisions of the 1969 Vienna Convention, with minor editorial modifications.9 7. The discussion of these draft Articles at the 27th session10 revealed the difficulty of the problems they raised. The two main ones were summarized by the Special Rapporteur in his Fifth Report, presented in 1976 and entirely concerned with reservations: The first may be summed up as follows: is it necessary to provide, in certain cases and on certain points, for a regime fundamentally different from that of the Vienna Convention? The second, which goes beyond the scope of the problem of reservations but arises very clearly in that connexion, is the following: what provisions are needed to define clearly the respective spheres of application of the draft articles and the 1969 Vienna Convention, especially when a treaty originally designed to establish treaty relations between States and international organizations loses that character wholly or partially?11 8. On the first point, it suffices to recall that, in short, the Commission gave up on adopting a position of rigid principle. As it indicates in its final commentary to the draft Articles, it sought a balanced view denying organizations some of the facilities granted to States by the Vienna Convention and applying to organizations certain rules whose flexibility had been considered appropriate for States alone. However, it has maintained for international organizations the benefit of the general rules of consensuality wherever that presented no difficulties and seemed to be consistent with certain trends emerging in the modern world.12 9. At first, Paul Reuter, sensitive to certain categorical views expressed by some of the members of the Commission,13 substantially revised draft Articles 19 and 20 in a way that was less favourable to the freedom to make reservations:14 the new draft Article 19 reversed the presumption and stated that in principle all reservations are prohibited unless • it is expressly authorized by the treaty (para. 1(a)), • it is ‘expressly accepted by all the States and international organizations parties’ to the treaty (para. 1(b)),—or if international organizations participated in the treaty in the same way as States, under the conditions set out by the Vienna Convention 1969. 10. The Commission did not take a definitive stance in 197515 and the following year, the Special Rapporteur made new propositions, returning to the principle of ‘[f]reedom to formulate reservations combined with a number of exceptions for treaties between two or more international organizations, and the application to reservations of an express authorization regime with certain exceptions for treaties between States and international organizations’,16 in order to accommodate the difference in nature between States and organizations and to avoid the latter formulating reservations that would touch on the rights and obligations of States.17 (p. 486) 11. In essence, these propositions were endorsed by the Commission on the completion of very long debates during its 29th meeting.18 But the retained system was, as far as detail is concerned, profoundly transformed and complicated,19 since it resulted in a differentiation of the regime applicable to reservations to treaties concluded between several organizations—modelled on that in the Vienna Convention 1969—and the regime relating to reservations to treaties concluded between organizations and States, restrictive for the former and liberal for the latter;20 while the same dichotomy could be found in the context of objections21 and acceptance of reservations.22 12. After the adoption of this draft at first reading, the Special Rapporteur was led to reexamine it in light of observations of States and international organizations, which he did in his Tenth Report in 1981.23 Refusing to consider cases other than those considered in the draft Articles, as certain States invited him to do, ‘because such an investigation would not be in the spirit of the Vienna Convention, which sought to allow practice of some measure of freedom so that the general principles laid down in the Convention could be given concrete application’,24 Paul Reuter concluded that the draft Articles were to be maintained, in return for some editorial clarifications and simplifications. 13. Nevertheless, following renewed and difficult debates,25 the Commission returned for the most part to the provisions proposed originally by the Special Rapporteur,26 that tended to transpose the rules in draft Articles 19 to 23 of the 1969 Convention—in return for an addition to Article 19, paragraph (a)27 and subject to three substantive differences concerning Article 20.28 14. After renewed debates,29 and for reasons relating to the adoption of a draft Article 5 corresponding to Article 5 of the Vienna Convention 196930, the Commission re-established paragraph 3 of Article 20, but for the rest, confirmed in 1982 the draft of 1981.31 Once seized with the draft Articles, the General Assembly transmitted to the Conference via its Resolution 40/76 of 11 December 1985 ‘a list of draft articles of the basic proposal [these were the draft Articles of the ILC], for which substantive consideration is deemed necessary’. This list comprised Articles 19 (‘Formulation of reservations’) and 20 (‘Acceptance of and objection to reservations’), that had been the subject of various comments and observations by States and international organizations.32 (p. 487) 15. During the actual Conference, several amendments to these provisions were presented.33 At the end of the debates34—mainly revolving around the issue to what extent

international organizations could be assimilated to States, for the purpose of these provisions, to benefit from the same rights and to have the same obligations—the Conference adopted Articles that implemented an assimilation of organizations to States that was even more advanced35 and more closely modelled on the Articles of the Vienna Convention 1969 on the law of treaties than were the draft Articles of the Commission. 16. In particular as far as Article 19 is concerned, the Commission had proposed an addition to paragraph (a), which would state that a reservation was possible unless ‘the reservation is prohibited by the treaty or it is otherwise established that the negotiating States and negotiating organizations were agreed that the reservation is prohibited’.36 Curiously, the commentary gave no explanations for this modification. Nevertheless at the Vienna Conference, Paul Reuter explained that ‘the reason was that the treaties of international organizations were considered as having a somewhat delicate character. Because of their particular nature, it was felt desirable to avoid opening the door too widely to reservations’. Nevertheless he immediately added that ‘deletion of the two passages would do no harm. The rule they embodied went without saying, since there was nothing to prevent the parties to a treaty from agreeing among themselves subsequent to the adoption of a treaty that a particular reservation would be prohibited.’37 17. It was thus decided38 and, as with all the Articles on reservations, the text of Article 19 of the 1986 Convention was modelled on that of the 1969 Article. Under these circumstances one may question the utility of the long discussions dedicated to reservations at the work of the 1986 Convention—principally because of the determination of the Soviets and their friends to impose with all force an inferior legal status on international (p. 488) organizations in comparison to States, which is open to criticism in this particular case. This question can really be applied to the whole 1986 Convention: was it worth spending all the time and energy for adjustments that were overall very trivial, and that could just as well have been created through practice, and maybe better, than through a treaty that, 20 years after its adoption, is still not in force. *

ALAIN PELLET

Footnotes: 1 See infra the commentary on Art. 19 of the 1969 Convention, paras 55–69. 2 See in particular the amendments by the USSR and the German Democratic Republic to Arts 19 and 20 (UN Conference on the Law of Treaties between States and International Organizations or between International Organizations, Vienna, 18 February–21 March 1986, Official Records, vol. II, Documents of the Conference (A/CONF.129/16/Add.1) pp 69–70). 3 YILC, 1982, vol. II, Part Two, p 35. 4 The ILC had not intended to extend the procedure of tacit acceptance of reservations in Art. 20(5) to international organizations; the Conference of Vienna gave up on maintaining this discrimination. See infra the commentary on Art. 20 of the 1986 Convention, para. 5; see also Ph. Manin, ‘La Convention de Vienne sur le droit des traités entre Etats ou entre Etats et organisations internationales ou entre organisations internationales’, AFDI, 1986, p 466. The draft of the Commission also introduced a restriction to the capability of formulating reservations in para. (a) of Art. 19, but this was not ‘discriminatory’ and concerned States as much as international organizations—on this point see infra para. 16. 5 The developments that follow are largely inspired by the preliminary report of the author of this commentary, Special Rapporteur of the ILC on reservations to treaties (YILC, 1995, vol. II, Part One, pp 137–9, A/CN.4/470, paras 73–88). 6 YILC, 1975, vol. II, pp 36–8. 7 Ibid, p 36. 8 Ibid, pp 36, 37. 9 Ibid, pp 37–8. 10 YILC, 1975, vol. I, 1348th to 1350th meeting, pp 237–49. 11 YILC, 1976, vol. II, Part One, A/CN.4/290 and Add.1, p 139. 12 YILC, 1982, vol. II, Part Two, A/37/10, p 13, para. 43. 13 Especially Ushakov, YILC, 1975, vol. I, 1348th meeting, p 239. 14 Ibid, p 246. 15 YILC, 1975, vol. II, A/10010/Rev.1, pp 170 ff, para. 135. 16 Fifth Report, supra n 11, p 139. 17 See ibid, p 140. 18 YILC, 1977, vol. I, 1429th to 1435th, 1446th, 1448th, 1451st, and 1464th meetings, pp 70– 103; 165–70; 176–81; 193–6, 255, and 256. 19 Ibid, vol. II, Part Two, A/32/10, pp 96–8 and 105–16. 20 Arts 19 and 19bis. 21 Art. 19ter; see the commentary on Art. 20 of the 1986 Convention para. 3. 22 Arts 20 and 20bis; see ibid. 23 YILC, 1981, vol. II, Part One, A/CN.4/341 and Add.1, pp 56–64. 24 Ibid, p 59, para. 64. 25 YILC, 1981, vol. I, 1648th to 1652nd and 1652nd meetings, pp 28–55 and 263–6.

26 See supra para. 6. 27 See infra para. 16. 28 See infra the commentary on Art. 20 of the 1986 Convention, para. 5. 29 ACDI, 1982, vol. I, 1727th and 1748th meetings, pp 177 and 178, and p 315. 30 Art. 5 is drafted: ‘The present Convention applies to any treaty which is the constituent instrument of an international organization and to any treaty adopted within an international organization without prejudice to any relevant rules of the organization.’ 31 YILC, 1982, vol. II, Part Two, A/37/10, pp 32–7. 32 See the analytical compilation of comments and observations by States and principal international intergovernmental organizations on the final draft Articles on the law of treaties between States and international organizations or between international organizations (A/CONF.129/5, 8 October 1985), pp 124–31. 33 See infra para. 16 and the commentary on Art. 20, para. 5. 34 See UN Conference on the Law of Treaties between States and International Organizations or between International Organizations, Vienna, 18 February–21 March 1986, Official Documents, vol. I, Summary Records of the plenary meetings and of the meetings of the Committee of the Whole, 11th–14th plenary meetings, pp 95–119, and 27th meeting, p 186. 35 Especially as far as the time limit for the acceptance is concerned (Art. 20, para. 5); see supra para. 2. 36 YILC, 1982, vol. II, Part Two, A/37/10, p 35. 37 UN Conference on the Law of Treaties between States and International Organizations or between International Organizations, Official Documents, Vienna, 18 February–21 March 1986, vol. I, Summary Records of the plenary meetings and of the meetings of the Committee of the Whole, (A/CONF.129/16), 11th meeting of the Committee of the Whole, 27 February 1986, p 97 paras 31 and 32. The plural (‘passages’) used by the Expert Consultant can be explained by the fact that the draft of the Commission distinguished, in two separate paragraphs that were nevertheless drafted identically, the formulation of reservations by States, on the one hand, and by international organizations, on the other hand (YILC, 1982, vol. II, Part Two, A/37/10, p 34); this bizarre situation was the result of a distinction once made between the regime applicable to the reservations of States and the rules on reservations by international organizations (see infra para. 11) and was not justified by any serious reason (cf the commentary of the ILC: ‘It is only for the sake of clarity that the article retains separate paragraphs for States and international organizations; the rules it lays down are substantially the same in each case’ ibid, p 35); it was abandoned by the Conference ‘in an effort to lighten the text’ (Mr Al-Khasawhneh, President of the Drafting Committee, UN Conference on the Law of Treaties between States and International Organizations or between International Organizations, Official Documents, Vienna, 18 February–21 March 1986, vol. I, Summary Records of the plenary meetings and of the meetings of the Committee of the Whole (A/CONF.129/16), 5th plenary meeting, 18 March 1986, p 13, para. 54). The explanations given by Reuter do not really clarify the issue, even though it may be relatively minor, whether para. (a) of Art. 19 extends to reservations that are implicitly prohibited (see the commentary on Art. 19, paras 153 and 154): they establish at best that the parties can agree to prohibit a reservation after the conclusion of the treaty; but that is not the issue. 38 Without it being put to a vote (ibid, para. 56). * Professeur at the Université, Paris ouest, Nanterre-La Défense; Member and former President of the ILC, Special Rapporteur on the reservations to treaties.

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Volume I, Part II Conclusion and Entry into Force of Treaties, s.2 Reservations, Art.20 1969 Vienna Convention Daniel Müller From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Treaties, reservations and declarations — Customary international law — Travaux préparatoires — Treaties, entry into force

(p. 489) 1969 Vienna Convention Article 20 Acceptance of and objection to reservations 1. A reservation expressly authorized by a treaty does not require any subsequent acceptance by the other contracting States unless the treaty so provides. 2. When it appears from the limited number of the negotiating States and the object and purpose of a treaty that the application of the treaty in its entirety between all the parties is an essential condition of the consent of each one to be bound by the treaty, a reservation requires acceptance by all the parties. 3. When a treaty is a constituent instrument of an international organization and unless it otherwise provides, a reservation requires the acceptance of the competent organ of that organization. 4. In cases not falling under the preceding paragraphs and unless the treaty otherwise provides: (a) acceptance by another contracting State of a reservation constitutes the reserving State a party to the treaty in relation to that other State if or when the treaty is in force for those States; (b) an objection by another contracting State to a reservation does not preclude the entry into force of the treaty as between the objecting and reserving States unless a contrary intention is definitely expressed by the objecting State; (c) an act expressing a State's consent to be bound by the treaty and containing a reservation is effective as soon as at least one other contracting State has accepted the reservation. 5. For the purposes of paragraphs 2 and 4 and unless the treaty otherwise provides, a reservation is considered to have been accepted by a State if it shall have raised no objection to the reservation by the end of a period of twelve months after it was notified of the reservation or by the date on which it expressed its consent to be bound by the treaty, whichever is later. A. The travaux préparatoires and the customary value of Article 20 490 The work of the ILC 490 The question of consent in the reports of Brierly, Lauterpacht,and Fitzmaurice 491 Acceptance and objection in Waldock's Reports 492 The Vienna Conference 494 Customary status of Article 20 495 B. The team of acceptance and objection 496 Reservations and the consent principle 496 The notion of acceptance 498 Express acceptance 498 Silent and implicit acceptance 499 The notion of objection 507 Consent and the validity conditions of Article 19 511 C. Reservations expressly authorized by the Treaty 515 D. Collective or unanimous acceptance of reservations and the protection of the integrity of certain treaties 519 Reservations to treaties with ‘limited participation’ and unanimous acceptance 519 (p. 490) Reservations to constituent instruments of international organizations and the acceptance by the organization's competent organ 522 E. The effects of acceptances and objections on the entryinto force of the treaty 525 Effects of acceptances 525 The variable effects of objections 530

Bibliography See the general bibliography concerning reservations in the commentary to Article 19: Gaja, G., ‘Il regime della Convenzione di Vienna concernente le reserve inammissibili’ in Studi in onore di Vincenzo Starace (Naples: Ed. Scientifica, 2008), pp 349–61

Mendelson, Maurice H., ‘Reservations to the Constitution of International Organisations’, BYBIL, 1971, vol. 45, pp 137–71 Swaine, E. T., ‘Reserving’, Yale J Int'l L, 2006, vol. 31, pp 307–66 1. Article 20 of the Convention constitutes one of the key provisions of the ‘flexible’ reservations regime.1 Whereas Article 19 recalls the condition for the material validity of a reservation—underlining especially the conformity of a reservation with the object and purpose of the treaty2—Article 20, and in particular its paragraph 4, comes up with the new solution of bilateral admission recommended by the International Court in its 1951 Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide3 to the detriment of the traditional system of unanimity. In spite of this outstanding innovation, Article 20 is today considered to be part of customary international law, like most of the other provisions of the Vienna Convention concerning reservations.4

References

A. The travaux préparatoires and the customary value of Article 20 The work of the ILC5 2. Article 20 of the Convention has its origin in the First Report of Sir Humphrey Waldock who had managed to persuade the ILC, in 1962 only, to set up in its codification enterprise the ‘flexible’ system. He has suggested adopting ‘a different solution to this (p. 491) problem from any previously proposed either by the Commission or by the eminent Special Rapporteurs who have preceded him’.6

The question of consent in the reports of Brierly, Lauterpacht, and Fitzmaurice 3. All of the first Special Rapporteurs of the ILC have addressed the question of acceptances of reservations which forms the cornerstone of the traditional system of unanimity advocated by them. 4. In 1950, J. L. Brierly proposed in his First Report on the law of treaties draft Article 10, paragraph 3, underlining clearly the requirement of unanimous consent: The acceptance of a treaty subject to a reservation is ineffective unless or until every State or international organization whose consent is requisite to the effectiveness of that reservation has consented thereto.7 This solution, which is directly inspired by a contractual understanding of the treaty phenomena, was upheld and defended by the Special Rapporteur in 1951.8 It constituted nothing more than a faithful representation of the then admitted unanimity system.9 5. Sir Hersch Lauterpacht, the second Special Rapporteur on the law of treaties, also chose to maintain the traditional system. Consequently, the consent of all States parties was the main issue concerning the reservations regime.10 His de lege ferenda proposals (alternative drafts)11 contained, however, a more flexible approach and substituted a two-third majority consent to the less flexible, traditional, unanimous consent. These proposals were accompanied by very detailed procedural rules concerning acceptance which constituted the key of the system. All alternative drafts provided for silence—or the absence of objection to a reservation—being equivalent to acceptance.12 Brierly had already suggested that ‘the necessary consents may be implied as well as express’;13 a proposition which gave rise to an important discussion between the ILC members concerned about the extent of such a possible implicit, let alone silent, consent, its implications, and practical implementation.14 6. In 1956, G. G. Fitzmaurice, while still upholding the traditional unanimity principle, recommended also the possibility of an acquiescence sub silentio, but limited the application of such a silent acceptance to multilateral treaties only.15 In the case of bilateral treaties or treaties with limited participation, only express and unanimous acceptance of the other State or States parties could produce the desired effect.16 (p. 492) 7. It is noteworthy that the first ILC Rapporteurs concentrated their work and drafts on the question of acceptances, whereas objections and their effects were neglected. Being the key element in the traditional unanimity system, acceptances needed to be put into a legal framework, especially with regard to timing. Indeed, under the unanimity system, there was a critical need to clarify as speedily as possible the status of a State having made a reservation with regard to the treaty. Only unanimous acceptance was able to clarify definitively if the reserving State became a party to the treaty or not, while the solution is sensibly different under the ‘flexible’ system.17 Consequently, the supporters of the traditional system did not simply have to consider the question of objections specifically; being nothing more than the refusal of acceptance, an objection prevented the reserving State from becoming a party to the treaty, constituting an undefeatable obstacle to reach unanimity.

Acceptance and objection in Waldock's Reports 8. In his First Report, constituting the turning point of the ILC's work on reservations,18 Sir Humphrey Waldock proposed two draft Articles covering the conditions and the effects of acceptances and of objections respectively. These draft Articles 18 and 19—the cornerstone of the ‘flexible’ system proposed by the Special Rapporteur19—had been welcomed by the majority of the ILC members during the discussion.20 Several members suggested nevertheless simplifying these draft provisions which were very detailed and complex.21 22

9. The Drafting Committee, having been seized of the question,22 changed the text extensively without changing the underlying principles. The new draft Article 18, titled ‘Acceptance of and objection to reservations’,23 was devoted entirely to the procedural aspects of both acceptances and objections, whereas the new draft Article 18bis, titled ‘The validity of reservations’,24 provided for the conditions under which a reservation produces its effects and the reserving State becomes a party to the treaty. This new provision was visibly more inspired by the subjective inter-American system than by the more objective approach recommended by the International Court of Justice (ICJ) in its 1951 Advisory Opinion: the validity of the reservation depended exclusively on the acceptance of a State party and was opposable to the accepting State only.25 After an extensive debate, the Drafting Committee finally changed the title of draft Article 18bis into the more neutral formula of ‘Effects of reservations’. Even if this change clearly appeased the oppositions,26 it was very unfortunate. First of all, the deletion of any reference to the (p. 493) ‘validity’ of the reservation rendered the relationship between draft Article 17 (present Art. 19) and draft Article 18bis (present Art. 20) very ambiguous and constituted the main basis of the doctrinal dispute between the permissibility school and the opposability school.27 Nevertheless, the new draft constituted an unmistakable plea for a more objective approach to the question of validity. Moreover, draft Article 18bis did not concern the effects of the reservation, as suggested in its new title, but of an acceptance of and an objection to reservations. The inappropriateness of this ‘cosmetic’ change becomes fully apparent by the fact that draft Article 18ter as proposed by the Drafting Committee was, according to its title, already devoted to the ‘Legal effect of reservations’;28 for the sake of ‘consistency’, this was then changed to ‘The application of reservations’.29 10. In 1965, the Special Rapporteur reconsidered draft Articles 19 [18] and 20 [18bis] adopted in 1962 in order to take account of the observations submitted by States.30 Sir Humphrey paid particular attention to the criticism of the Danish government31 concerning the overall structure of the 1962 draft which was considered to be unnecessarily complicated. In addition, the draft seemed to imply that a sub silentio acceptance might also possibly apply to reservations prohibited by the treaty. In order to take account of these problems, all procedural aspects of the formulation of reservations, acceptances, and objections were put together in a new draft Article 20, including acceptance by silence (para. 4) subsequently taken over into the present Article 20 (para. 5)32 and limited in its scope to classical multilateral treaties only.33 The more fundamental change consisted in the merge of 1962 draft Articles 18 (Formulation of reservations) and 20 (Effect of reservations) for the sake of clarity. Without modifying notably the legal framework, the new draft Articles 18 and 19 distinguished between the case of a treaty expressly or implicitly prohibiting reservations, on the one hand, and the case where a treaty is silent on the question of reservations, on the other hand. This approach had the advantage of rendering the relationship between the validity of the reservation and the system of acceptance and objection more coherent. It is worth noting that the Special Rapporteur, when proposing these modifications, deleted the link between objections and the question of compatibility of the reservation with the object and purpose of the treaty.34 11. Even if the Drafting Committee understood and agreed to many of the substantial modifications proposed by the Special Rapporteur, it decided to keep the general structure of the 1962 draft.35 It nevertheless introduced the new formula of paragraph 4(b) recognizing the possibility of entertaining a treaty relationship with the reserving State notwithstanding an objection. The absence of a conventional link consequently became a mere presumption which could be refuted by the author of the objection.36 As a result, (p. 494) the final 1965 draft37 combined the general system of acceptance and objection (para. 4) and the special cases falling outside the application of this general regime (paras 1 to 3). Paragraph 5 established the rule of silent acceptance, whereas the whole set of procedural question was treated within draft Article 22.

The Vienna Conference38 12. Beside two modifications to paragraphs 1 and 4(b), only minor drafting modifications were adopted at the Vienna Conference. The overall structure of Article 17 of the ILC draft remained unchanged. 13. Concerning paragraph 1, several delegations expressed doubts as to the inclusion of implicitly authorized reservations within this provision, which suggested that no further acceptance of such a reservation was required.39 The Swiss representative underlined that this provision might give rise to differences of opinion on whether a reservation was impliedly authorized or not. The decision on that point would rest with each State party to the convention and could easily lead to considerable legal uncertainty.40 Amendments deleting this hypothesis from the draft were consequently proposed.41 Other delegations supported the amendment which, in their opinion, remedied a contradiction between draft Article 16 [19] and paragraph 1 of draft Article 17 [20].42 The amendment was adopted with a large majority.43 14. A quite important modification to paragraph 4(b) originates in amendments proposed by Czechoslovakia,44 Syria,45 and the USSR46 aiming at the inversion of the presumption in favour of the entry into force of a treaty notwithstanding an objection. The Commission, which had introduced this presumption late into its draft,47 had expressed it negatively: the entry into force of the treaty was precluded between the reserving State and the State having made an objection ‘unless a contrary intention is expressed by the objecting State’. Even if at first sight the inversion of the presumption might (p. 495) appear insignificant,48 it has outstanding consequences on the very logic of the acceptance/objection mechanism.49 This might be the 50

reason why these amendments were rejected in 1968.50 During the second session of the Conference, the USSR introduced once again an amendment on the same issue accompanied by a long statement of arguments in its favour;51 it insisted on the sovereign right of every State to make a reservation and found some support in the 1951 ICJ Advisory Opinion.52 This new amendment was finally adopted53 and the presumption in Article 20 was modified in the sense that an objection does not, in principle, preclude the entry into force of the treaty between the reserving and the objecting State, unless a contrary intention has been ‘definitely’ (‘nettement’) expressed by the latter.54

Customary status of Article 20 15. Article 20 of the Vienna Convention, as well as most of the provisions concerning reservations,55 were arguably more the product of progressive development than the result of codification. A clear distinction between customary rules and rules resulting from progressive development is not, in particular with Article 20, easy given the fact that this provision contains rules stemming from the traditional system (paras 2 and 3) but also rules reflecting the ‘new’ ‘flexible’ system (para. 4).56 Concerning the rule of tacit acceptance, although it had already been applied in State practice before the Vienna Conference,57 some uncertainties subsisted up to its definitive consecration in paragraph 5 of Article 20.58 16. Some of the provisions of Article 20 have nevertheless acquired customary value by their crystallization in the Vienna Convention and their subsequent application by States and international organizations.59 Some others, however, seem to be in open contradiction with State practice; this casts some doubt as to their legal value. The acquiescence to a reservation as a result of the silence maintained by a State during a determined (p. 496) lapse of time, as it is provided for under paragraph 5, thus does not seem to constitute a customary rule of international law.60 This is nevertheless the usual problem of codification conventions trying to determine clear-cut procedural requirements, and especially temporal conditions, which have to be established, often and maybe unavoidably, in an arbitrary manner.61 Much more worrying is the tendency, which has been described by Professor Gaja, leading towards a lax application of the Vienna regime, especially by considering a reserving State as a party without waiting for the—normally necessary—acceptance of the reservation.62 This questions a key element of the Vienna regime which constitutes a combination of consent—not necessarily unanimous—and permissibility forming a single whole.63

References

B. The team of acceptance and objection 17. Under the system of the Vienna Convention, the right of a State to formulate a reservation is not only subject to the conditions of permissibility (Art. 19) and form (Art. 23), but is confronted with the right of all other States to react to this unilateral proposition. Article 20 establishes the legal framework for these reactions of other States, ie acceptances—the positive reaction—and objections—the negative reaction rejecting the reservation—and provides for their effects on the entry into force of the treaty. Article 20 fails to specify its concrete relationship with Article 19 and the permissibility criteria of a reservation. Contrary to the clear position of Article 21, paragraph 1,64 no cross-reference to Article 19 and the conditions established therein, or even to the formal conditions for the formulation of reservations, can be found in Article 20.

Reservations and the consent principle 18. The ICJ emphasized in its 1951 Advisory Opinion in the Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide case: ‘[i]t is well established that in its treaty relations a State cannot be bound without its consent, and that consequently no reservation can be effective against any State without its agreement thereto’.65 This widely recognized principle of consent discloses the very nature of a (p. 497) reservation: it is, as such, no more than a unilateral proposition put forward by its author. The latter may only ‘formulate’ a reservation. In order to produce any legal effects, the reservation still has to be accepted by other States or international organizations.66 19. The ‘flexible’ approach of the Vienna Convention does not depart from this elementary principle. Consent of the other parties to the treaty is as necessary as under the traditional unanimity system. Only the scope and the legal effect of consent is different: whereas under the traditional system, only the unanimous acceptance of all States parties could trigger the reservation to produce its legal effects and its author to become a party to the treaty, the Vienna regime considers the reserving State as being within the privileged group of parties at the very moment one State party has given its consent to the reservation (para. 4(c)). The reservation, however, would produce its legal effects only vis-à-vis the parties having expressed their acceptance. Acceptance consequently has a double function within the ‘flexible’ system: on the one hand, it determines the date of entry into force of the treaty with regard to the reserving State67 and, on the other hand, it allows identification of the party or the parties vis-à-vis which the reservation is ‘established’ and will produce its effects in accordance with Article 21.68 20. The Vienna regime is thus far from shattering the consent principle, as has been suggested by an eminent scholar;69 quite to the contrary, acceptance is still a necessary element in order for the reservation to produce its desired effects.70 Of course, in practice, there is little doubt that a reservation will be accepted by at least one party, especially because of the silent or implicit acceptance principle. This does not, however, mean that the

reserving State becomes automatically and unconditionally a party to the treaty, a position advocated by socialist States during the travaux of the Convention.71 21. The negative implication of the consent principle has been well emphasized by Professor Tomuschat: ‘[n]o State can be bound by contractual obligations it does not consider suitable’.72 The right of every State to formulate a reservation is thus opposed and limited by the right of any other State to object. (p. 498) 22. The consent necessary to ‘establish’73 a reservation formulated in accordance with Articles 1974 and 23 may consequently be expressed by the parties through their express, silent, or implicit acceptance, or formally refused through their objections.

The notion of acceptance 23. Neither Article 20, nor any other provision of the Vienna Convention, gives a valuable definition of ‘acceptance’. It is qualified merely by its effects on the entry into force of the treaty (Art. 20, para. 4(a) and (c)) and the legal regime established by the duo reservationacceptance between the reserving State and the accepting State (Art. 21, para. 1). Paragraph 1 of Article 23 and paragraph 5 of Article 20 clarify only that acceptance may be made expressly, tacitly, or implicitly.

Express acceptance 24. Express acceptance has long been considered to be the only form to express consent to a reservation. Silence by a contracting State was not interpreted to constitute consent but, to the contrary, refusal.75 This practice, which was very restrictive and the source of uncertainties concerning the status of the author of the reservation, was finally abandoned. It seems to be unworkable in an international community comprising, inter alia, more than 190 States.76 25. Express acceptance has nevertheless not disappeared, at least in the text of the Vienna Convention. In accordance with Article 23, paragraph 1, express acceptance has to be formulated in writing and to be communicated ‘to the contracting States and other States entitled to become parties to the treaty’. The great formalism imposed on the formulation of express acceptances, compared to other forms of acceptances, explains their rarity in practice.77 In addition, the presumption of Article 20, paragraph 5 favours the exceptional nature of express acceptance within the Vienna regime.78

References (p. 499) 26. Nevertheless, express consent is not entirely obsolete. Its most obvious application can be found in the case of paragraph 1 of Article 20 concerning ‘[a] reservation expressly authorized by a treaty’ which does not need, in the terms of that provision, ‘any subsequent acceptance by the other contracting States unless the treaty so provides’. The position of Sir Humphrey with regard to that provision, not always without ambiguity,79 had been reflected by the Special Rapporteur in one of his early drafts: Consent to a reservation shall…be held to have been given expressly where the treaty itself authorized the making of a particular reservation or category of reservations and the reservation falls within the terms of the authorization.80 The ILC commentary to draft Article 17 finally adopted in 1966 is straightforward on the issue: Paragraph 1 of this article covers cases where a reservation is expressly or impliedly authorized by the treaty; in other words, where the consent of the other contracting States has been given in the treaty.81 27. Even if the principle embodied in Article 20, paragraph 1 is clear, its application is often difficult especially because of the salient question whether or not a given reservation falls within the terms of the prior (express) acceptance given in the treaty.82

Silent and implicit acceptance 28. Under paragraph 5 of Article 20, a State which has not made an objection to a given reservation will be considered, under certain circumstances, to have accepted that reservation. In 1951, the Court took note of the ‘very great allowance made for tacit assent to reservations’ as manifestation of a new, more flexible, international practice concerning modern multilateral treaties, eg the Genocide Convention.83 29. Although the opinions were divided in the ILC concerning draft Article 10 proposed by J. L. Brierly in 1950,84 which endorsed, in a limited manner, the solution recognized by the Court,85 H. Lauterpacht and G. G. Fitzmaurice maintained the silent acceptance principle.86 Silent or implicit consent is indeed not an unknown principle to the traditional system supported by these Special Rapporteurs. Quite to the contrary, the unanimity principle called in favour of silent consent in order to avoid insecurity and uncertainty of the legal status of the reserving State with regard to the treaty. Prolonged (p. 500) silence of a party to the treaty would otherwise constitute, under the unanimity rule, an unsettling factor jamming for an undetermined time the status of the reservation. 30. Within the flexible system finally adopted, the very principle of silent or implicit acceptance is not without merit either. Sir Humphrey, having accepted the silent acceptance principle in his draft Articles,87 noticed: It is…true that, under the ‘flexible’ system now proposed, the acceptance or rejection

by a particular State of a reservation made by another primarily concerns their relations with each other, so that there may not be the same urgency to determine the status of a reservation as under the system of unanimous consent. Nevertheless, it seems very undesirable that a State, by refraining from making any comment upon a reservation, should be enabled more or less indefinitely to maintain an equivocal attitude as to the relations between itself and the reserving State under a treaty of universal concern.88 The rule was finally adopted by the ILC without great difficulties and discussion. The Vienna Conference followed the ILC on this point and only added the words ‘unless the treaty otherwise provides’ as proposed by the United States.89 31. The terms of paragraph 5 limit its application to ‘the purposes of paragraphs 2 and 4’. The application of the silent acceptance principle is consequently excluded in the case of reservations authorized by the treaty (para. 1); in any event no new acceptance is required in this case.90 It is also excluded concerning reservations to constituent instruments of international organizations (para. 3); thus, the acceptance of the competent organ of the organization cannot be presumed. This important point has now been made clear explicitly by draft guideline 2.8.9 (Modalities of the acceptance of a reservation to a constituent instrument): ‘[s]ubject to the rules of the organization, the acceptance by the competent organ of the organization shall not be tacit…’.91 32. Some questions are nevertheless left unanswered. Can acceptance be presumed under paragraph 5 in all cases provided for in paragraphs 2 (treaties with ‘limited participation’) and 4 (for all treaties not covered under paragraphs 1 to 3)? The very terms of paragraph 5 seem to suggest the contrary in specifying ‘unless the treaty otherwise provides’. The explanations provided by the United States to the corresponding amendment show, however, that this addition was aimed at filling a different gap: ‘the Commission's text seems to prevent the negotiating States from providing in the treaty itself for a period shorter or longer than twelve months’.92 The travaux préparatoires thus suggest that not the silent acceptance principle, but only the relevant time frame should be at the free disposal of States. One should not forget, however, that the Vienna rules as such are only ‘residual’ in character and can be modulated by States as they please,93 including with regard to the silent acceptance principle.94

References (p. 501) 33. Article 20, paragraph 5 distinguishes between two forms of presumed consent of a State: silent acceptance properly so called, and implied acceptance. 34. Concerning the latter, ‘a reservation is considered to have been accepted by a State’ which has not raised an objection to the reservation ‘by the date on which it expressed its consent to be bound by the treaty’, in the case where this date falls after the expiration of the 12-month period after notification of the reservation. This hypothesis addresses the question of States, which, at the end of the 12-month period provided for in this provision, are still not ‘contracting States’ in the sense of Article 2(f) of the Vienna Convention. By the expression of its consent to be bound by the treaty, a State consents or is considered to have consented to all reservations formulated by other States, except if it makes an objection at the very same moment or has previously95 objected to the reservation. 35. The distinction between contracting States and States which have not yet acquired this legal status with regard to a given treaty had already found some support in the drafts of J. L. Brierly, but was not upheld later either by H. Lauterpacht or by G. G. Fitzmaurice. Equally, the draft Articles adopted in first reading in 1962 did not contain a similar distinction, notwithstanding the proposal made by the Special Rapporteur in his draft Article 18.96 Finally, the Commission reinserted the discrimination between the two categories of States in second reading in order to give account to the concerns of the Australian government which was concerned about the practical difficulties of a strict and indiscriminate application of the silent acceptance principle.97 36. Nevertheless, this solution does not by itself create any inequalities between contracting States and not-yet contracting States. Even before becoming contracting States proper, all ‘States entitled to become parties to the treaty’ are to be notified of any reservation in accordance with Article 23, paragraph 1. This provision has been expressly confirmed by the ILC in guideline 2.1.5 of its Guide to practice concerning reservations to treaties.98 Virtually every State becoming a party to a treaty has thus been notified of any reservation formulated to the treaty and has the opportunity, at least at the moment it expresses its consent to be bound by the treaty, to consent to these reservations or to object to them, in full knowledge and without any surprise. Furthermore, nothing in the Vienna Convention prevents a State entitled to become a party to the treaty to accept expressly or to object to a reservation before it becomes a contracting State, even if, logically, such an ‘objection’ would not produce legal effects before its author expresses its consent to be bound.99 The outcome is that States ‘entitled to become parties to the treaty’ are not discriminated at all vis-à-vis contracting States proper and dispose of at least the same time period as contracting States to consider the reservation and to react to it.100 37. In terms of legal policy, the distinction has the obvious advantage of stabilizing the legal status of the reserving State. It would enormously compromise the security of legal relations if every State ratifying or acceding to a treaty disposed of a 12-month period, starting at the date of it becoming a contracting State, to consider any reservation and to consent or object to it. Such an approach would put the legal relationship between the (p. 502) author of the reservation and every new contracting State from time to time into limbo. The ratio of the silent acceptance principle is precisely to avoid such an unsatisfactory solution and to

determine in a reasonable time frame the legal status of a reserving State. 38. The problem is somehow different with regard to restricted treaties under paragraph 2 of Article 20 to which, according to its terms, paragraph 5 is equally applicable, or to any other treaty which conditions the establishment of a reservation on unanimous acceptance. A State cannot accede to such a treaty, governed by the unanimity rule, without accepting reservations which have already been unanimously accepted by the contracting States. Objection is no longer open as it would eject the reserving State outside the circle of contracting States.101 Draft guideline 2.8.2 (Unanimous acceptance of reservations) makes clear: In the event of a reservation requiring unanimous acceptance by some or all States or international organizations which are parties or entitled to become parties to the treaty, such an acceptance once obtained is final.102 39. In all these cases, the presumed consent does not arise out of the silence of the State, but out of the acceptance of the treaty in full knowledge of reservations formulated previously. The acceptance is implied, implicit, into the active conduct of the State.103 It is more a case of acquiescence, a principle firmly established in international law and the Vienna Convention. It is probably for this reason also that implicit acceptance did not raise great difficulties during the drafting of the Vienna Convention, contrary to tacit acceptance. 40. Tacit acceptance—the other case provided for under Article 20, paragraph 5—addresses the situation of contracting States only. A reservation ‘is considered to have been accepted by a [contracting] State if it shall have raised no objection to the reservation by the end of a period of twelve months after it was notified of the reservation’. Contrary to implicit acceptance, consent is not presumed out of an act of the State, but out of the absence of reaction. The underlying legal basis of this second rule is uncertain. It seems to be clear that it is not silence as such, but the absence of a reaction—or the absence of a specific act—with regard to the reservation which triggers the presumption of acceptance.104 This point of view, which presupposes that a State is obliged to react to a reservation in order to prevent it from producing legal effects, is nevertheless questionable, at least with regard to invalid reservations.105 41. The objective of Article 20, paragraph 5 is also to determine the time frame within which contracting States should react to a reservation if they so wish. The determination of the time period has not, however, been easy. F. Horn considered with regard to this question: (p. 503) A too long period could not be admitted, because this would result in a protracted period of uncertainty as to the legal relations between the reserving state and the confronted parties. Nor should the period be too short. That again would not leave enough time for the confronted states to undertake the necessary analysis of the possible effects a reservation may have for them.106 Within the ILC, the positions concerning the time limit were divided. H. Lauterpacht and G. G. Fitzmaurice considered that a time period of three months would be sufficient.107 Sir Humphrey observed, in treaty practice, examples of time limits of 90 days and six months,108 but finally proposed the 12-month time limit in order to align himself with the 1959 Resolution of the Inter-American Council of Jurists.109 He justified his choice suggesting: there are, it is thought, good reasons for proposing the adoption of the longer period. First, it is one thing to agree upon a short period for the purposes of a particular treaty whose contents are known, and a somewhat different thing to agree upon it as a general rule applicable to every treaty which does not lay down a rule on the point. States may, therefore, find it easier to accept a general time limit for voicing objections, if a longer period is proposed.110 The choice was consequently not entirely arbitrary. Nevertheless, it strays away, for very understandable reasons, from the then existing practice, which could hardly be characterized as homogenous. It is noteworthy that two delegations to the Vienna Conference proposed shorter time limits of six months,111 but their amendments were not accepted. 42. The 12-month time limit appears to be the most acceptable.112 It leaves a reasonable period of time to consider a reservation and to decide on a reaction. Furthermore, if the parties to a treaty so desire, they are free to modify the time limit provided for under Article 20, paragraph 5 in the treaty itself.113 43. The practice of the Secretary-General as depositary with regard to the time limit within which States may formulate objections is more complex.114 When the treaty is silent on the question of reservations, the Secretary-General traditionally considered that a reserving State becomes a contracting State if no objection has been filed within 90 days.115 Convinced that this practice delayed the entry into force of the treaty and their registration, the SecretaryGeneral abandoned it and considered from that time on that a State having formulated a reservation becomes a contracting State on the date the instrument of ratification or accession becomes effective.116 The Secretary-General justified his position by the fact that it was virtually impossible to meet the conditions put by Article 20, paragraph 4(b) and (c), concerning the non-entry into force of the treaty with regard (p. 504) to the reserving State. It is thus less the position of the Secretary-General with regard to the paragraph 5 presumption which is to blame but his approach to the provisions of paragraph 4(b) and (c). Recently, he expressed some support for the 12-month time limit, which is now applied to the necessarily unanimous acceptance of late reservations.117 It is noteworthy that the Secretary-General regards the presumption of paragraph 5 as a deadline rule: even if he accepts late objections, he does not notify them as objections, but under the heading ‘communication’.118

44. One of the most important points made clear by Article 20, paragraph 5 is that the acceptance of a State is presumed if it has not made an objection to the reservation in the prescribed time limit. Consequently, this provision generates a dialectical relation between both reactions: an acceptance is the opposite of an objection and vice versa. The French representative at the 1968 Conference confirmed this very idea: acceptance and objection were the obverse and reverse sides of the same idea. A State which accepted a reservation thereby surrendered the right to object to it; a State which raised an objection thereby expressed its refusal to accept a reservation.119 The Special Rapporteur on reservations to treaties consequently proposed to start by defining objections given the fact that ‘it follows from Article 20, paragraph 5, of the 1969 Vienna Convention on the Law of Treaties that in most cases, acceptance of a reservation results from the absence of an objection’.120 The proposed draft guideline 2.8, which was finally adopted as such, reflects faithfully this idea: The acceptance of a reservation arises from the absence of objections to the reservation formulated by a State or international organization on the part of the contracting State or contracting international organization.121 45. Even if the Vienna Convention provides only for acceptance and objection as reactions to reservations, in practice, reactions of States are much diversified, and it is often quite difficult to determine with certainty if a given reaction constitutes an acceptance or an objection in the sense of the Vienna Convention.122 The Court of Arbitration in the French-UK Continental Shelf case has clearly admitted the possibility given to States to formulate ‘a mere comment’ or to adopt ‘a mere reserving of position’ with regard to a reservation.123 Such reactions are indeed quite often used.124 States especially make commentaries in order to express their understanding and their interpretation—often quite restrictive—of a reservation,125 or express their ‘consent’ subject (p. 505) to conditions.126 These reactions, unknown to the Vienna Convention, are not only often used in practice, but favour also the ‘reservations dialogue’127 between the author of the reservation and the other contracting States, especially in order to clarify the sense—or even the validity—of a reservation.128

References 46. The legal regime of the communications and declarations forming part of this ‘intermediary’ procedure of ‘reservations dialogue’ is uncertain. It is far from being evident that those reactions can ‘lead to more clarity, in particular on the practical consequences of reservations to treaties which do not contain a reservation (p. 506) clause’.129 From a formal point of view, it is doubtful if this type of declaration might produce the effects contemplated by its author; the latter will, notwithstanding its reaction to the reservation, be considered to have consented to the reservation at the expiration of the time limit provided for under Article 20, paragraph 5. Indeed, given the definition of the term ‘objection’ adopted by the ILC,130 these intermediary declarations cannot be regarded as ‘objections’ in the sense of Article 20, paragraph 5. States and international organizations that choose to make this kind of declaration—very often with the intention of convincing the reserving State to withdraw its reservation—take the ‘risk’ of being considered to have accepted the reservation, not having expressed a proper objection. 47. Such a formal approach to the qualification problem seems to be misleading. Indeed, the law of treaties as codified by the 1969 and the 1986 Vienna Conventions puts much emphasis on the intention of the State, much more than on the form this intention has been put into. It is necessary to analyse the intention of the State having made such an intermediary declaration in order to determine the legal effects on a case-by-case basis taking properly into account the underlying consent principle. In any case, a strict application of the presumption encompassed in paragraph 5 of Article 20 does not seem to be suitable: acceptance, even tacit, is much more than the mere absence of any objection within a determined period. A strict application of this provision will, however, produce exactly this result: a State having made a critical declaration in relation to a reservation, which does not amount to an objection, will be considered to have accepted the reservation—just like any other State that remained silent. In order to avoid the presumption producing effects contrary to the initial will of the State, some States, in their declarations and communications, reserved their right to react again later with regard to the reservation, even after the expiration of the 12-month period.131 Given the fact that, in most cases, the underlying reservation is considered non-valid, the risk for the State engaging (p. 507) the reservations dialogue is nevertheless insignificant: a non-valid reservation is not open to acceptance in any event, and the presumption of Article 20, paragraph 5 has no bearing whatsoever.132

References

The notion of objection 48. The Vienna Conventions do not give a formal definition of the term ‘objection’. They determine nevertheless some elements, conditions, and effects of an ‘objection’ in Articles 20, paragraph 4(b) (author of an objection) and paragraph 5 (time limit for making an objection), 21, paragraph 3 (concerning, partly, the content and effect of an objection), and 23, paragraphs 1 and 3 (concerning the formal requirements of an objection). Even if objections are a quite rare phenomenon,133 the way they have been dealt with in the Convention is unexpected, especially because of the importance the Convention gives to objections and the effects they are called to produce on the treaty. In addition, under the logic of the presumption

of Article 20, paragraph 5, it is the objection which determines, at least to some extent, its counterpart, ie the acceptance.134 49. The ILC, in the context of its work on the Guide of Practice, took up the not very easy task of proposing a precise and workable definition of the term ‘objection’. The Special Rapporteur presented a first definition in his Eighth Report.135 Given the very important criticism expressed during the debate in the Commission, an amended definition was proposed in the Ninth Report.136 In 2005, the Commission finally adopted in first reading the definition of objection in draft guideline 2.6.1: ‘Objection’ means a unilateral statement, however phrased or named, made by a State or an international organization in response to a reservation to a treaty formulated by another State or international organization, whereby the former State or organization purports to exclude or to modify the legal effects of the reservation, or to exclude the application of the treaty as a whole, in relations with the reserving State or organization.137 (p. 508) 50. This ‘generic’138 definition has the clear advantage of concentrating on the intention of the author of an objection rather than to take account of the text only. The Special Rapporteur emphasized that: the law of treaties, as enshrined in the 1969 Vienna Convention, is wholly permeated by the notion that the intentions of States take precedence over the terminology which they use to express them.…The same should apply to objections: here again, it is the intention which counts.139 The Court of Arbitration in the Anglo-French Continental Shelf case equally paid the utmost attention to the intention of the author of a unilateral declaration with regard to a reservation. In the view of the court, this intention constitutes the crucial element in the qualification process: Whether any such reaction amounts to a mere comment, a mere reserving of position, a rejection merely of the particular reservation or a wholesale rejection of any mutual relations with the reserving State under the treaty consequently depends on the intention of the State concerned.140 Nevertheless, this cannot mean that the text and its formulation are without incidence on the qualification of such a declaration; they constitute one of the elements to be taken into account in determining the ruling intention.141

References 51. What kind of intention does qualify a unilateral declaration as an objection? The ILC definition responds to this question by underlining that the author of an objection ‘purports to exclude or to modify the legal effects of the reservation, or to exclude the application of the treaty as a whole, in relations with the reserving State or organization’. The intention is thus governed essentially by the purported effects of the objection, ie its purpose. The first draft definition of objection proposed by the Special Rapporteur142 focused only on the effects of an objection on the treaty as provided for under Article 21, paragraph 3 and Article 20, paragraph 4(b) of the Vienna Conventions, and gave rise to important discussions within the Commission.143 In practice, quite often States making objections do not purport to exclude the application of the provision to which the reservation related, or the application of the treaty as a whole. They are much more interested in keeping the provision concerned by the reservation applicable in their relations with the reserving State, a purported effect of an objection (also referred to under the term ‘super-maximum effect’) not provided for under the Convention.144 This is equally true regarding the recent practice of objections purporting to exclude the conventional relationships between the author of the objection and the author of the reservation in part only, but nevertheless well beyond what it provided for as the ‘normal’ effect of an objection.145 It is furthermore apparent that, in some special circumstances, the effects of an objection might fall short of those of an acceptance. (p. 509) 52. The solution finally adopted by the ILC avoids taking a position with regard to the salient question of the legal effects of objections. It is more neutral in requiring simply that the State or the international organization purports to exclude the application of the treaty as a whole—which is quite rare—or to exclude or to modify the legal effects of the reservation, whatever the concrete effect of this combination on the treaty relationship might be. As the Special Rapporteur put it: ‘[t]he refusal to accept a reservation is precisely the purpose of an objection in the full sense of the word in its ordinary meaning’.146 53. This intention to prevent or modify the purported effects of the reservation, or to prevent the establishment of a conventional relationship between the reserving and the objecting States as such, permits disqualification of quite a number of reactions, increasingly frequent, which only criticize the reservation.147 Without being banned completely,148 those reactions consequently do not produce the legal effects of an objection provided for under Article 21, paragraph 3 of the Convention. This might be understandable with regard to declarations and reactions aimed at a restrictive interpretation of the reservation without clearly opposing it;149 this kind of reaction reports merely to the interpretation of the provisions of the treaty or of the reservation.150 Declarations by which the authors reserve the right to react later to the reservation, because they find impossible to appreciate in the abstract the value, scope, and validity of the reservation, are more difficult to qualify. In the absence of a formal and clear position aimed at rejection of the reservation, this kind of reaction might not be considered an objection in the sense of the ILC definition, even if their authors do not seem to accept the 151

reservation, at least provisionally.151 54. The situation is even more difficult with regard to quasi objections or conditional acceptances/objections. This kind of declaration, increasingly frequent in State practice, does not aim to prevent the reservation producing its effects as such. Rather, their authors try to convince the reserving State to modify its reservation or to withdraw it entirely, threatening it with a formal objection152—but this remains quite often only a threat. Aiming only in the alternative to prevent the reservation producing its purported effects, this kind of reaction cannot be qualified as an objection under the ILC definition. The Special Rapporteur considered that these reactions form part of the ‘reservations dialogue’ likely to be established between the reserving and the objecting States.153 However, under the Vienna regime, these quasi objections or conditional acceptances/objections, if unlikely to be considered as proper objections, are submitted to the Article 20, paragraph 5 presumption, even if this might be surprising.154 55. The precision that an objection has to be made ‘in response to a reservation to a treaty formulated by another State or international organization’, seems to be self-evident. It was introduced by the Commission in order to distinguish an objection to a reservation (p. 510) from an objection to the late formulation of a reservation. According to guideline 2.6.2 (Definition of objections to the late formulation or widening of the scope of a reservation) also adopted in first reading in 2005: ‘Objection’ may also mean a unilateral statement whereby a State or an international organization opposes the late formulation of a reservation or the widening of the scope of a reservation.155 In addition, this precision in the ILC ‘objection’ definition disqualifies any reactions to unilateral declaration not provided for by the Vienna Convention, eg non-recognition declarations156 or interpretative declarations.157 56. Furthermore, the ILC clearly states that an objection can be ‘made by a State or an international organization’. On this point, the definition seems to stray significantly from the wording of Article 20, paragraph 4(b), which provided only for ‘an objection by another contracting State to a reservation’. It is however not suitable to conclude from these terms that only contracting States, in the meaning of Article 2, paragraph 1(f) of the Convention, are authorized to make objections. The object of paragraph 4(b) is limited to the possible effects of an objection made by a contracting State with regard to the entry into force of the treaty, but does not exclude the possibility of objections being made or formulated by other States—these later ‘objections’ (for the time being) are only not able to produce the legal effect provided for under Article 20, paragraph 4(b). Furthermore, under Article 23, paragraph 1, a reservation, as well as express acceptances and objections, have to be communicated not only to contracting States, but also to other States ‘entitled to become parties to the treaty’. Such a notification would be meaningless if these States would not be equally entitled to express their acceptance or objection. The same opinion was upheld by the International Court in its 1951 Advisory Opinion: [The Court is of opinion…] (a) that an objection to a reservation made by a signatory State which has not yet ratified the Convention can have the legal effect indicated in the reply to Question 1 only upon ratification. Until that moment it merely serves as a notice to the other State of the eventual attitude of the signatory State; (b) that an objection to a reservation made by a State which is entitled to sign or accede but which has not yet done so, is without legal effect.158 It is consequently not the status of a State with regard to the treaty which bears an influence on its faculty, or even right, to formulate an objection to a reservation. It produces only some consequences on the legal effects the objection purports to produce. The qualification of a unilateral declaration as an objection is, however, independent of the concrete effects it actually produces. Draft guideline 2.6.5 (Author [of an objection]) takes, at least partially, account of the possibility of making objections open to contracting States and States entitled to become a party to the treaty. It provides that: (p. 511) An objection to a reservation may be formulated by: (i)  Any contracting State and any contracting international organization; and (ii)  Any State and any international organization that is entitled to become a party to the treaty in which case such a declaration does not produce any legal effect until the State or the international organization has expressed its consent to be bound by the treaty.159 57. Contrary to reservations, which are only ‘formulated’ by their authors and are a mere proposition, objections are made, as reflected in the definition adopted by the Commission. Once the formal conditions are met, and given the absence of any issue of substantive validity,160 an objection is not a mere proposition and creates legal effects independently of any reaction by the reserving State, or any other State.

Consent and the validity conditions of Article 19 58. The question of the relationship between Articles 19 and 20 is one of the most obfuscate resulting from the Vienna regime, and one of the most discussed. In his First Report, Sir Humphrey considered that the object and purpose criterion ‘does express a valuable concept to be taken into account both by States formulating a reservation and by States deciding 161

whether or not to consent to a reservation that has been formulated by another State’.161 This is in line with the Court's position expressed in the 1951 Advisory Opinion: it is the compatibility of a reservation with the object and purpose of the Convention that must furnish the criterion for the attitude of a State in making the reservation on accession as well as for the appraisal by a State in objecting to the reservation. Such is the rule of conduct which must (p. 512) guide every State in the appraisal which it must make, individually and from its own standpoint, of the admissibility of any reservation.162 59. While draft Article 20, paragraph 2(b), adopted in first reading in 1962 by the Commission, still linked objections to the criterion of incompatibility with the object and purpose of the treaty,163 no reference to the validity criteria of Article 19 with regard to acceptances and objections is included in the Commission's final draft. This ‘defect’ was not remedied by the 1968–69 Conference, despite doubts and criticism expressed by several delegations. In particular, the United States proposed to add to the introductory sentence of paragraph 4 the formula ‘unless the reservation is prohibited by virtue of article 16 [19]’.164 It justified this amendment by the following considerations: The purpose of the United States amendment to paragraph 4 was to extend the applicability of the prohibited categories of reservations set out in article 16 [19] to the decisions made by States under paragraph 4 of article 17 [20] in accepting or objecting to a proposed reservation. In particular, the proposal would preclude acceptance by another contracting State of a reservation prohibited by the treaty, and the test of incompatibility with the object and purpose of the treaty set out in subparagraph (c) of Article 16 [19] would then be applicable to such acceptance or objection. It was a shortcoming of sub-paragraph (c) that it laid down a criterion of incompatibility for a prohibited reservation, but failed to make it explicitly applicable to the acceptance or objection to a reservation.165 60. The issue of the relationship between Articles 19 and 20 left the differences between scholars of the permissibility school and the opposability school open and passionate.166 While the defenders of the first school support the view that the validity of a reservation is a question which has to be assessed objectively and independently of the reaction of other States, the supporters of the opposability school consider that, at least with regard to the object and purpose criterion of Article 19, no objective determination of the validity of a reservation is possible and that only the reactions of other States, through their acceptances and objections, are able to assess the validity of the reservation. However, there is no basis in the Convention and no reason whatsoever to treat differently the validity conditions enumerated under Article 19.167 Both Vienna Conventions determine a unique regime concerning the validity conditions, on the one hand, and the consent to be given by other States, on the other hand. Both conditions—validity and (p. 513) consent—need to be met in order for the reservation to produce its effect.168 As Bowett considered: The issue of ‘permissibility’ is the preliminary issue. It must be resolved by reference to the treaty and is essentially an issue of treaty interpretation; it has nothing to do with the question of whether as a matter of policy, other Parties find the reservations acceptable or not.169 A non-valid reservation is null and void170 and cannot, in principle, be the object of consent,171 or produce any other effect. This has been laid down by the Commission in draft guideline 4.5.1 (Nullity of an invalid reservation): A reservation that does not meet the conditions of formal validity and permissibility set out in Parts 2 and 3 of the Guide to Practice is null and void, and therefore devoid of legal effect.172 61. The disconnection of the validity criteria of a reservation and the objection established clearly that a State may also formulate an objection under the Convention to every valid reservation.173 Sir Humphrey explained during the Vienna Conference: The second question was, where a reservation had not been expressly authorized, and at the same time was not one prohibited under article 16 [19], paragraph (c), could a contracting State lodge an objection other than that of incompatibility with the object and purpose of the treaty? The answer was surely Yes. Each contracting State remained completely free to decide for itself, in accordance with its own interests, whether or not it would accept the reservation.174 62. In this regard, the solution contained in the Vienna Convention is thus different from the one advocated for by the Court in 1951,175 which seems to be too restrictive. States may formulate an objection for whatever reason even when the reservation is permissible. This solution is called for by the consent principle, which underlies the entire reservations regime and the law of treaties: It is well established that in its treaty relations a State cannot be bound without its consent, and that consequently no reservation can be effective against any State without its agreement thereto.176 A State cannot, therefore, be bound by treaty obligations which it does not consider suitable and is not obliged to accept a reservation—which is no more than a proposition to modify the content of the treaty—made by another State even if that reservation is permissible and compatible with the object and purpose of the treaty.177 To limit the faculty (p. 514) to make

objections only to reservations incompatible with one of the Article 19 criteria would, as a counterpart, not only disregard the sovereign right to contract treaty obligations,178 but would also establish a real right to make (permissible) reservations. In such a case, the acceptance/objection mechanism would be meaningless. 63. Moreover, it seems that the Vienna regime, while not prohibiting or limiting the possibility of accepting or objecting to impermissible reservations, does not contain any indication concerning the legal effects of such acceptances and objections. It has been suggested that the Vienna Convention, and especially Articles 20 and 21, are only related to valid reservations; the legal effects of non-valid reservations,179 ie reservations not respecting the validity conditions of Article 19 and Article 23, has to be construed outside the provisions of the Convention.180 64. Consequently, it cannot reasonably be implied from Articles 19 to 23 of the Convention that a State is precluded from accepting a non-valid reservation. Such acceptance does not produce the legal effects provided for under Article 20, paragraph 4, and Article 21, paragraph 1. The latter indeed indicates that it is applicable only to ‘reservation[s] established with regard to another party in accordance with Articles 19, 20 and 23’. F. Horn considered, not without ambiguity, that: An acceptance of an inadmissible reservation is theoretically not possible. Directly or indirectly prohibited reservations under article 19 (1) (a) and (b) cannot be accepted by any confronted state. Such reservations and acceptances of these will not have any legal effects.…Similarly, an incompatible reservation under article 19 (1) (c) should be regarded as incapable of acceptance and as eo ipso invalid and without any legal effect.181 The ILC Special Rapporteur on reservations to treaties also seems to support this position. In his view, a non-valid reservation is not only null and void ipso jure,182 but, even more, a unilateral acceptance of that reservation ‘shall not change the nullity of the reservation’,183 ie is without any legal effect on the reservation. In 2010, however, the ILC deemed it necessary to adopt guideline 3.4.1 (Permissibility of the acceptance of a reservation), according to which the ‘express acceptance of an impermissible reservation is itself impermissible’.184 65. Even more surprisingly, an objection to a non-valid reservation does not produce the effects provided for under the Vienna rules.185 Objecting to a non-valid reservation, broadly speaking, changes nothing in the legal relationship between the reserving State and the author of the objection. The objection is not, under the Vienna regime, the instrument to ‘declare’ the reservation invalid, but an instrument to express disagreement, (p. 515) just as the acceptance cannot be considered to be a validating instrument.186 However, objections based on the conviction that a reservation is non-valid are not useless: they point the reserving State and the interpreter to the problem.187

C. Reservations expressly authorized by the Treaty 66. According to paragraph 1 of Article 20, expressly authorized reservations do not need to be accepted subsequently, ie again, by the contracting States. The provision focuses on the case where an acceptance has been given a priori, within the treaty itself.188 Paragraph 1 does not mean to dispense reservations from the consent requirement; it only expresses the idea that States can give their agreement even before a reservation has been formulated. Of course, only reservations concretely covered by the a priori consent are exempted from subsequent acceptance. 67. Article 20, paragraph 1, which seems to be very clear at first sight, shows serious difficulties of application. The expression ‘reservation expressly authorized by a treaty’ causes important problems of treaty interpretation and does not facilitate the identification of reservations falling under this provision. The ILC draft, interestingly, did not limit the a priori acceptance to ‘expressly’ authorized reservation only, but included also ‘impliedly’ authorized reservations.189 The work of the ILC does not really clarify what such ‘impliedly’ authorized reservations could be. F. Horn suggested that this reference addresses the case of a treaty prohibiting certain categories of reservations and, by so doing, authorizing all the others,190 producing something like the inverted presumption of Article 19(b).191 This explanation, however, puts Articles 19 and 20 in an evident contradiction: it would be sufficient to include in a treaty a provision prohibiting reservations to a given provision in order to override entirely the validity criteria of Article 19 and to establish full liberty to make all other reservations which, at the end, should be considered to be ‘accepted’ under Article 20, paragraph 1.192 During the Vienna Conference, some delegations expressed doubts with regard to the provision193 and filed amendments in order to delete ‘or impliedly’,194 which have finally been adopted.195 Sir Humphrey Waldock, expert-consultant at the Conference, also recognized that: (p. 516) the words ‘or impliedly’ in article 17 [20], paragraph 1, seemed to have been retained in the draft articles as a relic from earlier and more detailed drafts which dealt with implied prohibition and implied authorization of reservations.196 With this change in the provision during the Conference it is clear that under the Vienna regime impliedly authorized reservations, ie non-prohibited reservations, are not automatically and ipso facto opposable to other contracting States. They need to satisfy the object and purpose test,197 and require further acceptance. For the very same reasons, and despite the regrettable lack of precision of the Convention on that point, a general authorization of reservations contained in a treaty does not constitute an a priori acceptance by all parties.198

References 68. Article 12 of the 1958 Geneva Convention on the continental shelf constitutes a telling illustration.199 Paragraph 1 states: ‘At the time of signature, ratification or accession, any State may make reservations to Articles of the Convention other than to Articles 1 to 3 inclusive’. Thus, every State can subordinate its consent to be bound by the Geneva Convention to a reservation to Articles 4 to 15. However, such a general authorization cannot sweep away the consent requirement because Article 12, paragraph 1 certainly does not constitute an acceptance of every possible reservation to Articles 4 to 15. The Court of Arbitration in the France/UK Continental Shelf case considered that: Article 12 cannot be read as committing States to accept in advance any and every reservation to articles other than Articles 1, 2 and 3 to be clearly correct. Such an interpretation of Article 12 would amount almost to a license to contracting States to write their own treaty and would manifestly go beyond the purpose of the Article.200 State practice gives great support to the court's finding. Indeed, 11 States have filed objections to reservations formulated to the Convention despite the fact that those reservations did not concern Articles 1 to 3 and are thus ‘authorized’ by the Convention.

References (p. 517) 69. In order to reach the aim of Article 20, paragraph 1, the expression ‘reservation expressly authorized by the treaty’ has to be interpreted restrictively. In the France/UK Continental Shelf case, the Court of Arbitration rightly considered: ‘[o]nly if the Article [12] had authorised the making of specific reservations could parties to the Convention be understood as having accepted a particular reservation in advance’.201 The court thus seemed to suggest that paragraph 1 of Article 20 is related to the very same category of reservations as those provided for under Article 19(b), despite the different wording,202 ie to ‘specified reservations’. If such specified reservations were authorized by the treaty, every State would have a right to make such a reservation203 without requiring further acceptance by the other States. They would consequently be admissible ipso facto under Article 19(b)204 and opposable under Article 20, paragraph 1, highlighting a logical link between both provisions.205 70. The ILC was not convinced of the existence of such a link when it considered the problem of Article 19(b) and the definition of ‘specified reservations’ (réserves déterminées). Draft guideline 3.1.2 defines ‘specific reservations’ as ‘reservations that are expressly envisaged in the treaty to certain provisions of the treaty or to the treaty as a whole with respect to certain specific aspects’.206 The commentary to that provision makes quite clear that the Commission voluntarily did not want to equate ‘specified reservations’ to ‘expressly authorized reservations’.207 This is furthermore underlined by the fact that, according to draft guideline 3.1.4: Where the treaty envisages the formulation of specified reservations without defining their content, a reservation may be formulated by a State or an international organization only if it is not incompatible with the object and purpose of the treaty.208 Even if there is no necessary link between the permissibility of a reservation and its opposability, it seems odd to consider that such a reservation—which is not ipso facto permissible—could have been ‘expressly authorized by the treaty’ in the sense of Article 20, paragraph 1. 71. The combination of both draft guidelines nevertheless sheds some light on what can be considered to be an ‘expressly authorized reservation’. Definite acceptance can only be inferred if a reservation is specified by the treaty in a sense that its permissibility under Article 19 cannot be put into question. The commentary to draft guideline 3.1.4 expressly states in this regard that: it goes without saying that when the content of a specified reservation is indeed indicated in the reservations clause itself, a reservation consistent with that provision is not subject to the test of compatibility with the object and purpose of the treaty.209 (p. 518) As F. Horn wrote: ‘[w]here the contents of authorized reservations are fixed beforehand, acceptance can reasonably be construed as having been given in advance, at the moment of consenting to the treaty’.210 72. According to this view, two kinds of a priori authorizations and acceptances can be distinguished by which States do not merely recognize the abstract possibility of formulating reservations, but determine clearly and in advance that these reservations can be made. On the one hand, a reservation made in accordance with a provision of the treaty which offers the right to exclude the application of a provision211 or of part of the treaty212 constitutes a ‘specified reservation’. In this case, contracting States do not run a risk: they can, beforehand, appreciate the full extent and content of the treaty relationship entered into with States using the possibility of making such an excluding reservation. On the other hand, there are so-called ‘negotiated reservations’213 which are also to be considered as ‘specified reservations’. Indeed, some treaties not only authorize the possibility of formulating reservations, but contain an exhaustive list of reservations which States can choose to make.214 In that case, States are able to determine beforehand the impact and the effect of reservations on the treaty relationship. By giving its consent to the treaty, a State accepts a priori every possible reservation on the list. In both cases, it is thus the very content of a reservation which is determined by the treaty itself.

References 73. Once established that a reservation is covered by Article 20, paragraph 1, the reservation is exempted from any further acceptance and, in addition, is considered to have been accepted definitively.215 As a consequence, other States are precluded from objecting to this reservation.216 Indeed: (p. 519) The Parties have already agreed that the reservation is permissible and, having made its permissibility the object of an express agreement, the Parties have abandoned any right thereafter to object to such a reservation.217 To maintain the contrary218 would amount to admitting that a State can act against a position previously adopted which is clearly against the well-known principle of venire contra factum proprium. An amendment proposed by France during the Vienna Conference219 expressed this idea very clearly, but was not finally adopted by the Drafting Committee.220 74. As all rules of the Vienna regime, Article 20, paragraph 1 is only residual in character and can be replaced with the parties' consent. The text of the provision clearly underlines this fact: ‘unless the treaty so provides’. It does not, however, seem to make sense to require acceptance of a reservation which by definition has already been accepted in the text of the treaty. Obviously, such a requirement demonstrates that the reservation concerned is not part of ‘reservations expressly authorized by the treaty’.221

References

D. Collective or unanimous acceptance of reservations and the protection of the integrity of certain treaties 75. Paragraphs 2 and 3 of Article 20 embody specific rules in order to take account of the particular nature of some treaties, which, for that reason, cannot be submitted to the general regime embodied in paragraph 4. Both provisions are nothing more than ‘safeguard clauses’: they exclude the applicability of the ‘flexible’ regime to certain categories of treaties without specifying the applicable rules. In addition, their implementation is difficult because of ambiguities in the text.

Reservations to treaties with ‘limited participation’ and unanimous acceptance 76. Article 20, paragraph 2 excludes the application of the general ‘flexible’ system to treaties which, according to the parties' intention, need to be applied in their entirety. G. G. Fitzmaurice had already established a distinction between ‘plurilateral’ treaties—which are in his opinion closer to bilateral treaties—on the one hand, and ‘multilateral’ treaties, on the other hand.222 However, the very interest of the distinction has been described only in Sir Humprey's First Report. The Special Rapporteur considered: (p. 520) Originally the Commission had contemplated applying the relatively new inter-American system of reservations to general multilateral treaties, and had defined general multilateral treaties mainly in order to facilitate the drafting of article 18 bis, and, to a lesser extent, article 7 bis. But the multilateral system, or rather the system of the Latin American states, had now been expanded to cover multilateral treaties as a whole and some members felt that that went very far because there were treaties between comparatively small groups of states which had certainly never contemplated any such system as governing their treaty relations; that was why it had been thought essential to put in a cautionary paragraph.223 Paragraph 2 is accordingly much more than a consensus between the defenders of the traditional system and the supporters of Waldock's ‘flexible’ regime. The very principle of the rule laid down in paragraph 2 was not discussed again during the second reading of Waldock's draft and was not questioned during the Vienna Conference. 77. The principle of unanimous acceptance—a well-established and practised rule—does not, as such, cause problems. Yet, the identification of the treaties to which this rule applies becomes a difficult endeavour. Up until 1965, the ILC Special Rapporteurs had only retained the criterion of a small number of State parties.224 This purely mathematical criterion appeared however to be too bold and too restrictive: up to which number of States is a treaty still concluded between ‘a small group of States’? And why should a treaty concluded between only five States be excluded as such from the general ‘flexible’ reservations regime? 78. Sir Humphrey's Fourth Report took into account the criticisms levelled against that criterion, and recognized that ‘to find a completely precise definition of the category of treaties in issue is not within the bounds of possibility’.225 He proposed putting more weight on the intention of the parties to apply the treaty in its entirety only,226 a longstanding argument of the supporters of the traditional unanimity system. The Commission accepted that idea and changed the wording of paragraph 2 accordingly. 79. The number criterion has not been completely abandoned. Its scope and function however changed and it no longer constitutes the decisive factor in determining whether a treaty is outside the ‘flexible’ regime. Its function is now limited to clarifying the intention of the States parties. It has become a merely auxiliary criterion, but is still very difficult to apply.227 The reference to the ‘limited number of the negotiating States’ is still awkward and hardly allows for a distinction to be made between treaties with ‘limited participation’ and multilateral

treaties proper which, quite often, are the result of negotiations between a ‘limited number’ of States. It would seem more appropriate to refer to the number of States authorized to become parties to the treaty in question.228 (p. 521) 80. Other auxiliary criteria have been proposed by Sir Humphrey in order to determine the States' intention, such as the nature of the treaty and the circumstances surrounding its conclusion.229 Yet, only the object and purpose criterion has been retained by the Commission and the Conference. This by definition very large and enigmatic criterion was certainly not the best choice: it raises the same questions and difficulties as the reference to ‘object and purpose’ in Article 19(c),230 and renders the identification of the intention of the parties even more uncertain.231 81. The legal regime applicable to reservation to treaties with ‘limited participation’ is not determined by paragraph 2, which is barely more than a safeguard clause upholding the traditional unanimity principle. Paragraph 4 makes this unmistakably clear in limiting the application of the ‘flexible’ system to ‘cases not falling under the preceding paragraphs’, ie paragraphs 1, 2, and 3. 82. What does paragraph 2 say about the legal regime of reservations to treaties ‘with limited participation’? In order to be established, such a reservation has to be accepted unanimously, ‘by all the parties’. It is nevertheless questionable if all ‘parties’ need to accept a reservation, ie all States having ‘consented to be bound by the treaty and for which the treaty is in force’.232 Guideline 4.1.2 (Establishment of a reservation to a treaty which has to be applied in its entirety) makes clear that unanimous acceptance needs to be expressed not by all ‘parties’, but by all ‘contracting States and contracting organizations’ in the sense of Article 2, paragraph 1 of the 1986 Vienna Convention.233 83. Moreover, the presumption of tacit and implied consent is, according to Article 20, paragraph 5, also applicable to reservations to treaties with ‘limited participation’. The application of the rule of implied acceptance, as suggested by the text of Article 20, is however problematic.234 Sir Humphrey underlined in 1962 that: This qualification of the rule is not possible in the case of plurilateral treaties because there the delay of taking a decision does place in suspense the status of the reserving State vis-à-vis all the States participating in the treaty.235 These gaps and inconsistencies are all the more surprising if one takes into account draft Article 18, proposed by Sir Humphrey in 1962, which clearly distinguishes between tacit and implied acceptance for ‘plurilateral’ treaties and multilateral treaties.236 These clarifications, which determined comprehensively the legal regime of reservations to treaties referred to in paragraph 2, have been sacrificed in order to make the provisions on reservations less complex and shorter.237 84. Paragraph 2 of Article 20 consequently only specifies that the ‘flexible’ and ‘general’ regime is not applicable to treaties with ‘limited participation’. Beside the unanimity rule, it leaves some important and practical questions entirely unanswered.

(p. 522) Reservations to constituent instruments of international organizations and the acceptance by the organization's competent organ 85. Paragraph 3 excludes the application of the paragraph 4 ‘flexible’ regime with regard to treaties which are constituent instruments of international organizations. These treaties are not designed to create mutual rights and obligations between the States parties only; their purpose—and this is the distinctive criterion—is to create a new subject of international law. The bilateralization of the treaty relations between States parties—one of the principal effects of the application of the flexible system—is certainly not a viable option as far as the relations between member States of an international organization are concerned. Within the legal and institutional framework of the organization, member States need to work in concert in order to realize the object and purpose of the treaty and the organization. Applying the general regime of individual acceptance and objection would entirely compromise this objective, and the nonapplication of the general regime of paragraph 4 seems to be imposed by pure logic. To give an example, it is difficult to imagine that within one international organization a reserving State is to be considered a member of the organization with regard to some member States, and as a third State with regard to those which have made a qualified objection to the reservation.238 86. The question if and under which circumstances a State may formulate a reservation when becoming a member State of an international organization is usually dealt with by the relevant rules of the organization, ie the rules concerning the admission of new member States.239 Several States therefore proposed the deletion of paragraph 3240 because, as Mr Virally explained in the name of France: no special provision need to be made for the constituent instruments of international organizations, since that case was dealt with in article 4 [5] and in the special rules of each organization relating to the admission of members.241 The majority of delegations to the Vienna Conference nevertheless considered it necessary to retain draft paragraph 3 introduced by Waldock in his First242 and Fourth Reports,243 in (p. 523) order to underline the very principle of the competence of the organization. This basic principle was, in fact, seriously criticized by several delegations to the Conference,244 and has been questioned in State practice. The most significant example is constituted by the difficulties surrounding India's reservation to the Constitution of the then Inter-Governmental 245

Maritime Consultative Organization.245 87. The Commission did not appear to be decided on whether the organization needed to participate in the acceptance of a reservation to its constituent instrument. Draft Article 20, paragraph 4, adopted in first reading in 1962, limited the intervention power of the organization only to reservations which have been made the object of objections by other States.246 This limited power was finally abandoned by the Special Rapporteur and the ILC247 taking into account the critics of the Danish government.248 88. Hence, despite the provision of Article 5,249 it was necessary, or at least not entirely superfluous, to retain paragraph 3. In 2009, the ILC adopted guideline 2.8.7 (Acceptance of a reservation to the constituent instrument of an international organization),250 which reproduces paragraph 3. However, as is the case with paragraph 2, the provision is barely more than a safeguard clause. The Special Rapporteur on reservations to treaties considered that ‘article 20, paragraph 3, is far from resolving all the problems which can and do arise’.251 89. Paragraph 3 is indeed as succinct as its concrete application is arduous. Already its scope is unclear: what is a constituent instrument of an international organization? A response to this question is far from self-evident, especially in the case of a hybrid convention creating an international organization, on the one hand, and fixing substantial obligations and rights for its member States, on the other hand.252 The question can also be asked with regard to treaties establishing bodies in order to monitor their execution, as is the case with most commodities conventions.253 Does any organ created in order to supervise the execution of a treaty necessarily have the power to accept reservations?

References 90. Paragraph 3 is also silent about the identification of the ‘competent organ’ of the organization, and leaves this question to the relevant institutional rules of the organization itself. In 2009, the ILC made clear that: (p. 524) Subject to the rules of the organization, competence to accept a reservation to a constituent instrument of an international organization belongs to the organ competent to decide on the admission of a member to the organization, or to the organ competent to amend the constituent instrument, or to the organ competent to interpret this instrument.254 91. Despite two amendments proposed by Austria255 and China,256 the 1968–69 Conference did not deem it necessary specifically to envisage the case where the competent organ of the organization is not yet constituted.257 In 2009, the ILC filled this gap with guideline 2.8.10 (Acceptance of a reservation to a constituent instrument that has not yet entered into force): In the case set forth in guideline 2.8.7 and where the constituent instrument has not yet entered into force, a reservation is considered to have been accepted if no signatory State or signatory international organization has raised an objection to that reservation by the end of a period of 12 months after they were notified of that reservation. Such a unanimous acceptance once obtained is final.258 92. Paragraph 3 is equally silent on the scope of the decision of the competent organ of the organization. Logically, the majority decision taken by States within the competent organ leaves no room for the States to accept or to object individually. An amendment proposed by the United States in Vienna was aimed at safeguarding the possibility for individual member States to react to a reservation notwithstanding the decision of the organization.259 Although adopted by the Conference beforehand,260 the proposal was ultimately deleted from the text.261 During its work on reservations, the ILC made clear in 2009 that ‘the individual acceptance of the reservation by States or international organizations that are members of the organization is not required’.262 However, as the Commission underlined in guideline 2.8.11 (Reaction by a member of an international organization to a reservation to its constituent instrument), this does not ‘preclude States or international organizations that are members of an international organization from (p. 525) taking a position on the permissibility or appropriateness of a reservation to a constituent instrument of the organization’, even if ‘[s]uch an opinion is in itself devoid of legal effects’.263 93. The rule of the acceptance by the competent organ of the organization constitutes only a presumption. It is not applicable if the constituent instrument provides otherwise, as is made clear in paragraph 3 and in Article 5 of the Vienna Convention. As such, the principle and paragraph 3 are nevertheless useful. At least they encourage States hostile to the solution finally adopted to regulate expressly the issue of reservations when negotiating the text of a constituent instrument of an international organization. In practice, however, only a few constituent instruments contain provisions concerning reservations,264 mostly in order to prohibit the formulation of reservations.265

References

E. The effects of acceptances and objections on the entry into force of the treaty 94. The main objective of Article 20, paragraph 4 is to determine the effects of an acceptance of a reservation, on the one hand, and of an objection to a reservation, on the other hand, on the entry into force of the treaty.

Effects of acceptances 95. The provisions of paragraph 4(a) and (c) are the cornerstone of the ‘flexible’ system of the Convention. Indeed, under sub-paragraph (c), ‘an act expressing a State's consent to be bound by the treaty and containing a reservation is effective as soon as at least one other contracting State has accepted the reservation’. The provision is clear: instead of unanimity, only one acceptance made by one contracting State is sufficient for the author of a permissible reservation to become a contracting State or a party to the treaty.266 Sub-paragraph (a) explains, however, that the acceptance can create a conventional link between the two States concerned only, ie between the reserving State and the accepting State.267 96. Under paragraph 4 of Article 20, an acceptance of a reservation has the function of determining the moment from which the reserving State can be considered to be part of the group of contracting States. The ILC clearly underlined this basic function of Article 20(4), in guideline 4.2.1 (Status of the author of an established reservation): (p. 526) As soon as a reservation is established in accordance with guidelines 4.1 to 4.1.3 [ie has been accepted by at least one contracting State, or, under the relevant rules applicable to the treaty, as the case may be], its author becomes a contracting State or contracting organization to the treaty.268 This implies that, if the treaty is already in force, the reserving State becomes a party to the treaty or, if the treaty has not yet entered into force, the reserving State is included in the list and number of contracting States necessary for the entry into force of the treaty.269 97. In addition, Article 20(4)(a) identifies those States which, by their acceptance, have effectively established a (bilateral) treaty relationship with the reserving State, as the ILC has confirmed in guideline 4.2.3 (Effect of the establishment of a reservation on the status of the author as a party to the treaty): The establishment of a reservation constitutes its author a party to the treaty in relation to contracting States and contracting organizations in respect of which the reservation is established if or when the treaty is in force.270 98. The concrete content of the newly established treaty relation is not determined under Article 20(4) but under Article 21(1). 99. It is noteworthy that paragraph 4 does not mention the permissibility of the reservation with regard to Article 19. A US proposal at the Vienna Conferences aimed at filling this ‘gap’ by adding ‘unless the reservation is prohibited by virtue of article 16 [19]’271 was not adopted. The question of the effects of an impermissible reservation on the entry into force of the treaty is still open and divides scholars and judges. One can only admit that the consequences of a non-valid reservation on the entry into force of the treaty with regard to the reserving State are not addressed by the Vienna Convention.272 In order to define a legal regime applicable to non-valid reservation, D.W. Greig273 underlined that there are only three possibilities. 100. First, despite the nullity of the reservation, the treaty enters into force. However, the reserving State not having consented to the provisions to which the reservation relates, those provisions are not opposable to it. At first glance, this solution seems quite attractive. It corresponds to the legal effects of an objection to a reservation under Article 21(3), and respects to the letter the consent given by the reserving State.274 However, this solution is not entirely uncontroversial as it does not draw any consequences from the (p. 527) nullity of the reservation; the non-valid reservation is treated as any permissible, not accepted, reservation. 101. Second, the reservation is invalid and null, and this nullity affects the consent to be bound by the treaty. In this case, the reserving State cannot become a party to the treaty— notwithstanding any acceptance.275 The advantage of this solution seems to be the respect of the consent expressed by the reserving State: if the reservation can be considered to be a condition for the State's consent to the treaty, one could not take into account the State's consent without that reservation. Within the more particular case of reservations to the declarations recognizing the jurisdiction of the ICJ as compulsory, Judge Hersch Lauterpacht considered that: If that reservation is an essential condition of the Acceptance in the sense that without it the declaring State would have been wholly unwilling to undertake the principal obligation, then it is not open to the Court to disregard that reservation and at the same time to hold the accepting State bound by the Declaration.276 The reserving State is consequently not considered to be a contracting State to the treaty as long as it does not modify or withdraw its reservation.277 This was also the position of the Special Rapporteur on the topic of reservations to treaties as endorsed by the ILC in 1997; in its Preliminary Conclusions on the topic, the Commission noted that: in the event of inadmissibility of a reservation, it is the reserving State that has the responsibility for taking action. This action may consist, for example, in the State's either modifying its reservation so as to eliminate the inadmissibility, or withdrawing its reservation, or forgoing becoming a party to the treaty.278 The same solution was favoured by the United Kingdom and the French Republic in their observations to General Comment No. 24 of the Human Rights Committee.279

References 102. The third approach considers that the invalid reservation is severable from the State's

commitment towards the treaty. The nullity of the reservation does not affect the State's consent to be bound by the treaty and the reserving State becomes, in principle, a contracting State to the treaty without the benefit of the reservation. D. W. Bowett justifies this approach by drawing a distinction between the will of the State to become a party to the treaty, on the one hand, and the will to limit the application of the treaty by the reservation, on the other hand: If it can be objectively, and preferably judicially, determined that the State's paramount intention was to accept the treaty, as evidenced by the ratification or accession, then an impermissible reservation which is not fundamentally opposed to the object and purpose of the treaty can be struck out and disregarded as a nullity. Conversely, if the State's acceptance of the treaty is clearly dependent (p. 528) upon an impermissible condition of which the terms are such that the two are not severable and the reservation is in fundamental contradiction with the object and purpose of the treaty, then the effect of that impermissibility and invalid reservation is to invalidate the act of ratification or accession, nullifying the State's participation in the treaty.280 Bowett's approach and the distinctions made have no basis in the Vienna Convention, and are, in the end, quite difficult to apply in practice.281 103. A more evident basis for the severability solution can be found in the good faith principle. D. W. Greig considers in this regard that: From the point of view of the reserving State, it has attempted [by a non-valid reservation] to modify its position in a way that is not permitted by the treaty. If that situation is assessed in the light of the standard of good faith or according to equitable principles, there is no reason why the State concerned should be entitled to rely upon its reservation, if general acceptance of its attempt to modify its treaty obligations is not forthcoming, as a basis for arguing that its act of ratification or accession is rendered invalid by the impermissibility of the treaty. In other words, where a party ratifies or accedes to a treaty subject to a reservation which is in clear conflict with the terms of that treaty, it is taking the risk that the ratification of or accession to the treaty will take effect without the protection to its position provided by the invalid reservation.282 104. This solution corresponds to the position adopted by the European Court of Human Rights in the Belilos v Switzerland case.283 After having re-qualified the Swiss interpretative declaration into a reservation and having concluded that this reservation was non-valid, the Court held: ‘it is beyond doubt that Switzerland is, and regards itself as, bound by the Convention irrespective of the validity of the declaration’.284 This position has been reiterated in European Court's judgment in the Loizidou v Turkey case: [The Court] observes that the respondent Government must have been aware, in view of the consistent practice of Contracting Parties under Articles 25 and 46 (art. 25, art. 46) to accept unconditionally the competence of the Commission and Court, that the impugned restrictive clauses were of questionable validity under the Convention system and might be deemed impermissible by the Convention organs.… The subsequent reaction of various Contracting Parties to the Turkish declarations (see paragraphs 18–24 above) lends convincing support to the above observation concerning Turkey's awareness of the legal position. That she, against this background, subsequently filed declarations under both Articles 25 and 46 (art. 25, art. 46)—the latter subsequent to the statements by the Contracting Parties referred to above—indicates a willingness on her part to run the risk that the limitation clauses at issue would be declared invalid by the Convention institutions without affecting the validity of the declarations themselves. Seen in this light, the ex post facto statements by Turkish representatives cannot be relied upon to detract from the respondent Government's basic—albeit qualified—intention to accept the competence of the Commission and Court.285 (p. 529) 105. The Strasbourg approach is quite different from the more categorical one adopted by the Human Rights Committee in its General Comment No. 24. Whereas the Strasbourg Court places emphasis on the reserving State's willingness ‘to run the risk’, the Committee simply affirmed the severability of the ratification instrument and the invalid reservation: The normal consequence of an unacceptable reservation is not that the Covenant will not be in effect at all for a reserving party. Rather, such a reservation will generally be severable, in the sense that the Covenant will be operative for the reserving party without benefit of the reservation.286 106. The position of the human rights bodies has been considerably nuanced since General Comment No. 24. The Working Group on reservations, established at the request of the fourth inter-committee meeting and the seventeenth meeting of chairpersons of the human rights treaty bodies in order to examine the report on the practice of human rights treaty bodies with respect to reservations to international human rights treaties, has recommended an approach much closer to the Strasbourg solution: As to the consequences of invalidity, the Working Group agrees with the proposal of the Special Rapporteur of the International Law Commission according to which an invalid reservation is to be considered null and void. It follows that a State will not be able to rely on such a reservation and, unless its contrary intention is incontrovertibly 287

established, will remain a party to the treaty without the benefit of the reservation.287 107. It is worth noting that the entry into force of the treaty for a State having formulated a non-valid reservation is not conditioned by acceptance of its reservation by other States. It is, following the solution proposed by the Strasbourg Court case law and the Human Rights Working Group on reservations, presumed. The reserving State will consequently be held to be bound by the treaty without the benefit of its non-valid reservation, ‘unless its contrary intention is incontrovertibly established’, independently of the consent of any other State. 108. The ILC endorsed the solution favoured by the human rights bodies. In its Guide to practice it proposed a presumption in favour of the willingness of the reserving State to be bound by the treaty notwithstanding its reservation. This presumption can nevertheless be reversed in the case where the actual intention of the reserving State was different. Guideline 4.5.2 (Status of the author of an invalid reservation in relation to the treaty), which is certainly not reaffirming existing customary international law or the rules established by the Vienna Convention, but constitutes a typical example of progressive development, provides: When an invalid reservation has been formulated, the reserving State or the reserving international organization is considered a contracting State or a contracting organization or, as the case may be, a party to the treaty without the benefit of the reservation, unless a contrary intention of the said State or organization can be identified. (p. 530) The intention of the author of the reservation shall be identified by taking into consideration all factors that may be relevant to that end, including: – The wording of the reservation; – Statements made by the author of the reservation when negotiating, signing or ratifying the treaty, or otherwise expressing its consent to be bound by the treaty; – Subsequent conduct of the author of the reservation; – Reactions of other contracting States and contracting organizations; – The provision or provisions to which the reservation relates; and – The object and purpose of the treaty. 288 It should nevertheless be noted that this provision has some support in the case law of international human rights courts and tribunals, in the practice of human rights bodies, ie the Human Rights Committee, in State practice, and in legal doctrine.289 109. In practice, the issue of validity or of non-validity of a reservation is quite often in limbo and only the intervention of an impartial third party (ie a judge) can determine definitely if a reservation is valid. Before this authoritative determination, the existence and the content of the treaty relationships established by the reserving State and the contracting States having accepted the reservation can only be presumed.

The variable effects of objections 110. In accordance with paragraph 4(b), an objection to a reservation does not, as such, entail the entry into force of the treaty: ‘an objection by another contracting State to a reservation does not preclude the entry into force of the treaty as between the objecting and reserving States’. It does not preclude the entry into force of the treaty, but does not alone make the reserving State a contracting State to the treaty; only an acceptance can have this outcome, according to Article 20(4)(c). Consequently, a ‘simple’ objection (or objection with ‘minimum effect’)290 does not have the same effect on the entry into force of the treaty as an acceptance; the objection cannot produce the legal effect provided for under Article 20(4)(b) without at least one acceptance.291 However, once the reserving State can be considered a contracting State or a party to the treaty, an objection with ‘minimum effect’ does in principle entail the establishment of a (bilateral) treaty relationship between the reserving State and the objecting State, the content of which is determined by Article 21(3). 111. However, the entry into force of the treaty is only one of the possibilities the objecting State can choose. Sub-paragraph (b) specifies that an objection precludes the (p. 531) entry into force of the treaty between the objecting State and the reserving State ‘unless a contrary intention is definitely expressed by the objecting State’. The objecting State thus has the right to prevent the establishment of a treaty relationship if it so wishes or if it considers this solution necessary. The expression of the corresponding intent makes the objection ‘qualified’. It has its ‘maximum effect’.292 112. This presumption is somewhat surprising. Traditionally, the immediate effect of an objection consisted in the refusal to grant to the reserving State the status of a party to the treaty.293 This was the only possible solution within the unanimity system—and is as such still applicable to treaties referred to under Article 20, paragraph 2.294 Every objection precluded unanimity and the reservation could not be considered as established. The Special Rapporteurs of the ILC supporting the traditional system considered this rule as being so evident that they did not even deem it necessary to include it in their drafts. 113. The ‘revolution’ of the ‘flexible’ system did not, as such, change the effect of an objection on the entry into force of the treaty (however, only in the bilateral relationship between the States concerned).295 Draft Article 19, paragraph 4(c), proposed by Sir Humphrey in 1962, was based on exactly the same concept of objection: it precluded the entry into force of the treaty.296 In order to pay due account to the 1951 Advisory Opinion of the International Court,297 and to respond to critics and doubts expressed by members of the ILC,298 the

categorical solution was replaced by a mere presumption in favour of the maximum effect of an objection. The minimum effect became a mere option. Draft Article 20, paragraph 2(b) adopted in first reading was formulated as follows: An objection to a reservation by a State which considers it to be incompatible with the object and purpose of the treaty precludes the entry into force of the treaty as between the objecting and the reserving State, unless a contrary intention shall have been expressed by the objecting State.299 114. In their observations on the draft Articles, Czechoslovakia and Romania proposed to invert the presumption in order to establish a rule which is ‘more likely to broaden treaty relations among States and to prevent the formation of an undesirable vacuum in the legal ties between States’.300 Even if this proposal found support among some members (p. 532) of the ILC,301 it was not ultimately endorsed in the Commission's final draft. The issue reappeared during the Vienna Conference; after forceful discussions, it was decided at a very late stage of the Conference to accept the corresponding Soviet amendment and to reverse the presumption in favour of the minimum effect of an objection.302 115. As shown by the discussions during the Conference, the reversal of the presumption is far from being as insignificant as Sir Humphrey, expert-consultant at the Conference, thought. The issue cannot be limited to ‘formulating a rule one way or the other’.303 The new formula creates most of the doubts concerning the usefulness of objections and the differences between an acceptance and an objection.304 The presumed minimum effect weakens the dissuasive element of an objection and reveals further questions, especially about non-valid reservations. The most sensible consequence of the reversal of the presumption in paragraph 4 may be seen in the fact that ‘minimum effect’ objections constitute, in State practice, the more common objections, whereas ‘maximum effect’ objections—ie objections where the author has ‘definitely expressed’ its intention to prevent the entry into force of the treaty between itself and the author of the reservation—have become the exception;305 some authors even affirm their extinction.306 116. Interestingly, most of the ‘maximum effect’ objections are based on the non-validity of the reservation.307 However, in practice, States quite often choose the ‘minimum effect’ option of paragraph 4(b) notwithstanding their doubts about the validity of a reservation. A very prominent example is the Dutch objection to the Chinese reservation to the 1947 Convention on the Privileges and Immunities of the Specialized Agencies: The Government of the Kingdom of the Netherlands has noted the reservation made on the accession of China to the Convention on the privileges and immunities of the specialized agencies, and is of the opinion that the reservation mentioned, and similar reservations other States have made in the past or may make in the future, are incompatible with the objectives and purposes of the Convention. The Government of the Kingdom of the Netherlands does, however, not wish to raise a formal objection to these reservations made by States parties to the Convention.308 (p. 533) The Dutch government explained that its statement ‘is intended to mean that the Government of the Kingdom of the Netherlands does not oppose the entry into force of the Convention between itself and the reserving states’.309 This example is far from being isolated, quite to the contrary,310 and is certainly not a purely speculative hypothesis.311

References 117. The Vienna Convention does not address the issue of validity or propriety of these minimum effect objections to non-valid reservations, and even less their effects on the treaty relationship. The work of the ILC suggests that the treaty might indeed enter into force notwithstanding an objection motivated by the incompatibility of the reservation with the object and purpose of the treaty. Draft Article 20, paragraph 2(b),312 as adopted in first reading as part of the draft still establishing a link between permissibility of the reservation and objections, provided clearly in favour of the possibility of making objections to impermissible reservations (because of their non-conformity with the object and purpose of the treaty) without opposing the entry into force of the treaty.313 In this particular case, Article 21, paragraph 3—which does not state that it is only applicable to valid reservations—was then applicable in order to determine the content of the thus established relationship between the reserving and the objecting States. This solution must, however, be categorically rejected. The objection to a non-valid reservation would produce exactly the same legal effects as any objection to a valid reservation, a solution which has been rejected in the case of an acceptance of a non-valid reservation.314

References 118. If it is true that a non-valid reservation is null and void and cannot be established—not even accepted by a State—an objection would never produce any effect, not even on the entry into force of the treaty. The nullity of the reservation as such has a legal effect for the reserving State:315 in principle, its consent to be bound by the treaty remains unaffected; the treaty enters into force for the reserving State which, however, cannot benefit from the nonvalid reservation. This solution is supported by well-established (p. 534) State practice.316 Indeed, quite often States, having made an objection because of the impermissibility of a reservation, do not oppose the entry into force of the treaty requiring that the reserving State cannot benefit from the reservation. In the opinion of the authors of such objections, the reserving State will be bound by the treaty just as if it had not made its reservation. The

‘objection’ formulated by the Czech Republic to the Qatari reservation to the Convention on the Elimination of All Forms of Discrimination against Women concludes: The Czech Republic…objects to the aforesaid reservations made by the State of Qatar to the Convention. This objection shall not preclude the entry into force of the Convention between the Czech Republic and the State of Qatar. The Convention enters into force in its entirety between the Czech Republic and the State of Qatar, without the State of Qatar benefiting from its reservation.317 Even if, as a result, such objections are correct as far as the future relationship between their authors and the reserving State are concerned, it is questionable whether these objections can produce this ‘super-maximum’ effect, as claimed by some authors.318 Indeed, the result cannot be created by the mere objection of a State,319 but constitutes the result of the nullity of the reservation as such; even without an objection, the result for the reserving State remains the ‘super-maximum’ effect.

References 119. Even if, in principle, making an objection to a non-valid reservation, or the decision not to do so, does not change the legal effect of the reservation or the contractual relationship established with the reserving State—which might be surprising—objections to non-valid reservations are not entirely useless: irrespective of the absence of any legal effect, they constitute a valuable instrument for the reserving State, other contracting States, and the interpreter in order to determine the validity of the reservation. Furthermore, an objection preserves the rights of its author, even in the event that the reservation is revealed to be valid. The solution provided for under the Vienna Convention, even if not applicable to non-valid reservations, determines a workable provisional result up to the moment the validity of the reservation is objectively determined.320 *

DANIEL MÜLLER

Footnotes: 1 The ILC commentary on Art. 17 (which became Art. 20) confirms that this provision, and in particular its para. 4, ‘contains the three basic rules of the “flexible” system’ (YILC, 1966, vol. II, p 207, para. 21). See also D. W. Bowett, ‘Reservations to Non-Restricted Multilateral Treaties’, BYBIL, 1976–77, vol. 84, pp 67–92 at p 84. 2 Concerning this point, Pierre-Henri Imbert has emphasized: ‘Exiger d'une réserve qu'elle soit “compatible avec l'objet et le but du traité” n'est pas en soi particulièrement révolutionnaire, ni même très nouveau’ (Les réserves aux traités multilatéraux (Paris: Pedone, 1979), p 63). 3 ICJ Reports 1951, p 15. 4 Cf infra, paras 15–16. 5 See also the more general presentation of the work of the ILC concerning Arts 19 to 23 in the commentary on Art. 19, at paras 2–27 and A. Pellet, First Report on the law and practice concerning reservations to treaties (Preliminary Report), A/CN.4/470, YILC, 1995, vol. II, Part Two, pp 127–34, paras 12–57. 6 Sir Humphrey Waldock, First Report on the Law of Treaties, A/CN.4/144, YILC, 1962, vol. II, p 63, para. 3 of the commentary to draft Arts 17, 18, and 19. See also the commentary on Art. 19, at paras 14 ff. 7 J. L. Brierly, Report on the Law of Treaties, A/CN.4/23, YILC, 1950, vol. II, p 240. 8 Report on reservations to multilateral conventions, A/CN.4/41, YILC, 1951, vol. II, pp 1–2, para. 4. 9 See the commentary on Art. 19, at paras 3–4. 10 See draft Art. 9 and its commentary, H. Lauterpacht, [First] Report on the Law of Treaties, A/CN.4/63, YILC, 1953, vol. II, pp 123–4. 11 See also A. Pellet, First Report, A/CN.4/470, supra n 5, p 129, paras 26–7. 12 Alternative draft A of Art. 9, para. 4, alternative draft B, para. 1, alternative draft C, para. 2, and alternative draft D, para. 2 (H. Lauterpacht, [First] Report, A/CN.4/63, supra n 10, pp 91–2). 13 J. L. Brierly, Report on Treaties, A/CN.4/23, supra n 7, para. 93. 14 YILC, 1950, vol. I, 53rd meeting, 23 June 1950, pp 92–5, paras 41–84. Mr el-Khoury took the position that the silence of a State should not imply acceptance, but refusal of the reservation (ibid, p 94, para. 67). This opinion was nevertheless isolated. 15 Cf draft Art. 39, para. 2, in G. G. Fitzmaurice, Report on the Law of Treaties, A/CN.4/101, YILC, 1956, vol. II, p 115. 16 Cf draft Art. 38, ibid. 17 This fact also explains the very short time limits provided for in Lauterpacht's and Fitzmaurice's drafts (three months). 18 Cf the commentary on Art. 19, at paras 14 ff. 19 See especially draft Art. 18, para. 4(b)(ii) in A/CN.4/144, supra n 6, p 61 and p 68, para. 19 of the commentary on that provision. 20 YILC, 1962, vol. I, 653rd meeting, 29 May 1962, p 159, para. 55.

21 Ibid, 652nd meeting, 28 May 1962, p 147, para. 8 (Mr Jiménez de Aréchaga), p 148, para. 29 (Mr Castrén). 22 Ibid, 656th meeting, 4 June 1962, p 195, para. 36. 23 Ibid, 663rd meeting, 18 June 1962, pp 223–4, para. 36. 24 Ibid, p 225, para. 61. 25 See the commentary on Art. 19, at para. 15. 26 The provision was very controversial and never had the support of all ILC members. In particular, it created discord between the supporters of the traditional unanimity system and those of the ‘flexible’ system. Mr Briggs insisted that in the ILC report his disapproval of the draft Article was specifically mentioned (YILC, 1962, vol. I, 672nd meeting, 29 June 1962, p 286, para. 3 and ibid, vol. II, p 176 (fn 48)). 27 For a more detailed presentation of both schools, see the commentary on Art. 19, at paras 49 ff. 28 YILC, 1962, vol. I, 664th meeting, 19 June 1962, p 234, para. 63. 29 Ibid, 667th meeting, 25 June 1962, p 253, para. 72 and the corresponding draft Art. 21, YILC, 1962, vol. II, p 181. 30 Sir Humphrey Waldock, Fourth Report on the Law of Treaties, A/CN.4/177 and Add.1 and 2, YILC, 1965, vol. II, pp 47–58. 31 Ibid, p 46. 32 Concerning tacit and implied acceptance, see infra paras 28–47. 33 To this effect, the Special Rapporteur introduced a cross-reference to draft Art. 19, para. 4 (now Art. 20, para. 4), excluding treaties between a ‘small group of States’ and constituent instruments of international organizations (see Fourth Report, A/CN.4/177, supra n 30, p 54, para. 18). 34 Cf the commentary on Art. 19, at para. 22. 35 YILC, 1965, vol. I, 813rd meeting, 29 June 1965, p 264, para. 2. 36 See infra paras 110–14. 37 The draft was adopted by 15 votes to one (Mr Briggs) and one abstention (Mr Tsuruoka). Mr Briggs and Mr Tsuruoka, strong supporters of the traditional system, voted against para. 4 of the new draft because ‘the rule set out in paragraph 4 was not an existing rule of international law and was not one that [they] regarded it as desirable that the Commission should recommend to States’ (YILC, 1965, vol. I, 816th meeting, 2 July 1965, p 284, paras 49, 50, and 52). For the text of ILC draft Art. 17, see ibid, vol. II, pp 202–3. 38 See also the commentary on Art. 19, at paras 25–6 and A. Pellet, First Report, A/CN.4/470, supra n 5, pp 134–5, paras 58–60. 39 See infra paras 66–74. 40 United Nations Conference on the Law of Treaties, Official Records, Summary Records of the Plenary Meetings and the Meetings of the Committee of the Whole, 1st session, Vienna, 26 March–24 May 1968 (A/CONF.39/11), 21st meeting, 10 April 1968, p 111, para. 39. 41 See the amendment proposed by Switzerland (A/CONF.39/C.1/L.97), by France and Tunisia (A/CONF.39/C.1/L.113), and by Thailand (A/CONF.39/C.1/L.150) (ibid, Documents of the Conference, 1st and 2nd sessions, Vienna, 26 March–24 May 1968 and 9 April–22 May 1969 (A/CONF.39/11/Add.2), p 135). 42 See Germany, Summary Records (A/CONF.39/11), supra n 40, 21st meeting, 10 April 1968, p. 119, para. 24, and Ghana, ibid, 22nd meeting, 11 April 1968, p 119, para. 66. 43 55 votes to 18, with 12 abstentions (ibid, 25th meeting, 16 April 1968, p 135, para. 30). 44 A/CONF.39/C.1/L.85, Documents of the Conference (A/CONF.39/11/Add.2), supra n 41, p 135. 45 A/CONF.39/C.1/L.94, ibid. 46 A/CONF.39/C.1/L.115, ibid, p 133. 47 See supra para. 11. 48 The representative of the United Arab Republic considered that these were mere drafting amendments (Summary Records (A/CONF.39/11), supra n 40, 24th meeting, 16 April 1968, p 127, para. 24). 49 The Swedish representative emphasized that ‘the International Law Commission's formula might have the advantage of dissuading States from formulating reservations’ (ibid, 22nd meeting, 11 April 1968, pp 117–18, para. 35). Poland supported the amendments because they favoured the formulation of reservations and the establishment of treaty relationships (ibid, p 118, paras 39–40). Argentina considered that the USSR amendment and the resulting regime ‘would go too far in applying the principle of flexibility and might create unduly complex relations between States’ (ibid, 24th meeting, 16 April 1968, p 129, para. 43) which proved to be the case. 50 Ibid, 25th meeting, 16 April 1968, p 135, paras 35–6. 51 A/CONF.39/L.3, Documents of the Conference (A/CONF.39/11/Add.2), supra n 41, pp 285– 6. 52 ICJ Reports 1951, p 29. 53 49 votes to 21, with 30 abstentions, United Nations Conference on the Law of Treaties,

Official Records, Summary Records of the Plenary Meetings and the Meetings of the Committee of the Whole, 2nd session, Vienna, 9 April–22 May 1969 (A/CONF.39/11/Add.1), 10th plenary meeting, 29 April 1969, p 35, para. 79. 54 See also infra para. 114. 55 Cf the commentary on Art. 19, at paras 55 ff. 56 Mrs Briggs and Tsuruoka explained their negative vote with regard to para. 4 by the consideration that this provision was not actually a rule of customary law and that the Commission should not address this kind of recommendation to States (fn 37). 57 YILC, 1966, vol. II, p 208, para. 23 of the commentary. Cf also the Advisory Opinion of the ICJ, infra para. 28 and fn 83. 58 P.-H. Imbert, supra n 2, pp 103–5. 59 See the commentary on Art. 19, at paras 58–62. 60 G. Gaja, ‘Unruly Treaty Reservations’ in Le Droit international à l'heure de sa codification, Études en l'honneur de Roberto Ago (Milan: Guiffrè, 1987), p 324; D. W. Greig, ‘Reservations: Equity as a Balancing Factor?’, Australian Yearbook of Int'l L, 1995, vol. 16, pp 21–172 at pp 127 ff. 61 Cf also infra paras 41–3. 62 Professor Gaja referred inter alia to the Advisory Opinion of the Inter-American Court of Human Rights on the Effect of Reservations on the Entry into Force of the American Convention on Human Rights (Arts. 74 and 75) (OC-2/82, 24 September 1982, Series A, no 2), and the practice of the UN Secretary-General (supra n 60, pp 321–3). 63 Sir Humphrey Waldock considered that the draft Articles concerning reservations ‘have to be read together because the power of a State to formulate reservations to a treaty cannot be considered separately from the corresponding power of other States to accept or reject the reservation’ (First Report, A/CN.4/144, supra n 6, p 62, para. 1). The same idea has been expressed in the ILC commentaries to the final draft (YILC, 1966, vol. II, p 202, para. 1 of the commentary on Arts 16 and 17). 64 See infra the commentary on Art. 21. 65 ICJ Reports 1951, p 21. The dissenting judges have equally highlighted in their Joint Opinion: ‘The consent of the parties is the basis of treaty obligations. The law governing reservations is only a particular application of this fundamental principle, whether the consent of the parties to a reservation is given in advance of the proposal of the reservation or at the same time or later’ (ibid, pp 31–2). See the famous dictum of the Permanent Court in the SS Lotus case: ‘The rules of law binding upon States…emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims’ ([1927] PCIJ, Series A, no. 10, p 18). 66 According to the Special Rapporteur on reservations to treaties, a reservation is, in the great majority of cases, only ‘formulated’ by its authors. It is only a proposition. Such a reservation can only be considered as having been ‘made’ if it is valid and once a State or some States have accepted it (A. Pellet, Fifth Report on reservations to treaties, A/CN.4/508 and Add.1 to 4, para. 228; see also Sir Humphrey Waldock, First Report, A/CN.4/144, supra n 6, p 62, para. 1 of the commentary on Arts 17, 18, and 19). 67 See infra para. 96. 68 See the commentary on Art. 21, at paras 18–21. 69 P.-H. Imbert, supra n 2, p 69. R. Riquelme Cortado submits: no cabe duda de que la instauración del sistema flexible ha relegado la función y efectos del consentimiento a un papel secundario, al extremo de que la aceptación de los demás contratantes ya no puede concebirse como una condición necesaria, sino meramente suficiente de la participación del reservante en el tratado. (Las reservas a los tratados. Lagunas y ambigüedades del Régimen de Viena (Murcia: Universidad de Murcia, 2004), p 209) 70 L. Lijnzaad, Reservations to UN-Human Rights Treaties. Ratify and Ruin? (Dordrecht: Martinus Nijhoff, 1995), p 46. It is worth noting that an objection is equally able to produce at least some legal effects between the reserving State and the author of the objection. However, these are not the effects aimed at by the reserving State. See also the commentary on Art. 21, at paras 37–60. 71 See also the commentary on Art. 19, at para. 25. For the questionable position of the InterAmerican Court of Human Rights, see infra n 198. 72 Ch. Tomuschat, ‘Admissibility and Legal Effects of Reservations to Multilateral Treaties’, ZaöRV, 1967, vol. 27, pp 463–82 at p 466. 73 This is the term used in Art. 21(1). See also the commentary on Art. 21, at paras 18–21. 74 Concerning the uncertainties of the relationship between Arts 19 and 20, see in particular paras 58–65. 75 P.-H. Imbert, supra n 1, p 104. The author refers to D. Kappeler, Les réserves dans les traités internationaux (Basle: 1958), pp 40–1. 76 F. Horn suggests that the changes concerning the negotiation methods and practices justify a more flexible approach concerning tacit acceptance (Reservations and Interpretative

Declarations to Multilateral Treaties (The Hague: Kluwer, 1988), pp 124–5). 77 Ibid, p 124; L. Lijnzaad, supra n 70, p 46; R. Riquelme Cortado, supra n 69, pp 211 ff. It is difficult to identify examples of express acceptances in practice because the Secretary-General does not publish them, contrary to objections (R. Riquelme Cortado, supra n 69, p 213). An example often referred to by scholars concerns the express (but late) acceptance by Germany of the (also late) French reservation to the 1931 Convention providing a Uniform Law for Cheques (Multilateral Treaties deposited with the Secretary-General (available at: http://treaties.un.org/), LON, 11). The German declaration does not make clear whether it constitutes an acceptance of the content of the reservation, or, simply, aims at ‘validating’ the ‘late’ reservation. A clearer example can be found in the declaration of the United States in relation to the Romanian and Soviet reservations in relation to the 1949 Geneva Convention on Road Traffic (ibid, ch. XI, B, 1). The communications made by the United States to the reservations formulated by Bulgaria, the USSR, and Romania concerning the disputesettlement mechanism under Art. 21 of the 1954 Convention concerning Customs Facilities for Touring make clear that the government of the United States ‘has no objection to’ the reservations (ibid, ch. XI, A, 6). However, these ‘acceptances’ need to be considered with caution given that Art. 20, para. 7 of said Convention states that ‘[n]o Contracting State shall be required to extend to a State making a reservation the benefit of the provisions to which such reservation applies’ and that ‘[a]ny State availing itself of this right shall notify the Secretary-General accordingly and the latter shall communicate this decision to all signatory and Contracting States’. An express statement is consequently necessary in order for the reservation to produce reciprocal effects (R. Riquelme Cortado, supra n 69, p 212 (fn 44)). 78 A. Pellet, Eighth Report on reservations to treaties, A/CN.4/535 and Add.1, para. 69. 79 In his Fourth Report, the Special Rapporteur proposed draft Art. 18, para. 1, providing: ‘A reservation permitted by the terms of the treaty is effective without further acceptance by the interested States, unless the treaty otherwise provides’ (supra n 30, p 50; emphasis added). Contrary to the English text, the French version of draft Art. 18, para. 1 seems to imply that no acceptance at all is necessary in order for the reservation to produce its effects: ‘Lorsqu'une réserve est autorisée par les termes d'un traité, elle produit effet sans que son acceptation par les Etats intéressés soit nécessaire, à moins que le traité n'en dispose autrement’ (ACDI, 1966, vol. II, p 53; emphasis added). 80 Draft Art. 18, para. 2(b), proposed by Sir Humphrey Waldock in 1962 (First Report, A/CN.4/144, supra n 6, p 61). 81 YILC, 1966, vol. II, p 207, para. 18 (emphasis added). 82 See infra paras 66–73. 83 ICJ Reports 1951, pp 21–2. 84 See supra n 14. 85 Article 10, para. 5 of Brierly's draft is indeed limited to implied acceptance (infra paras 34–7) which, in the opinion of the Special Rapporteur, was ‘universally accepted’ (YILC, 1950, vol. II, pp 241–2). 86 See supra paras 5–6. See also Sir Humphrey Waldock, First Report, A/CN.4/144, supra n 6, pp 66–7, para. 14. 87 Draft Art. 18, para. 3, First report, A/CN.4/144, supra n 6, p 61; draft Art. 19, para. 5, Fourth Report, A/CN.4/177, supra n 30, p 50. 88 First Report, A/CN.4/144, supra n 6, p. 67, para. 15. 89 A/CONF.39/C.1/L.127, Documents of the Conference (A/CONF.39/11/Add.2), supra n 41, p 136, para. 179(vi)(a). 90 See supra paras 24–7 and infra paras 66–74. 91 Official Records of the General Assembly, 64th session, Supplement No. 10 (A/64/10), p 213. 92 Summary Records (A/CONF.39/11), supra n 40, 21th meeting, 10 April 1968, p 108, para. 13. See also infra paras 41–2. J. M. Ruda suggests however that the United States amendment highlights the ‘residual character of Article 20, paragraph 5’ (‘Reservations to Treaties’, RCADI, 1975-III, vol. 146, pp 95–218 at p 185). 93 See the commentary on Art. 19, at para. 34. 94 See Art. 18 of the 1960 Paris Convention on Nuclear Third Party Liability or Art. 13 of the 1959 European Convention on Compulsory Insurance against Civil Liability in respect of Motor Vehicles. 95 See Art. 23, para. 3, and its commentary, at paras 91–7. 96 First Report, A/CN.4/144, supra n 6, p 61. 97 Fourth Report, A/CN.4/177, supra n 30, p 45 and p 53, para. 17. 98 Official Records of the General Assembly, 57th session, Supplement No. 10 (A/57/10), pp 80–93. 99 See infra paras 56–7. 100 Draft Art. 18, para. 3(b) of Sir Humphrey's First Report expressed the same rule as an exception to the 12-month period: a State which at the time of such communication was not a party to the treaty shall not be deemed to have consented to the reservation if it shall subsequently lodge an objection to the reservation, when executing the act or acts necessary to qualify it to

become a party to the treaty (A/CN.4/144, supra n 6, p 61). 101 See draft Art. 18, para. 3(c)(i) of Sir Humphrey's First Report (ibid, p 61). 102 Official Records of the General Assembly, 64th session, Supplement No. 10 (A/64/10), p 212. 103 See, however, the criticisms expressed by some States quoted by D. W. Greig, supra n 60, p 121. 104 R. Riquelme Cortado, supra n 69, pp 220–1. The author based her considerations largely on the work of the ILC's Special Rapporteur on unilateral acts of States concerning the significance of silence (Fourth Report on unilateral acts, A/CN.4/519, paras 25 ff). 105 See infra paras 63–5. 106 Supra n 76, p 126. 107 See supra paras 5–6. 108 First Report, A/CN.4/144, supra n 6, pp 66–7, para. 14 of the commentary on draft Art. 18. 109 Ibid, p 67, para. 16. 110 Ibid. 111 A/CONF.39/C.1/L.166, Documents of the Conference (A/CONF.39/11/Add.2), supra n 41, p 136, para. 179(v)(f) (Australia); A/CONF.39/C.1/L.115, ibid, p 133, para. 175(a) (USSR). 112 P.-H. Imbert, supra n 2, p 107. 113 See supra para. 32. 114 Cf P.-H. Imbert, ‘A l'occasion de l'entrée en vigueur de la Convention de Vienne sur le droit des traités. Réflexions sur la pratique suivie par le Secrétaire général des Nations Unies dans l'exercice de ses fonctions de dépositaire’, AFDI, 1980, vol. 26, pp 524–41; G. Gaja, supra n 60, pp 323–4; R. Riquelme Cortado, supra n 69, pp 245–50. 115 Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, ST/LEG/7/Rev.1, p 55, para. 185. 116 Ibid, pp 54–5, paras 184–7. 117 Letter from the Legal Counsel of the United Nations to the Permanent Representatives of UN Member States, 4 April 2000, LA41TR/221 (23.1). See also A. Pellet, Fifth Report, A/CN.4/508, supra n 66, para. 322. 118 Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, ST/LEG/7/Rev.1, p 63, para. 213. 119 Summary Records (A/CONF.39/11), supra n 40, 22nd meeting, 11 April 1968, p 116, para. 14. 120 A/CN.4/535/Add.1, supra n 78, para. 69. 121 Twelfth Report on reservations to treaties, A/CN.4/584, para. 195. 122 R. Riquelme Cortado, supra n 69, p 213. 123 Award of 30 June 1977, RIAA, vol. XVIII, p 33, para. 39. 124 See A. Pellet, Eighth Report, A/CN.4/535, supra n 78, paras 83 ff. 125 See the declarations and communications made by Australia, Canada, Denmark, France, Malta, New Zeland, the United Kingdom, and Thailand in relation to reservations formulated to Art. 11, para. 1 of the 1961 Vienna Convention on diplomatic relations. Indeed, these statements express only the understanding that the reservations cannot be considered ‘as modifying any rights or obligations under that paragraph’ (Multilateral Treaties deposited with the Secretary-General (available at: http://treaties.un.org/), ch. III, 3). See also the communications made by the United Kingdom, Norway, and Greece in relation to the declaration of Cambodia concerning the Convention on the International Maritime Organization (ibid, ch. XII, 1), or the German declaration in relation to the Portuguese reservation to Art. 1 of additional protocol no. 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, according to which the ‘reservation cannot affect the general principles of international law which require prompt, adequate and effective compensation in respect of the expropriation of foreign property’ (available at: http://conventions.coe.int/). 126 See eg the Austrian reaction to the reservation formulated by Malaysia to the New York Convention on the Rights of the child (Multilateral Treaties deposited with the SecretaryGeneral (available at: http://treaties.un.org/), ch. IV, 11), or the communication of the United States of America concerning the reservations formulated by Colombia to the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (ibid, ch. VI, 19). The formulation of the Dutch declaration in relation to the reservation formulated by Bahrain to Art. 27, para. 3 of the Vienna Convention on diplomatic relations is more ambiguous: The Kingdom of the Netherlands does not accept the declaration by the State of Bahrain concerning Article 27, paragraph 3 of the Convention. It takes the view that this provision remains in force in relations between it and the State of Bahrain in accordance with international customary law. The Kingdom of the Netherlands is nevertheless prepared to agree to the following arrangement on a basis of reciprocity: If the authorities of the receiving state have serious grounds for supposing that the diplomatic bag contains something which pursuant to Article 27, paragraph 4 of the

Convention may not be sent in the diplomatic bag, they may demand that the bag be opened in the presence of the representative of the diplomat mission concerned. If the authorities of the sending state refuse to comply with such a request, the diplomatic bag shall be sent back to the place of origin. (ibid, ch. III, 3) The awkward ‘objection’ of the United Kingdom to the reservation formulated by the United States upon consenting to be bound by Protocol III to the 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects is also a good example of some kind of ‘conditional’ acceptance: …this reservation appears to be contrary to the object and purpose of the Protocol insofar as the object and purpose of the Protocol is to prohibit/restrict the use of incendiary weapons per se. On this reading, the United Kingdom objects to the reservation as contrary to the object and purpose of the Protocol. The United States has, however, publicly represented that the reservation is necessary because incendiary weapons are the only weapons that can effectively destroy certain counter-proliferation targets, such as biological weapons facilities, which require high heat to eliminate the biotoxins. The United States has also publicly represented that the reservation is not incompatible with the object and purpose of the Protocol, which is to protect civilians from the collateral damage associated with the use of incendiary weapons. The United States has additionally stated publicly that the reservation is consistent with a key underlying principle of international humanitarian law, which is to reduce risk to the civilian population and civilian objects from harms flowing from armed conflict. On the basis that (a) the United States reservation is correctly interpreted as a narrow reservation focused on the use of incendiary weapons against biological weapons, or similar counter-proliferation, facilities that require high heat to eliminate the biotoxins, in the interests of preventing potentially disastrous consequences for the civilian population, (b) the United States reservation is not otherwise intended to detract from the obligation to take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimising incidental loss of civilian life, injury to civilians and damage to civilian objects, and (c) the object and purpose of the Protocol can properly be said to be to protect civilians from the collateral damage associated with the use of incendiary weapons, the United Kingdom would not object to the reservation as contrary to the object and purpose of the Protocol. (ibid, ch. XXVI, 2) 127 A. Pellet, Eighth Report, A/CN.4/535, supra n 78, para. 70. 128 With regard to the 1961 Vienna Convention, the Netherlands declared that they: accept the reservation made by the Yemen Arab Republic concerning the Articles 46, paragraph 1, and 49 of the Convention only in so far as it does not purport to exclude the husbands of female members of the consular posts from enjoying the same privileges and immunities under the present Convention (Multilateral Treaties deposited with the Secretary-General. (available at: http://treaties.un.org/, ch. III, 3) Yemen responded and clarified: [The Government of Yemen] should like to make clear in this connection that it was our country's intention in making that reservation that the expression ‘family of a member of the consular post’ should, for the purposes of enjoyment of the privileges and immunities specified in the Convention, be understood to mean the member of the consular post, his spouse and minor children only. [The Government of Yemen] should like to make it clear that this reservation is not intended to exclude the husbands of female members of the consular posts, as was suggested in the Netherlands interpretation, since it is natural that husbands should in such cases enjoy the same privileges and immunities. (ibid) 129 L. Lijnzaad, supra n 70, p 54. 130 See infra paras 49 ff. 131 See the Dutch declaration to the reservation formulated by Venezuela to the Geneva Convention on the Territorial Sea and the Contiguous Zone (Multilateral Treaties deposited with the Secretary-General (available at: http://treaties.un.org/), ch. XXI, 1), the declarations made by Canada, Spain, the United Kingdom, and the United States in reaction to the French reservation to the Geneva Convention on the Continental Shelf (ibid, ch. XXI, 4), and the British declaration concerning the reservation formulated by the Republic of Korea to the Covenant on Civil and Political Rights (ibid, ch. IV, 4). See also the reactions of Belgium, Denmark, Luxemburg, Norway, and Sweden to the restrictive application advocated by Turkey of former Art. 25 of the European Convention on Human Rights (reproduced in European Court of Human Rights, Loizidou v Turkey, Judgment, Preliminary Objections, Series A, no. 310, paras 19–22 and 24). 132 See infra para. 64. 133 M. Coccia, ‘Reservations to Multilateral Treaties on Human Rights’, California Western Int'l LJ, 1985, vol. 15, pp 1–51 at pp 34–5; G. Gaja, supra n 60, p 315; D. P. O'Connell, International Law (2nd edn, London: Stevens & Sons, 1970), p 235; B. Simma, ‘Reservations to Human Rights Treaties—Some Recent Developments’ in Liber Amicorum Professor SeidlHohenveldern—in Honour of his 80th Birthday (The Hague: Kluwer, 1998), p 664. See also F.

Horn, supra n 76, p 133; and L. S. Boudreault, ‘Les réserves apportées au Protocole additionnel I aux Conventions de Genève sur le droit humanitaire’, Revue québécoise de droit international, 1989–90, vol. 6, pp 105–19 at p 119. 134 See, however, supra paras 45–6. 135 A/CN.4/535, supra n 78, para. 98. Proposed draft guideline 2.6.1 (Definition of objections to reservations) was formulated in the following way: ‘Objection’ means a unilateral statement, however phrased or named, made by a State or an international organization in response to a reservation to a treaty formulated by another State or international organization, whereby the State or organization purports to prevent the application of the provisions of the treaty to which the reservation relates between the author of the reservation and the State or organization which formulated the objection, to the extent of the reservation, or to prevent the treaty from entering into force in the relations between the author of the reservation and the author of the objection. 136 A. Pellet, Ninth Report on reservations to treaties, A/CN.4/544, para. 22. New proposed draft guideline 2.6.1 provided: ‘Objection’ means a unilateral statement, however phrased or named, made by a State or an international organization in response to a reservation to a treaty formulated by another State or international organization, whereby the State or organization purports to modify the effects expected of the reservation [by the author of the reservation]. 137 Official Records of the General Assembly, 60th session, Supplement No. 10 (A/60/10), p 186. 138 Ibid, para. 1 of the commentary on draft guideline 2.6.1. 139 Eighth Report, A/CN.4/535, supra n 78, para. 79. 140 Supra n 123, p 33, para. 39. 141 Official Records of the General Assembly, 58th session, Supplement No. 10 (A/58/10), p 160, para. 348. 142 See supra n 135. 143 See the summary presented by the Special Rapporteur in his Ninth Report (A/CN.4/544, supra n 136, paras 7 and 8). 144 On this alleged ‘super-maximum’ effect of an objection, see infra para. 118. 145 For this reason, the ILC Special Rapporteur insisted on keeping the formulation ‘to modify the legal effects of the reservation’ (Official Records of the General Assembly, 59th session, Supplement No. 10 (A/59/10), p 245, para. 293(d)). See also G. Gaja, supra n 60, p 325. 146 Eighth Report, A/CN.4/535, supra n 78, para. 84. 147 See also the examples given supra in paras 45–7, as well as those given by the Special Rapporteur in his Eighth Report, A/CN.4/535, supra n 78, paras 84–8. 148 Ibid, para. 91. 149 See also supra n 125. 150 A. Pellet, Eighth Report, A/CN.4/535, supra n 78, para. 91. 151 See also supra n 131. 152 See supra n 126. 153 Eighth Report, supra n 78, para. 91. See also R. Riquelme Cortado, supra n 69, p 295. 154 See also the critics to this solution, supra paras 46–7. 155 Official Records of the General Assembly, 60th session, Supplement No. 10 (A/60/10), p 202. 156 Cf draft guideline 1.4.3 (Statements of non-recognition) and the commentary thereto (Official Records of the General Assembly, 54th session, Supplement No. 10 (A/54/10), pp 275– 80). See also F. Horn, supra n 76, p 136. 157 The draft guideline 2.9.2 (Opposition to an interpretative declaration), adopted in first reading qualifies the ‘negative’ reaction to an interpretative declaration as ‘opposition’ (opposition) (Official Records of the General Assembly, 64th session, Supplement No. 10 (A/64/10), p 215). 158 ICJ Reports 1951, p 30. 159 Official Records of the General Assembly, 63rd session, Supplement No. 10 (A/63/10), pp 189–93. The formulation of this draft guideline was extensively debated within the Commission. As its commentary makes clear (ibid, paras 3 and 4), some members were of the view that only contracting States are allowed to make objections, whereas other States, including those entitled to become a party to the treaty, could, at best, formulate declarations of their intent to object. This point of view confuses the qualification of a given statement with its possible legal effects. The Special Rapporteur's proposal did not contain any distinction between potential authors of objections. His draft guideline 2.6.5 was formulated in the following way: An objection to a reservation may be formulated by:

(i) Any contracting State and any contracting international organization; and (ii) Any State and any international organization that is entitled to become a party to the treaty. (Eleventh Report, A/CN.4/574, para. 84) Draft guideline 2.6.5 (Author) constitutes certainly a workable compromise, even if it is questionable whether an objection formulated by a State entitled to become a party to the treaty is deprived of any legal effect. 160 It is, however, questionable whether legal effects other than those provided for by the Vienna Convention, as the ‘super-maximum’ effect or the ‘intermediary’ effect, may apply automatically. At the Commission's 61st session (2009), Special Rapporteur Alain Pellet proposed, despite the clear conclusions in its Fourteenth Report on reservations to treaties (A/CN.4/614/Add.1, paras 119 and 127), draft guideline 3.4.2 (Official Records of the General Assembly, 64th session, Supplement No. 10 (A/64/10), p 190, fn 370), which was adopted, with some modifications, by the Commission during its 62nd session (2010):

3.4.2 Permissibility of an objection to a reservation An objection to a reservation by which a State or an international organization purports to exclude in its relations with the author of the reservation the application of provisions of the treaty to which the reservation does not relate is only permissible if: (1) The additional provisions thus excluded have a sufficient link with the provisions to which the reservation relates; and (2) The objection would not defeat the object and purpose of the treaty in the relations between the author of the reservation and the author of the objection. (Official Records of the General Assembly, 65th session, Supplement No. 10 (A/65/10), pp 87– 8) For the question of objections with ‘intermediary’ effects, see the commentary on Art. 21, at paras 51–9. 161 First Report, A/CN.4/144, supra n 6, pp 65–6, para. 10. 162 ICJ Reports 1951, p 24. 163 This provision reads: An objection to a reservation by a State which considers it to be incompatible with the object and purpose of the treaty precludes the entry into force of the treaty as between the objecting and the reserving State, unless a contrary intention shall have been expressed by the objecting State. (YILC, 1962, vol. II, p 167) See also the commentary on Art. 19, at paras 18–19. 164 A/CONF.39/C.1/L.127, Documents of the Conference (A/CONF.39/11/Add.2), supra n 41, p 136, para. 179(v)(d). 165 Summary Records (A/CONF.39/11), supra n 40, 21st meeting, 10 April 1968, p. 108, para. 11. See also the criticisms expressed by Australia (ibid, 22nd meeting, 11 April 1968, p 118, paras 47–9), Japan (ibid, 21st meeting, 10 April 1968, p 110, para. 29), the Philippines (ibid, p 112, para. 58), the United Kingdom (ibid, p 114, para. 74), Switzerland (ibid, p 111, para. 41), and Sweden (ibid, 22nd meeting, 11 April 1968, p 117, para. 32). 166 For a more detailed presentation of both schools, see the commentary on Art. 19, at paras 49 ff. 167 See ibid, at para. 176. See also A. Pellet, Tenth Report on reservations to treaties, A/CN.4/558 and Add.1 and 2, paras 52 and 183–7, and draft guideline 3.3 (Consequences of the non-permissibility of a reservation), Official Records of the General Assembly, 64th session, Supplement No. 10 (A/64/10), p 220. 168 See Art. 21, para. 1 of the Vienna Convention. 169 D. W. Bowett, supra n 1, p 88. 170 See A. Pellet, Tenth Report, A/CN.4/558, supra n 167, para. 200. 171 See, however, ibid, paras 204–7. 172 Official Records of the General Assembly, 65th session, Supplement No. 10 (A/65/10), p 181. See also draft guidelines 3.3.2 (Effect of individual acceptance of an impermissible reservation) (ibid, p 81) and 4.5.3 (Reactions to an invalid reservation) (ibid, p 209). 173 Contra P.-H. Imbert, supra n 2, p 88. 174 Summary Records (A/CONF.39/11), supra n 40, 25th meeting, 16 April 1968, p 133, para. 3. 175 See supra n 162. See also M. Coccia, supra n 133, pp 8–9; R. W. Edwards, Jr, ‘Reservations to Treaties’, Michigan J Int'l L, 1989, vol. 10, pp 362–402 at p 397; L. Lijnzaad, supra n 70, p 51; K. Zemanek, ‘Some Unresolved Questions Concerning Reservations in the Vienna Convention on the Law of Treaties’ in J. Makarczyk (ed.), Essays in International Law in Honour of Judge Manfred Lachs (The Hague: Kluwer, 1984), p 333. 176 ICJ Reports 1951, p 21. See also supra n 65. 177 F. Horn, supra n 76, p 121; Ch. Tomuschat, supra n 72, p 466.

178 Ibid. 179 G. Gaja, ‘Il regime della Convenzione di Vienna concernente le reserve inammissibili’ in Studi in onore di Vincenzo Starace (Naples: Ed. Scientifica, 2008), pp 349–61. B. Simma, supra n 133, p 663. See also A. Pellet, Fifteenth Report on reservations to treaties, A/CN.4/624 and Add.1 and 2, paras 386–402. 180 See infra paras 99–107 and 116–18. 181 F. Horn, supra n 76, p 121. 182 See guideline 3.3.2 (Nullity of invalid reservations) proposed by the Special Rapporteur in 2005, Tenth Report, A/CN.4/558 and Add.1 and 2, para. 200. 183 See proposed guideline 3.3.3 (Effect of unilateral acceptance of an invalid reservation), ibid, para. 202. See, however, proposed guideline 3.3.4 (Effect of collective acceptance of an invalid reservation), ibid, para. 207. 184 Official Records of the General Assembly, 65th session, Supplement No. 10 (A/65/10), p 86. 185 See A. Pellet, Fifteenth Report, A/CN.4/624, supra n 179, paras 501–14. The ILC adopted in 2010 draft guideline 4.5.3 (Reactions to an invalid reservation) according to which: ‘The nullity of an invalid reservation does not depend on the objection or the acceptance by a contracting State or a contracting organization’ (Official Records of the General Assembly, 65th session, Supplement No. 10 (A/65/10), p 209). 186 See supra n 183 and the observations of the Danish government on draft Art. 19 adopted in first reading: ‘Where, however, a reservation is such as is prohibited by the treaty, expressly or impliedly, another party cannot accept it and equally is not called upon to object to it in order to prevent it from becoming effective’ (YILC, 1965, vol. II, p 46). 187 See the commentary on guideline 4.5.3 (Reactions to an invalid reservation), Official Records of the General Assembly, 65th session, Supplement No. 10 (A/65/10), pp 212–14, paras 10–15. See also infra para. 119. 188 See supra para. 26. 189 YILC, 1966, vol. II, p 202. The commentaries are very short and not really enlightening on this issue (ibid, p 207, para. 18). 190 F. Horn, supra n 76, p 132. 191 See the commentary to Art. 19, at paras 83 ff. 192 Ch. Tomuschat, supra n 72, p 475. 193 See in particular the intervention of the representatives of India (Summary Records (A/CONF.39/11), supra n 40, 24th meeting, 16 April 1968, p 128, para. 30), of the United States (ibid, p 130, para. 53), and of Ethiopia (ibid, 25th meeting, 16 April 1968, p 134, para. 15). 194 See the Swiss amendment (A/CONF.39/C.1/L.97), the French and Tunisian amendment (A/CONF.39/C.1/L.113), and the amendment proposed by Thailand (A/CONF.39/C.1/L.150) (Documents of the Conference (A/CONF.39/11/Add.2), supra n 41, p 134, para. 179(ii)(b)–(d)). 195 By 55 votes to 18, and 12 abstentions (Summary Records (A/CONF.39/11), supra n 40, 25th meeting, 16 April 1968, p 135, para. 30). 196 Ibid, 24th meeting, 16 April 1968, pp 126–7, para. 14. 197 See guideline 3.1.3 (Permissibility of reservations not prohibited by the treaty): Where the treaty prohibits the formulation of certain reservations, a reservation which is not prohibited by the treaty may be formulated by a State or an international organization only if it is not incompatible with the object and purpose of the treaty. (Official Records of the General Assembly, 61st session, Supplement No. 10 (A/61/10), pp 350– 4) P.-H. Imbert presents however the opinion that these reservations are also comprised in the expression ‘expressly authorized reservations’. He suggests that Art. 20, para. 1 does not restrict the right of contracting States to object to expressly authorized reservations, but expressed only the idea that the reserving State becomes a party once it deposits its instrument of ratification or accession (‘La question des réserves dans la décision arbitrale du 30 juin 1977 relative à la délimitation du plateau continental entre la République française et le Royaume-Uni de Grande-Bretagne et d'Irlande du Nord’, AFDI, 1978, vol. 24, pp 29–58 at pp 52–7). The author does not dispute that his solution is in open contradiction to the text of Art. 20. He nevertheless suggests that it is justified by the travaux of the Vienna Conference. 198 This purely literal interpretation has been adopted by the Inter-American Court of Human Rights in its Advisory Opinion dated 24 September 1982 concerning the Effect of Reservations on the Entry into Force of the American Convention on Human Rights (Arts. 74 and 75) (OC-2/82), Series A, no. 2). See also L. Lijnzaad, supra n 70, p 47; G. Gaja, supra n 60, pp 321–2; R. Riquelme Cortado, supra n 69, pp 217–18. 199 See also Art. 26 of the 1957 European Convention on Extradition, or Art. 23 of the 1959 European Convention on Mutual Assistance in Criminal Matters, and the even more general provision of Art. 19 of the 1950 Convention on the declaration of death of missing persons. 200 Supra n 123, p 32, para. 39. 201 Ibid. 202 L. Lijnzaad, supra n 70, p 46. The author suggests that the use of different terminologies

in Art. 19(b) and Art. 20, para. 1 ‘must be taken to be the result of inaccurate drafting’. 203 Cf the commentary on Art. 19, at paras 83 ff. 204 Such reservations do not need to pass the object and purpose test of Art. 19(c), contrary to generally authorized reservations (see A. Pellet, Tenth Report, A/CN.4/558, supra n 167, para. 46). 205 See also P.-H. Imbert, supra n 197, p 53. The author asserts that the concepts are equivalent. He suggests, however, interpreting the concept of ‘specific reservation’ closer to the meaning of ‘expressly authorized reservations’. 206 Official Records of the General Assembly, 61st session, Supplement No. 10 (A/61/10), p 323. 207 The commentary underlines that ‘the Commission favoured the word “envisaged” over the word “authorized” to qualify the reservations in question, in contrast to the expression “reservation expressly authorized”, as found in article 20, paragraph 1, of the Vienna Conventions’ (ibid, pp 342–3, para. 3; see also p 350, para. 13). 208 Ibid, p 324. 209 Ibid, p 356, para. 6. 210 F. Horn, supra n 76, p 133. See also D. W. Bowett, supra n 1, p 85. 211 This kind of clause can be found in a great number of treaties. Article 20 of the 1930 Hague Convention relating to the Conflict of Nationality Laws authorizes States to exclude, by reservations, the application of one or more provisions of the convention (Arts 1 to 17 and 21). Very frequently, treaties authorize reservations in order to reject dispute-settlement provisions (see the list established by P.-H. Imbert, supra n 2, p 169, fn 27 and R. Riquelme Cortado, supra n 69, pp 135–6). 212 Revised General Act for the Pacific Settlement of International Disputes, Art. 38; European Convention for the Peaceful Settlement of Disputes, Art. 34. ILO's Social Security (Minimum Standards) Convention (C102) combines the possibility of excluding the application of entire chapters with a minimum number of chapters that need to be effectively applied (Art. 2). See also Art. 2 of the Invalidity, Old-Age and Survivors' Benefits Convention (ILO, C128), Art. 20 of the European Social Charter, or Art. 2 of the 1964 European Code of Social Security. See in addition R. Riquelme Cortado, supra n 69, p 134. 213 For further consideration concerning this concept, see the commentary on draft guideline 1.1.8 (Reservations made under exclusionary clauses) (Official Records of the General Assembly, 55th session, Supplement No. 10 (A/55/10), pp 230–41, and in particular para. 11), and P.-H. Imbert, supra n 2, pp 196 ff; W. Paul Gormley, ‘The Modification of Multilateral Conventions by Means of “Negotiated Reservations” and Other “Alternatives”: A Comparative Study of the ILO and Council of Europe’, Part I, Fordham L Rev, 1970–71, vol. 39, pp 59–80 at pp 75–6. 214 See in particular the practice of the Council of Europe in R. Riquelme Cortado, supra n 69, pp 130 ff. 215 See also guideline 4.1.1 (Establishment of a reservation expressly authorized by a treaty): 1. A reservation expressly authorized by a treaty does not require any subsequent acceptance by the other contracting States and contracting organizations, unless the treaty so provides. 2. A reservation expressly authorized by a treaty is established with regard to the other contracting States and contracting organizations if it was formulated in accordance with the required form and procedures. (Official Records of the General Assembly, 65th session, Supplement No. 10 (A/65/10), p 116) 216 D. W. Bowett, supra n 1, p 84; M. Coccia, supra n 133, p 9. 217 D. W. Bowett, supr n 1, pp 84–5. 218 See in particular the position of P.-H. Imbert, supra n 197, pp 54–7. 219 A/CONF.39/C.1/L.169 and Corr.1. Paragraph 2 of the draft Article proposed by France in order to replace Arts 16 and 17 of the ILC draft provided: ‘A reservation expressly authorized by the treaty cannot be the subject of an objection by other contracting States unless the treaty so provides’ (Documents of the Conference (A/CONF.39/11/Add.2), supra n 41, p 133, para. 175(b)). 220 P.-H. Imbert concluded that the rejection of this amendment was due to the fact that the represented States did not want to limit their right to object to expressively authorized reservations (supra n 197, p 55). This interpretation seems however to be excessive. 221 The difference is particularly noticeable when a treaty authorizes determined reservations, on the one hand, and any other reservation not specially provided for under the treaty, on the other hand (eg Art. 50 of the Single Convention on Narcotic Drugs (1961), or Arts 3 and 13 of the 1959 European Convention on Compulsory Insurance against Civil Liability in respect of Motor Vehicles). 222 Report on the Law of Treaties, A/CN.4/101, supra n 15, p 130, para. 97. 223 YILC, 1962, vol. I, 663rd meeting, 18 June 1962, p 228, para. 92. See also the explanation by Sir Humphrey during the Vienna Conference, Summary Records (A/CONF.39/11/Add.1), supra n 53, 10th plenary meeting, 29 April 1969, p 34, para. 72. 224 G. G. Fitzmaurice (draft Art. 38, Report on the Law of Treaties, A/CN.4/101, supra n 15, p 115); Sir Humphrey Waldock (draft Art. 1(d), First Report, A/CN.4/144, supra n 6, p 31). Draft

Art. 20, para. 3, as adopted in first reading in 1962, applies according to its terms to treaties ‘concluded between a small group of States’ (YILC, 1962, vol. II, p 176). 225 A/CN.4/177 and Add.1 and 2, supra n 30, p 51, para. 7. 226 Draft Art. 19, para. 2, ibid, p. 50. 227 See P.-H. Imbert, supra n 2, pp 112–13, and the amendment proposed by the United States in order to delete any reference to criteria other than intention (Summary Records (A/CONF.39/11), supra n 40, 21st meeting, 10 April 1968, p 108, para. 9). 228 P.-H. Imbert, supra n 2, pp. 112–13. See also infra para. 82. 229 Fourth Report, A/CN.4/177 and Add.1 and 2, supra n 30, p 51, para. 7 in fine. 230 On the notion of ‘object and purpose of the treaty’, see the commentary on Art. 19, at paras 104 ff. 231 Ch. Tomuschat, supra n 72, p 479; P.-H. Imbert, supra n 2, pp 114–15. 232 See Art. 2, para. 1(g) of the Vienna Convention. 233 Official Records of the General Assembly, 65th session, Supplement No. 10 (A/65/10), p 121. See also A. Pellet, Fourteenth Report on reservations to treaties, A/CN.4/614 and Add.1 and 2, paras 230 and 233. 234 Ibid, para. 231. 235 YILC, 1962, vol. II, p 67, para. 16. 236 First Report, A/CN4.4/144, supra n 6, pp 61–2. 237 See supra paras 8 and 9. 238 H. G. Schermers, ‘The Suitability of Reservations to Multilateral Treaties’, Nederlands Tijdschrift voor Internationaal Recht, 1959, vol. 6, pp 350–61 at pp 353–5. 239 See P.-H. Imbert, supra n 2, p 122; M. H. Mendelson, ‘Reservations to the Constitutions of International Organizations’, BYBIL, 1971, p 151. 240 See the proposal of Switzerland (A/CONF.39/C.1/L.97, Documents of the Conference (A/CONF.39/11/Add.2), supra n 41, p 135, para. 179(iv)(b)), and of France and Tunisia (A/CONF.39/C.1/L.113, ibid, para. 179(iv)(c)). 241 Summary Records (A/CONF.39/11), supra n 40, 22nd meeting, 11 April 1968, p 116, para. 16. See also the explanations given by Switzerland (ibid, 21st meeting, 10 April 1968, p 111, para. 40), by Tunisia (ibid, para. 45), and by Italy (ibid, 22nd meeting, 11 April 1968, p 120, para. 77). The representative of the USSR proposed the deletion of para. 3, but for a different reason: ‘Paragraph 3 of the Commission's Article 17 [20] should also be deleted, since the sovereign right of States to formulate reservations could not be made dependent on the decisions of international organizations’ (ibid, 21st meeting, 10 April 1968, p 107, para. 6). 242 A/CN.4/144 and Add.1 and 2, supra n 6, p 61. Draft Art. 18, para. 4(c) reads: ‘In the case of a plurilateral or multilateral treaty which is the constituent instrument of an international organization, the consent of the organization, expressed through a decision of its competent organ, shall be necessary to establish the admissibility of a reservation not specifically authorized by such instrument, and to constitute the reserving State a party to the instrument’ (draft Art. 18, para. 4(c)). 243 A/CN.4/177 and Add.1 and 2, supra n 30, p 50: Draft Art. 19, para. 3 reads: ‘Subject to Article 3 (bis) [5], when a treaty is a constituent instrument of an international organization, acceptance of a reservation shall be determined by the competent organ of the international organization’. 244 See in particular the position of the USSR, supra n 241. 245 For a summary of this case, see P.-H. Imbert, supra n 2, pp 123–4; O. Schachter, ‘The Question of Treaty Reservations at the 1959 General Assembly’, AJIL, 1960, vol. 54, pp 372–9; M. H. Mendelson, supra n 239, pp 162–9; and J. M. Ruda, supra n 92, pp 153–6. 246 YILC, 1962, vol. II, p 176. The provision is different from the one proposed by the Special Rapporteur, and the report does not explain the modifications made (commentary on Art. 20, ibid, p 181, para. 25). 247 Fourth Report, A/CN.4/177, supra n 30, pp 51–2, para. 8. 248 Ibid, p 45. 249 The Commission was indeed aware of the fact that Art. 5 would be sufficient to resolve the issue of a reservation to a constituent instrument of an international organization: The Commission noted that the question would be partially covered by the general provision now included in article 4 regarding the rules of international organizations. But it considered the retention of the present paragraph to be desirable to provide a rule in cases where the rules of the international organization contain no provision touching the question (YILC, 1966, vol. II, p 207, para. 20 of the commentary on Art. 17). 250 Official Records of the General Assembly, 64th session, Supplement No. 10 (A/64/10), pp 238–42, in particular, p 242, para. 9. 251 First Report, A/CN.4/470, supra n 5, p 148, para. 137. 252 See eg the 1944 International Civil Aviation Organization (ICAO) Convention, or the UN Convention on the Law of the Sea (UNCLOS). Within the latter, the issue of reservations has been ‘solved’ by Art. 309 prohibiting reservations to the convention. A. Pellet, ‘Les réserves

aux conventions sur le droit de la mer’, in La mer et son droit, Mélanges offerts à Laurent Lucchini et Jean-Pierre Quéneudec (Paris: Pedone, 2003), pp 501–20. 253 See the intervention by S. Rosenne, YILC, 1965, vol. I, 798th meeting, 9 June 1965, p 159, para. 44. 254 Official Records of the General Assembly, 64th session, Supplement No. 10 (A/64/10), pp 242–3. 255 A/CONF.39/C.1/L.3, Documents of the Conference (A/CONF.39/11/Add.2), supra n 41, p 135, para. 179(iv)(a). 256 A/CONF.39/C.1/L.162, ibid, para. 179(iv)(e). 257 See also M. H. Mendelson, supra n 239, pp 152–3; P.-H. Imbert, supra n 2, p 131; H. G. Schermers, supra n 238, p 355. 258 Official Records of the General Assembly, 64th session, Supplement No. 10 (A/64/10), pp 246–9. The text of this guideline, adopted in first reading, differs from the Austrian proposal during the Vienna Conference (see supra n 255). See ibid, pp 247–9, paras 3–6 of the commentary on guideline 2.8.10. 259 A/CONF.39/C.1/L.127, Documents of the Conference (A/CONF.39/11/Add.2), supra n 41, p 135, para. 179(iv)(d). 260 By 33 votes to 22, with 29 abstentions, Summary Records (A/CONF.39/11), supra n 42, 25th meeting, 16 April 1968, p 135, para. 32. 261 Summary Records (A/CONF.39/11), supra n 40, 72nd meeting, 15 May 1968, p 426, para. 14. The US representative explained that: in view of the drafting difficulties that the idea in the amendment would cause if it was to be adopted to the provisions of article 17 [20], his delegation was ready to agree that its amendment should not be included in the article. His delegation's position on the idea in the amendment remained unchanged, however. The situation with which it dealt remained covered by the general rules of existing international law (ibid, p 425, para. 12). 262 Draft guideline 2.8.9 (Modalities of the acceptance of a reservation to a constituent instrument), Official Records of the General Assembly, 64th session, Supplement No. 10 (A/64/10), pp 243–6, and in particular para. 7 of its commentary. See also, for an account of the corresponding practice of the Secretary-General, Summary of Practice of the SecretaryGeneral as Depositary of Multilateral Treaties, ST/LEG/7/Rev.1, pp 59–60, paras 197–203. 263 Official Records of the General Assembly, 64th session, Supplement No. 10 (A/64/10), pp 250–1. 264 P.-H. Imbert considers in this regard: La clause restrictive dans le texte ‘à moins qu'il n'en dispose autrement’, ainsi que le commentaire de la C.D.I. suivant lequel ‘elle a considéré qu'il était opportun de conserver le présent paragraphe afin qu'une règle soit applicable dans le cas où la réglementation d'une organisation internationale ne contiendrait aucune disposition en la matière’, sont des euphémismes. (supra n 2, p 129, fn 209) 265 See eg Art. 1 of the Covenant of the League of Nations; Art. 16 of the World Intellectual Property Organization (WIPO) Convention; Art. IX, s 2(a) of the IFC Statute. 266 See also Thirteenth Report on reservations to treaties, A/CN.4/614/Add.2, paras 244–50 and guideline 4.2.1 (Status of the author of an established reservation) proposed by the Special Rapporteur. 267 Ibid, paras 239–42 and guideline 4.2.3 (Effects of the entry into force of a treaty on the status of the author of an established reservation) proposed by the Special Rapporteur. 268 Official Records of the General Assembly, 65th session, Supplement No. 10 (A/65/10), p 126. 269 See guideline 4.2.2 (Effect of the establishment of a reservation on the entry into force of a treaty), para. 1: When a treaty has not yet entered into force, the author of a reservation shall be included in the number of contracting States and contracting organizations required for the treaty to enter into force once the reservation is established. (ibid, p 130) Paragraph 2 of guideline 4.2.2 takes account of the slightly different practice of some depositaries, and in particular the UN Secretary-General, consisting in including a reserving State in the list of contracting States on the date of ratification, ie before the reservation has been accepted, or is deemed to have been accepted, by at least one contracting State (see also supra para. 43). The ILC, however, did not recognize that these practices have changed the general rule (ibid, pp 131–2, paras 4–6 of the commentary on guideline 4.2.2). 270 ibid, p 132. 271 A/CONF.39/C.1/L.127, Documents of the Conference (A/CONF.39/11/Add.2), supra n 41, p 136, para. 179(v)(d). See also the amendment proposed by Switzerland, limited to impermissible reservations under Art. 19(a) and (b) (A/CONF.39/C.1/L.97, ibid, para. 179(v) (c)). 272 G. Gaja, supra n 179, pp 349–61, esp. p 356. See also the UK observations on HRC General Comment No. 24, Report of the Human Rights Committee, 1995, A/50/40, vol. I, p 163, para. 13.

273 D. W. Greig, supra n 60, p. 52. 274 See also supra paras 18–22. 275 The Special Rapporteur on the topic of reservations to treaties, proposed in his Tenth Report to include in the Guide of practice a guideline 3.3.3 (Effect of unilateral acceptance of an invalid reservation) stating: ‘Acceptance of a reservation by a contracting State or by a contracting international organization shall not change the nullity of the reservation’ (A/CN.4/558/Add.2, para. 202). See also supra para. 64. 276 Interhandel (Switzerland v United States of America), Preliminary Objections, Dissenting Opinion of Sir Hersch Lauterpacht, ICJ Reports 1959, p 95 at p 117. 277 See also Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, ST/LEG/7/Rev.1, p 57, paras 191–2 and guideline 2.1.8 (Procedure in case of manifestly impermissible reservations), Official Records of the General Assembly, 61st session, Supplement No. 10 (A/61/10), pp 359–61. 278 YILC, 1997, vol. II, p 57, para. 157 (point 10 of the Preliminary Conclusions). 279 Report of the Human Rights Committee 1995 (A/50/40), vol. I, p 164, para. 13; and ibid, 1996 (A/51/10), p 106, paras 12–14. 280 D. W. Bowett, supra n 1, p 77. 281 See in particular the criticism expressed by D. W. Greig (supra n 60, pp 54–6) who, otherwise, shares the outcome of the approach. See also J. Klabbers, ‘Accepting the Unacceptable? A New Nordic Approach to Reservations to Multilateral Treaties’, Nordic J Int'l L, 2000, vol. 69, pp 179–93 at p 184. 282 Supra n 60, p 57. The author is more sceptical with regard to reservations which are not ‘in clear conflict with the terms of [the] treaty’ and considers in this regard that ‘[t]here is less reason why the reserving State should not be able to contend that its acceptance of the treaty was conditional upon its exemption from certain obligations in the treaty covered by the reservation’ (ibid, p 59). 283 Application No. 10328/83, Series A, no. 132, p 1. 284 Ibid, para. 60. 285 Application No. 15318/89, Series A, no. 370, para. 95. 286 General Comment No. 24, CCPR/C/21/Rev.1/Add.6, 11 November 1994, para. 18. 287 HRI/MC/2007/5, para. 19. The solution proposed by the ICJ in its 1951 Advisory Opinion is, in this regard, too categorical. Indeed, the Court concluded that: a State which has made and maintained a reservation which has been objected to by one or more of the parties to the Convention but not by others, can be regarded as being a party to the Convention if the reservation is compatible with the object and purpose of the Convention; otherwise, that State cannot be regarded as being a party to the Convention. (ICJ Reports 1951, p 29) 288 Official Records of the General Assembly, 65th session, Supplement No. 10 (A/65/10), p 192. 289 See A. Pellet, Fifteenth Report, A/CN.4/624, supra n 179, paras 455–82. 290 A. Pellet, Eighth Report, A/CN.4/535, supra n 78, para. 95. See also R. Riquelme Cortado, supra n 69, pp 279–80; F. Horn, supra n 76, at pp 170–2. 291 Guideline 4.3.2 (Entry into force of the treaty between the author of a reservation and the author of an objection) emphasizes this specific relationship between acceptance and objection with regard to the entry into force of the treaty: The treaty enters into force between the author of a valid reservation and the objecting contracting State or contracting organization as soon as the author of the reservation has become a contracting State or a contracting organization in accordance with guideline 4.2.1 [ie the reservation has been accepted] and the treaty has entered into force. (Official Records of the General Assembly, 65th session, Supplement No. 10 (A/65/10), p 150.) 292 See the authorities quoted supra n 290. 293 P.-H. Imbert, supra n 2, pp 155 and 260. 294 See supra paras 89–101. See also guideline 4.3.3 (Non-entry into force of the treaty for the author of a reservation when unanimous acceptance is required) (Official Records of the General Assembly, 65th session, Supplement No. 10 (A/65/10), forthcoming). 295 On this issue, see the commentaries to draft Art. 20, para. 2(b), in YILC, 1962, vol. II, p 181, para. 23. 296 Quite often, this solution has been presented as the only possible one. See, eg, P. Reuter, Introduction au droit des traités (2nd edn, Paris: Armand Colin, 1985), p 75, para. 132. 297 The Court has considered: As no State can be bound by a reservation to which it has not consented, it necessarily follows that each State objecting to it will or will not, on the basis of its individual appraisal within the limits of the criterion of the object and purpose stated above, consider the reserving State to be a party to the Convention. (ICJ Reports 1951, p 26, emphasis added)

298 See Mr Tounkine, YILC, 1962, vol. I, 653rd meeting, 29 May 1962, p 156, para. 26, and 654th meeting, 30 May 1962, p 161, para. 11; Mr Rosenne, ibid, 653rd meeting, 29 May 1962, pp 156–7, para. 30; Mr Jiménez de Aréchaga, ibid, p 158, para. 48; Mr de Luna, ibid, p 160, para. 66; Mr Yasseen, ibid, 654th meeting, 30 May 1962, p 161, para. 6. The Special Rapporteur was also in favour of the presumption (ibid, p 162, paras 17 and 20). 299 Ibid, vol. II, p 176 and p 181, para. 23 of the commentary. 300 See Fourth Report, A/CN.4/177, supra n 30, pp 48–9. 301 YILC, 1965, vol. I, 799th meeting, 10 June 1965, p 167, para. 39 (Mr Tounkine); ibid, 813th meeting, 29 June 1965, p 268, para. 62 (Mr Lachs). 302 Cf supra para. 14. 303 Summary Records (A/CONF.39/11/Add.1), supra n 53, 10th plenary meeting, 29 April 1969, p 34, para. 74. See also P.-H. Imbert, supra n 2, pp 156–7. 304 F. Horn, supra n 76, pp 172–3. 305 C. Redgwell suggests that ‘[t]here may be many reasons for such avoidance, including the reluctance of smaller States to oppose the entry into force of a convention between themselves and a more powerful reserving State’ (‘Universality or Integrity? Some Reflections on Reservations to General Multilateral Treaties’, BYBIL, 1993, vol. 64, pp 245–82 at p 277). See also P.-H. Imbert, supra n 2, p 158. Mr Bevans, US representative at the Vienna Conference, expressed his concern that ‘those amendments [aimed at reversing the presumption in Article 17 [20], paragraph 4 b] might place small States at a disadvantage’ (Summary Records (A/CONF.39/11), supra n 40, 24th meeting, 16 April 1968, p 142, para. 58). F. Horn suggests however that ‘[t]his danger is perhaps exaggerated’ (supra n 76, p 172). 306 R. Riquelme Cortado, supra n 69, p 283. 307 eg the objection of Italy to the reservation of Burundi to the 1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, Multilateral Treaties Deposited with the Secretary-General (available at: http://treaties.un.org/), ch. XVIII, 7. See also the objections made by Israel and the United Kingdom (ibid). 308 Multilateral Treaties Deposited with the Secretary-General (available at: http://treaties.un.org/), ch. III, 2. 309 Ibid. 310 See in particular the objection of Belgium to the reservations formulated by Egypt and Cambodia to the Vienna Convention on diplomatic relations, or the German objection to several reservations to the same Convention (ibid, ch. III, 3). It is, however, noteworthy that all these German objections consider the reservations to be ‘incompatible with the letter and spirit of the Convention’, but only some of them preclude, according to the German government's declarations, the entry into force of the Convention with regard to the reserving States. An important number of examples can be found in the objections made by Belgium, Denmark, Finland, Italy, the Netherlands, Norway, Portugal, Spain, and Sweden to reservations formulated to the Covenant on Civil and Political Rights, and in particular the objections to the reservation formulated by the United States of America to Art. 6 (ibid, ch. IV, 4). All the objecting States consider that the reservation is incompatible with the object and purpose of the treaty but did not, however, preclude the entry into force of the Covenant between themselves and the United States. The examples are not limited to human rights instruments: see eg the objections of Austria, Germany, France, and Italy to the reservation formulated by Vietnam to the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (ibid, ch. VI, 19). 311 K. Zemanek, supra n 175, p 331. 312 See supra n 299. 313 See, however, the doubts expressed by Mr Tsuruoka: ‘In other words, would an objection to such a reservation merely preclude the entry into force of the treaty between the objecting and reserving states, while theoretically a state maintaining the invalid reservation could not be a party to the treaty?’ (YILC, 1962, vol. I, 654th meeting, 30 May 1962, p 163, para. 22). See also Mr Bartoš, ibid, paras 28–9. 314 See supra para. 100. 315 Guideline 4.5.3 (Reactions to an invalid reservation) clearly emphasizes this peculiar outcome: The nullity of an invalid reservation does not depend on the objection or the acceptance by a contracting State or a contracting organization. (Official Records of the General Assembly, 65th session, Supplement No. 10 (A/65/10), forthcoming.) 316 See R. Riquelme Cortado, supra n 69, pp 300–5. 317 Multilateral Treaties deposited with the Secretary-General (available at: http://treaties.un.org/), ch. IV, 8. For further recent examples, see the Austrian, Czech, Dutch, and Swedish objections to the reservation formulated by El-Salvador to the 2006 Convention on the Rights of Persons with Disabilities (ibid, ch. IV, 15), or the Slovak objection to the reservation formulated by Pakistan to the Covenant on Economic, Social and Cultural Rights (ibid, ch. IV, 3). For further examples, see R. Riquelme Cortado, supra n 69, pp 300–5. 318 See in particular, B. Simma, supra n 133, pp 667–8.

319 The Court of Arbitration in the Anglo-French Continental Shelf case considered indeed that ‘To attribute such an effect to the rejection of the reservations is not easy to reconcile with the principle of mutuality of consent in the conclusion of treaties’ (supra n 123, p 42, para. 60). 320 See also supra para. 109. * Researcher at the Centre de Droit international (CEDIN) de Nanterre, Université Paris Ouest, Nanterre–La Défense Paris, France; Consultant in public international law.

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Volume I, Part II Conclusion and Entry into Force of Treaties, s.2 Reservations, Art.20 1986 Vienna Convention Daniel Müller From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties

(p. 535) 1986 Vienna Convention Article 20 Acceptance of and objection to reservations 1. A reservation expressly authorized by a treaty does not require any subsequent acceptance by the contracting States and contracting organizations or, as the case may be, by the contracting organizations unless the treaty so provides. 2. When it appears from the limited number of the negotiating States and negotiating organizations or, as the case may be, of the negotiating organizations and the object and purpose of a treaty that the application of the treaty in its entirety between all the parties is an essential condition of the consent of each one to be bound by the treaty, a reservation requires acceptance by all the parties. 3. When a treaty is a constituent instrument of an international organization and unless it otherwise provides, a reservation requires the acceptance of the competent organ of that organization. 4. In cases not falling under the preceding paragraphs and unless the treaty otherwise provides: (a) acceptance of a reservation by a contracting State or by a contracting organization constitutes the reserving State or international organization a party to the treaty in relation to the accepting State or organization if or when the treaty is in force for the reserving State or organization and for the accepting State or organization; (b) an objection by a contracting State or by a contracting organization to a reservation does not preclude the entry into force of the treaty as between the objecting State or international organization and the reserving State or organization unless a contrary intention is definitely expressed by the objecting State or organization; (c) an act expressing the consent of a State or of an international organization to be bound by the treaty and containing a reservation is effective as soon as at least one contracting State or one contracting organization has accepted the reservation. 5. For the purposes of paragraphs 2 and 4, and unless the treaty otherwise provides, a reservation is considered to have been accepted by a State or an international organization if it shall have raised no objection to the reservation by the end of a period of twelve months after it was notified of the reservation or by the date on which it expressed its consent to be bound by the treaty, whichever is later.

Bibliography See the general bibliography of the commentary on Articles 19 and 20 of the 1969 Vienna Convention 1. Like the other provisions concerning reservations to treaties, Article 20 of the 1986 Vienna Convention is, despite some drafting modifications adding international organizations, identical to the 1969 Vienna Convention text. However, the elaboration of Article 20 was not an easy task. 2. The ‘flexible’ regime established by the ILC in the 1960s was not put into question as such. Special Rapporteur, Paul Reuter, considered the 1969 Convention provisions concerning reservations as being ‘clearly one of the principal parts of the Convention, on account of both their technical preciseness and the great flexibility which they have (p. 536) introduced into the regime of multilateral conventions’.1 Reuter has consequently proposed including the case of treaties between States and international organizations into the general ‘flexible’ regime of the 1969 Convention, including the rules concerning acceptances and objections,2 despite his doubts with regard to the practical interest of this solution,3 on the one hand, and the more difficult issue whether an international organization should be put on an equal footing with sovereign States with regard to reservations,4 on the other hand. 3. After difficult discussions concerning the issue whether international organizations can reasonably be assimilated to States, which is by no means specific to reservations, the Special Rapporteur changed his initial position and introduced a discriminatory distinction between those subjects of international law. This new approach was not limited to the question of the faculty to formulate reservations,5 but also included the possibility of accepting reservations or objecting to them. For greater clarity of wording, the provisions of the draft corresponding to article 20 of the Vienna Convention of 1969 were divided into three distinct provisions: draft Article 20 embodied rules concerning acceptance of reservations to treaties concluded between international organizations,6 and was closely aligned to the ‘flexible’ regime of Article 20 of the 1969 Convention; draft Article 20bis related to acceptance of reservations to treaties between States and one or more international organizations, and imposed a more restricted regime for organizations, while adopting the ‘flexible’ regime for States; draft Article 19ter contained the relevant provisions concerning the issue of objections which is dealt with ‘in the 7

same way as that of reservations’.7 4. After a difficult debate8 and in view of the critical observations made by States and certain international organizations, the ILC decided to come back, in second reading, to the solution initially proposed by the Special Rapporteur merely assimilating international organizations to States. In particular, it was highlighted that ‘the distinctions made by the Commission lacked logical justification and employed imprecise criteria’.9 In addition, concerning more directly draft Article 19ter concerning objections, it has been said (p. 537) that ‘the rules laid down in that article were pointless, complicated and ambiguous’.10 Even if, in the opinion the Special Rapporteur, ‘the provisions of the [1969] Vienna Convention have not eliminated all… difficulties’,11 the Commission preferred to align its draft Article 20 to the corresponding provision of the 1969 Convention introducing only necessary drafting modifications. 5. The three material differences between the 1969 text of Article 20 and the ILC draft were eliminated one by one by the Commission or by the 1986 Conference. The absence of a provision corresponding to paragraph 3 of the 1969 Convention text concerning constituent instruments of international organizations was corrected in 1982 after the adoption of Article 5.12 The Vienna Conference re-established, by partially rejecting the ILC proposal, the reference to the limited number of negotiation parties concerning ‘restricted’ treaties in paragraph 213 in order to ‘improve the text, bringing it closer into line with that of the 1969 Vienna Convention’.14 Finally, following several amendments in this vein,15 the Conference also changed paragraph 5 of Article 20 as proposed by the ILC in order to reintroduce the time limit of 12 months for making an objection for States and international organizations.16 The Commission had previously considered that this time limit was not adequate for international organizations and that ‘practice would have no great difficulty in producing remedies for the prolongation of a situation whose drawbacks should not be exaggerated’.17 *

DANIEL MÜLLER

Footnotes: 1 Fourth Report on the question of treaties concluded between States and international organizations or between two or more international organizations, A/CN.4/285, YILC, 1975, vol. II, p 36, para. 1 of the commentary on section 2. See also Mr Calle y Calle (YILC, 1975, vol. I, 1348th meeting, 10 July 1975, p 239, para. 54) and Mr Pinto (ibid, 1349th meeting, 11 July 1975, p 242, para. 15). 2 See the commentary on Art. 20 of the 1969 Convention. 3 In the ILC's commentaries to the final draft adopted in 1982, the Commission changed its position with regard to this point and admitted that ‘there are a certain number of cases in which such questions [concerning reservations to treaties between States and international organizations] have arisen’ (YILC, 1982, vol. II, Part Two, p 32, para. 2 of the general commentary on section 2; see also P. Reuter, Tenth Report on the question of treaties concluded between States and international organizations or between two or more international organizations, A/CN.4/341 and Add.1, YILC, 1981, vol. II, Part One, pp 56–7, paras 55–8). 4 Fourth Report, A/CN.4/285, supra n 1, pp 36–7. See also the presentation by the Special Rapporteur of his Fourth Report (YILC, vol. I, 1348th meeting, 10 July 1975, pp 237–9, paras 39–45) and his Fifth Report, A/CN.4/290 and Add.1, YILC, 1976, vol. II, Part One, pp 138–9, para. 8. 5 On this issue, see the commentary on Art. 19 (1986). 6 YILC, 1977, vol. II, Part Two, pp 111–12. 7 P. Reuter, Tenth Report, A/CN.4/341 and Add.1, supra n 3, p 56, para. 54. See also the commentary of the Chairman of the Drafting Committee, YILC, 1977, vol. I, 1446th meeting, 24 June 1977, p 168, para. 9: ‘Article 19ter, which was a new article, regrouped the provisions concerning objection by a State or an international organization to a reservation in the case of the two types of treaty dealt with in the draft’. 8 Concerning more specifically draft Art. 20, see YILC, 1981, vol. I, 1651st and 1652nd meetings, 14 and 15 May 1981, pp 44–53; 1692nd meeting, 16 July 1981, pp 263–4. 9 YILC, 1982, vol. II, Part Two, p 34, para. 11. 10 Ibid. 11 P. Reuter, Tenth Report, A/CN.4/341 and Add.1, supra n 3, p 56, para. 53 (quoting P.-H. Imbert, Les réserves aux traités multilatéraux (Paris: Pedone, 1979) and ‘La question des réserves dans la décision arbitrale du 30 juin 1977 relative à la délimitation du plateau continental entre la République française et le Royaume-Uni de Grande-Bretagne et d'Irlande du Nord’, AFDI, 1978, vol. 24, pp 29–58). 12 YILC, 1982, vol. II, Part Two, p 36, para. 3 of the commentary on draft Art. 20. See also the discussions held within the ILC, ibid, vol. I, 1727th meeting, 15 June 1982, pp 177–8, paras 14– 20. 13 See the Austrian amendment (A/CONF.129/C.1/L.33, United Nations Conference on the Law of Treaties between States and International Organizations or between International Organizations, Official Records, Documents of the Conference, Vienna, 18 February–21 March 1986 (A/CONF.129/16/Add.1), p 70, para. 70(c)(i)). 14 Ibid, Summary Records of the Plenary Meetings and of the Meetings of the Committee of the Whole, Vienna, 18 February–21 March 1986 (A/CONF.129/16), 5th plenary meeting, 18 March 1986, p 14, para. 57 (Al-Khasawneh (Chairman of the Drafting Committee)). 15 China (A/CONF.129/C.1/L.18), Austria (A/CONF.129/C.1/L.33), and Cape Verde

(A/CONF.129/C.1/L.35), Documents of the Conference (A/CONF.129/16/Add.1), supra n 13, p 70, para. 70(a), (c), and (d). See also the Australian amendment (A/CONF.129/C.1/L.32), finally withdrawn (ibid, para. 70(b)). 16 For the debate, see Summary Records (A/CONF.129/16), supra n 14, 12th to 14th meetings, 27 and 28 February 1986, pp 99–119. 17 YILC, 1982, vol. II, Part Two, p 36, paras 5 and 6 of the commentary on Art. 20. * Researcher at the Centre de Droit international (CEDIN) de Nanterre, Université Paris Ouest, Nanterre–La Défense Paris, France; Consultant in public international law.

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Volume I, Part II Conclusion and Entry into Force of Treaties, s.2 Reservations, Art.21 1969 Vienna Convention Daniel Müller From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Treaties, reservations and declarations — Treaties, entry into force — Customary international law — State practice — Travaux préparatoires — Pacta sunt servanda

(p. 538) 1969 Vienna Convention Article 21 Legal effects of reservations and of objections to reservations 1. A reservation established with regard to another party in accordance with articles 19, 20 and 23: (a) modifies for the reserving State in its relations with that other party the provisions of the treaty to which the reservation relates to the extent of the reservation; and (b) modifies those provisions to the same extent for that other party in its relations with the reserving State. 2. The reservation does not modify the provisions of the treaty for the other parties to the treaty inter se. 3. When a State objecting to a reservation has not opposed the entry into force of the treaty between itself and the reserving State, the provisions to which the reservation relates do not apply as between the two States to the extent of the reservation. A. General characteristics 539

Travaux préparatoires of Article 21 539 The customary status and the uncertainties of Article 21 542 B. The effects of an established reservation (paragraph 1) 543 The notion of ‘established reservation’ 544 The relation between the author of the reservation and the other parties in regard to which the reservation is established 545 The content of the treaty relation between the author of the reservation and the other parties 545 The reciprocity issue 548 C. The effects of objections 551 The partial non-application of the treaty 552 The non-application of the provisions to which the reservation relates: the effect of simple or ‘minimum effect’ objections 553 The case of ‘intermediary effect’ objections 558 The non-application of the treaty 562 D. The relation between the other parties inter se (paragraph 2) 563

Bibliography See the general bibliography concerning reservations in Article 19. Baratta, R., Gli effetti delle riserve ai trattati (Milan: Guiffrè, 1999) Imbert, P.-H., ‘La question des réserves dans la décision arbitrale du 30 juin 1977 relative à la délimitation du plateau continental entre la République française et le Royaume-Uni de Grande-Bretagne et d'Irlande du Nord’, AFDI, 1978, vol. 24, pp 29–58 Migliorino, L., ‘Effetti giuridici delle obiezioni a riserve incompatibili con l'oggetto e lo scopo del trattato’, RDI, 1994, vol. 77, pp 635–54 Reuter, P., ‘Solidarité et divisibilité des engagements conventionnels’ in Y. Dinstein (ed.), International Law at a Time of Perplexity—Essays in Honour of Shabtai Rosenne (Dordrecht: Martinus Nijhoff, 1999), pp 623–34 (reprinted in P. Reuter, Le développement du droit international—Écrits de droit international (Paris: 1995), pp 361–73) (p. 539) Ruda, J. M., ‘Los efectos juridicos de las reservas a los tratados multilaterales’, Inter-American Juridical Yearbook, 1982, pp 1–67 Teboul, G., ‘Remarques sur les réserves aux conventions de codification’, RGDIP, 1982, vol. 86, pp 679–717 Verhoeven, J., ‘Droit des traités, réserves et ordre public (jus cogens)’, JT, 1994, vol. 113, pp 765–8

A. General characteristics Travaux préparatoires of Article 211 1. Compared to the drafting of the other provisions concerning reservations to treaties, the drafting of Article 21 of the Vienna Convention was relatively easy. Neither the ILC nor the Vienna Conference met serious difficulties in formulating the rules of paragraphs 1 and 2. The issue of the legal effects of an established reservation requires the same responses and solutions under the traditional unanimity system and the revolutionary ‘flexible’ regime2 of the

Vienna Convention. 2. Although the first Special Rapporteur on the law of treaties, J. L. Brierly, did not devote a specific draft Article to the question of the effects of a reservation, it was nevertheless implied in paragraph 1 of draft Article 10 that a reservation is ‘limiting or varying the effect of [the] treaty in so far as concerns the relations of [the author of the reservation] with one or more of the existing or future parties to the treaty’.3 This definition of reservations already included its potential effects, an approach which was later adopted in the Vienna Convention, Article 2, paragraph 1(d): ‘reservation’ means a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State.4 This demonstrates that the purported effects of a reservation constitute a substantive element5 of its definition,6 or, to use the words of G. G. Fitzmaurice, third Special Rapporteur on the law of treaties: Only those reservations which involve a derogation of some kind from the substantive provisions of the treaty concerned are properly to be regarded as such, and the term reservation herein is to be understood as limited in that sense.7 (p. 540) 3. In 1956,8 G. G. Fitzmaurice proposed for the first time a standalone provision on the legal effects of a reservation. The first two paragraphs of his draft Article 409 are indeed very close to present Article 21. It is worth noting that the rules thus codified seemed to be self-evident. G. G. Fitzmaurice did not comment on his draft and explained that ‘it is considered useful to state these consequences, but they require no explanation’.10 4. In Waldock's drafts, the provision concerning the effects of a reservation ‘established as admissible’11 had always had its place and suffered only some minor drafting changes. Neither Sir Humphrey nor the Commission considered it necessary to comment extensively on the rules and asserted only that ‘[t]hese rules, which appear not to be disputed, follow directly from the consensual basis of treaty regulations’.12 5. However, the question of the legal effects of a reservation which had been the object of an objection was not so easily solved. Logically, it did not require an elaborate response under the traditional unanimity system: an objection jeopardized unanimity and prevented the reserving State from becoming a party to the treaty. Neither J. L. Brierly nor G. G. Fitzmaurice dealt with the legal effects of objections, and H. Lauterpacht only touched on it in his de lege ferenda proposals.13 6. In his First Report, Sir Humphrey also did not consider it necessary to deal with the issue of the effects of an objection. Indeed, according to his draft Article 19, paragraph 4(c), an objection simply prevented the entry into force of the treaty in the bilateral relationship between the reserving State and the author of the objection.14 During the first reading, this categorical solution was changed into a mere presumption: an objection prevents the entry into force of the treaty except when the contrary intention has been definitely expressed by the author.15 However, this important modification created the new problem of identifying the concrete content of the treaty relation between the author of the objection and the reserving State when the treaty effectively enters into force. It had not been addressed in the ILC draft adopted in first reading, a gap which troubled only a small number of States commenting on the draft.16 7. However, the observations of the United States17 on the issue attracted Sir Humphrey's attention. Even if the case of a ‘minimum effect’ objection was considered ‘unusual’18—which was certainly true at that time—the United States observed that it would nevertheless be necessary to include a provision indicating: (p. 541) Where a State rejects or objects to a reservation but considers itself in treaty relations with the reserving State, the provisions to which the reservation applies shall not apply between the two States.19 8. These observations convinced Sir Humphrey that it was indeed necessary to address the issue in the draft. However, the Special Rapporteur had some doubts about the question whether such a legal effect could be produced by a sole objection, eg the unilateral will of the objecting State, or whether the consent of the reserving State was necessary. He proposed a slightly differently worded paragraph putting the emphasis on the mutual consent of the States concerned: Where a State objects to the reservation of another State, but the two States nevertheless consider themselves to be mutually bound by the treaty, the provision to which the reservation relates shall not apply in the relations between those States.20 9. The discussion concerning this paragraph was intense. Even if the majority of the members were convinced that it was necessary, or even ‘indispensable’,21 to address the issue22 ‘in order to forestall ambiguous situations’,23 opinions were divided on the legal basis of the effects of an objection on the treaty relationship. Whereas the proposal of the Special Rapporteur gave much importance to the consent of both States, the US proposal seemed to suggest that the provided effect was the result only of the unilateral act of the objecting State, ie the objection, leaving the reserving State without any choice. Both views had their supporters within the Commission.24 The draft adopted unanimously by the ILC25 remains eloquently neutral on this point, and shows that it had not been decided by the Commission. The Special Rapporteur indeed considered that ‘he was able to agree with both currents of

opinion’ given the fact that: ‘the practical effect of either of the two versions would be much the same and in that particular situation both States would probably be ready to regard the treaty as being in force between them without the reserved provisions.26 (p. 542) 10. During the Vienna Conference, Article 21 was not the object of lengthy discussions. A modification in paragraph 3 was necessary in order to take account of the reversal of the presumption in Article 20, paragraph 4(b),27 but did not change the substance of the rule.28

The customary status and the uncertainties of Article 21 11. The scant attention paid by the Commission and by the Conference to the rules contained in paragraphs 1 and 2 of Article 21 shows that these rules formed already at that time part of international customary law. This is far less evident with regard to paragraph 3. Certainly, its drafting did not create any insurmountable difficulties, and the ILC members quickly agreed on an acceptable formula. However, paragraph 3 was hardly the product of codification:29 it has been proposed, drafted, and inserted into the ILC's draft Articles in order to address the situation of the entry into force of the treaty notwithstanding an objection to a reservation and ‘in order to forestall ambiguous situations’.30 The Commission's commentary underlines that paragraph 3 had been drafted ‘for the sake of completeness’.31 12. Today, the customary value of Article 21, including paragraph 3, is largely recognized.32 The Court of Arbitration in the Anglo-French Continental Shelf case corroborated this status. Even if it did not apply paragraph 3 as such, it came to the same result.33

References 13. The extensive acceptance of the rules contained in Article 21 cannot remove the uncertainties concerning the legal effects of reservations, acceptances, and objections. It is not the content of Article 21 which is questionable, but its lacunae. Article 21 is far from being comprehensive and does not contain guiding rules and principles for some thorny problems. 14. Thus, Article 21, like all other provisions on reservations in the Convention, does not draw the necessary consequences of the non-validity of a reservation.34 In this (p. 543) regard, it is particularly disturbing that the scope of paragraph 3 concerning the combined effect of a reservation and a ‘minimum effect’ objection is not limited only to valid reservations, as is the case with paragraph 1. Professor Gaja considered in this regard that ‘Article 21 is somewhat obscure’.35 15. In addition, in State practice the situation provided for under paragraph 3 no longer constitutes an ‘unusual’36 case, but addresses the now usual type of objections.37 It is all the more worrying that, in their practice concerning reservations and objections, States do not limit their objections to the legal effects provided by paragraph 3, but increasingly assert their objections with different legal effects.38 The all too neutral position of the ILC, concerned with finding consensus among its members, did not entirely solve the problem, but instead created new ones.

B. The effects of an established reservation (paragraph 1) 16. Paragraph 1 of Article 21 codifies the ‘normal’ effects of an ‘established’ reservation. It determines the content of the treaty relationship between the reserving State and an individual State in regard to which the reservation has been established, ie in principle the States having accepted the reservation, and distinguishes these treaty relations from those entertained by the other contracting States inter se. In both cases, the legal effects (or the absence of any specific legal effects) of the established reservation on the treaty relationship ‘follow directly from the consensual basis of the relations between parties to a treaty’.39 17. The inevitable consequence of the ‘flexible’ system adopted by the ILC and the Vienna Conference is the breakup of the treaty into multiple legal relationships with variable contents, or, as Mr Coccia put it, into a ‘patchwork of different rights and obligations among the various contracting States’.40 This fragmentation of the legal regimes might seem undesirable,41 but is a necessary consequence of every reservation. Even under the traditional unanimity system, an established reservation split up the treaty into the relationship between the reserving State and all other contracting States (necessarily identical because of the unanimity requirement), on the one hand, and the treaty relations binding the other contracting States inter se. The elimination of unanimity is simply multiplying the legal relationships and their contents, beside the unaffected relationship between the other contracting States inter se.

(p. 544) The notion of ‘established’ reservation 18. What is an ‘established’ reservation able to produce its ‘normal’ effects? This issue is solved by the renvoi in the introductory sentence of paragraph 1 to the provisions concerning the substantive validity or permissibility (Art. 19), formal requirements (Art. 23), and the consent requirement (Art. 20). The renvoi confirms that a reservation can produce its normal effects only if it satisfies the formal validity requirements and the permissibility conditions, and only with regard to those States which have accepted or are considered to have accepted the reservation. A reservation is ‘established’ only if all these conditions are fulfilled.42 19. However, the renvoi to Articles 20 and 23 is badly drafted. It is indeed difficult to see any link between the establishment of a reservation and an objection which does not prevent the

treaty from entering into force, according to Article 20, paragraph 4(b). Obviously, an objection, even a ‘minimum effect’ objection, cannot establish a reservation in the sense of Article 21, paragraph 1, given that its very object is to ‘exclude or to modify the legal effects of the reservation, or to exclude the application of the treaty as a whole, in relations with the reserving State or organization’.43 In addition, the reference to Article 23 is equally clumsy, to say the least. Article 23, paragraphs 3 and 4 concern the withdrawal of a reservation and the confirmation of an acceptance or an objection. They cannot have any effect on the establishment of a reservation. 20. The renvoi to Article 19 confirms, however, that only a permissible reservation is capable of producing its ‘normal’ effects provided for under Article 21, paragraph 1. It corroborates that permissibility and opposability of a reservation are two distinct concepts,44 and is one of the most important arguments advanced by the supporters of the permissibility school. The validity of a reservation is not dependent on the will of the other contracting parties, expressed through their acceptance, as has been affirmed by the supporters of the opposability school.45 An acceptance cannot ‘permit’ a reservation which is, and remains, contrary to Article 19. This fact precludes an impermissible reservation, accepted or not, to be established in the sense of Article 21 and to produce the effects provided for under this provision. It is null and void46 and cannot therefore modify or alter the legal effects of the treaty in one sense or another, even if, unfortunately, this (p. 545) ‘effect’ is not specifically mentioned in the Vienna Convention47 given the fact that the Vienna regime deals only with the effects of valid reservations.48 21. It might be surprising that only paragraph 1 contains a renvoi to Articles 19, 20, and 21. The absence of a corresponding sentence in paragraph 2, however, can easily be explained: the relationship between the contracting States inter se, excluding the reserving State, are absolutely not affected by the formulation or the establishment of the reservation, and this independently of its permissibility or opposability.49 The silence of paragraph 3 is much more unexpected, especially if it is true that it is only applicable to valid reservations,50 and leads to important uncertainties in the application of this provision.51

The relation between the author of the reservation and the other parties in regard to which the reservation is established 22. Paragraph 1 of Article 21 determines the content of the bilateral relationship created by the establishment of the reservation between the reserving State, on the one hand, and the States in respect of which the reservation is established, on the other hand, if the treaty is or enters effectively into force.

The content of the treaty relation between the author of the reservation and the other parties 23. An established reservation, ie a reservation which is permissible in accordance with Article 19, has been validly formulated, and has been consented to in accordance with Article 20, deploys all its legal effects in the relationship between the author of the reservation and the State in respect of which it is established, ie the State having accepted or deemed to have accepted the reservation. The object of the reservation is thus achieved in the sense that ‘the provisions of the treaty to which the reservation relates’ will be modified ‘to the extent of the reservation’ in the mutual relations between the two States concerned.52 This effect is directly based on ‘the consensual basis of the relations between parties to a treaty’.53 The offer to modify or to exclude the application of certain provisions of the treaty, ie the reservation, and its acceptance constitute a bilateral inter partes agreement modulating the legal effects of the treaty between its authors. 24. The verb ‘to modify’ used in paragraph 1 has to be interpreted broadly. It is indeed curious that neither the Commission nor the Vienna Conference deemed it necessary to align Article 21 with Article 2, paragraph 1(d), defining reservations as a unilateral statement whereby a State ‘purports to exclude or to modify the legal effect of certain provisions of the treaty’. However, Article 21, paragraph 1(a) and (b) specify clearly that the legal effects of the treaty will be modified ‘to the extent of the reservation’ (‘dans la mesure prévue par la réserve’). This includes both excluding reservations, whereby its author purports to exclude the application of a provision of the treaty, and limiting (p. 546) reservations aiming at restricting the legal effect of a provision of the treaty—or of the treaty as a whole54—in certain aspects only. 25. Article 21, paragraph 1 is also out of line with the definition of reservations with regard to another, more serious point. According to Article 21, paragraph 1, an established reservation modifies the ‘provisions of the treaty’, whereas, according to the definition of Article 2, a reservation purports to modify or exclude the ‘the legal effect of certain provisions of the treaty’. This inconsistency, which is more than a pure question of formulation, did not go unnoticed during the ILC discussions. Some members insisted that a reservation could not possibly change a provision of the treaty and proposed to replace ‘provision of the treaty’ with ‘application of the treaty’.55 Even if the text of Article 21 has not been changed, it is indeed more convincing to consider, like the Special Rapporteur on reservations to treaties, that: [i]n this respect, article 2, paragraph 1 (d), of the 1969 and 1986 Conventions is better drafted than article 21, paragraph 1. It is unclear how a reservation, which is an instrument external to the treaty, could modify a provision of that treaty. It might exclude or modify its application, i.e. its effect, but not the text itself, i.e. the provision.56 26. The definition of the term ‘reservation’ contained in Article 2, paragraph 1(d) of the

Convention seems, however, to be too limited when considering that a reservation purports to exclude or modify the legal effect of ‘certain provisions of the treaty’.57 In State practice, one can find numerous examples of across-the-board reservations purporting to limit or to exclude the application of a treaty as a whole under certain well-defined circumstances.58 Article 21, paragraph 1 is more open to this kind of reservation and provides simply that the established reservation modifies (or excludes) the effect of ‘the provisions of the treaty to which the reservation relates to the extent of the reservation’. Accordingly, an established across-theboard reservation modifies or excludes a specific aspect of the legal effect of all provisions of the treaty.59 27. In 2010, the ILC adopted, in first reading, guideline 4.2.4 (Effect of an established reservation on treaty relations) which reproduces in essence Article 21, paragraph 1, corrects its inconsistencies, and gives more detailed explanation for the cases of excluding reservations (paragraph 2) and modifying reservations (paragraph 3). It reads: 1. A reservation established with regard to another party excludes or modifies for the reserving State or international organization in its relations with that other party the legal effect of the provisions of the treaty to which the reservation relates or of the treaty as a whole with respect to certain specific aspects, to the extent of the reservation. (p. 547) 2. To the extent that an established reservation excludes the legal effect of certain provisions of a treaty, the author of that reservation has neither rights nor obligations under those provisions in its relations with the other parties with regard to which the reservation is established. Those other parties shall likewise have neither rights nor obligations under those provisions in their relations with the author of the reservation. 3. To the extent that an established reservation modifies the legal effect of certain provisions of a treaty, the author of that reservation has rights and obligations under those provisions, as modified by the reservation, in its relations with the other parties with regard to which the reservation is established. Those other parties shall have rights and obligations under those provisions, as modified by the reservation, in their relations with the author of the reservation.60 28. Whatever effects a reservation will finally develop, they can only be related to the treaty as such, as is apparent in the text of the Vienna Convention. An established reservation is not an autonomous unilateral act able to modify obligations, or rights, established outside the treaty.61 Judges Onyeama, Dillard, Jimenez de Arechaga, and Sir Humphrey Waldock underlined in their joint Dissenting Opinion in the Nuclear tests case that: in principle, a reservation relates exclusively to a State's expression of consent to be bound by a particular treaty or instrument and to the obligations assumed by that expression of consent. Consequently, the notion that a reservation attached to one international agreement, by some unspecified process, is to be superimposed upon, or transferred to another international instrument is alien to the very concept of a reservation in international law; and also cuts across the rules governing the notification, acceptance and rejection of reservations.62 The limited, relative effect of a reservation, in the sense that it can only modify or exclude the legal effect of provisions of the treaty in relation to which it has been formulated, is also confirmed by the pacta sunt servanda principle: a State cannot simply formulate a reservation to a given treaty in order to revoke legal obligations to which it has freely consented under another treaty.63

References 29. Just as a reservation may not alter the pre-existing treaty obligations of its author, it cannot modify other obligations of whatever nature to which its author is bound independently of the treaty. This becomes particularly clear with regard to reservations formulated to a provision reflecting a norm of customary international law:64 when established (p. 548) with regard to another party, the reservation produces its ‘normal’ effects provided for under Article 21, paragraph 1, and creates, between this party and its author, a specific normative regime derogating from the conventional norm within the treaty.65 However, the reservation cannot free its author from respecting the customary norm as such.66 The World Court has underlined in this regard that ‘no reservation could release the reserving party from obligations of general maritime law existing outside and independently of the [Continental Shelf] Convention’.67

References 30. Under these circumstances, is it still useful to formulate reservations to provisions reflecting customary norms? It certainly is. Even if a State cannot escape the customary norm as such and is still bound by it, it can preclude legal consequences which are attached to the ‘codified’ norm within the conventional regime, eg the compulsory nature of a disputeresolution mechanism. Furthermore, a reservation can demonstrate a State's disagreement with the specific formulation of the ‘codified’ norm. 31. In conclusion, an established reservation in the sense of Article 21, paragraph 1 cannot affect, modify, exclude, or alter anything other than the conventional relationship between the author of the reservation and the State in regard to which the reservation is established.

The reciprocity issue 32. Once the reservation is established in the sense of Article 21, paragraph 1 it cannot only be invoked by its author but also by the State in regard to which it has been established, ie the State having accepted it. The bilateral normative system created by the reservation applies, in principle, on the basis of reciprocity. As Sir Humphrey put it, ‘reservations always work both ways’.68 This principle is enshrined in Article 21, paragraph 1(b), according to which an established reservation modifies the legal effect of the provisions of the treaty to which the reservation relates to the extent of the reservation for the State in regard to which the reservation is established in its relations with the reserving State. Consequently, the reserving State is only bound by the treaty as modified by the established reservation, and it has lost the right to request compliance with the treaty provisions concerned by its reservation vis-à-vis any State having accepted it. Sir Humphrey affirmed in his First Report on the law of treaties: ‘[a] reservation operates reciprocally between the reserving State and any other party to the treaty, so that both are exempted from the reserved provisions in their mutual relations’.69 (p. 549) 33. The reciprocity of the legal effects of a reservation is not only grounded in ‘the consensual basis of the relations between parties to a treaty’,70 but constitutes a valuable principle to counterbalance the inequalities created by the reservation: States having assented to the reservation cannot be regarded as bound by more conventional obligations than the reserving State is ready to accept for itself.71 As such, the reciprocity of the legal effects of the reservation has a regulatory, or even dissuasive, effect on the largely recognized liberty to formulate reservations: the author of the reservation must keep in mind that its reservation not only produces effects in its favour, but also that it is taking the risk of the reservation being invoked to its detriment.72 The reciprocal application of reservations ‘contributes significantly to resolving the inherent tension between treaty flexibility and integrity’.73 34. Certain treaty provisions concerning reservations make specific74—or more general75— reference to the reciprocal application of reservations, even if, as such, these (p. 550) clauses are superfluous.76 Indeed, there is widespread support for the position that the reciprocal application of reservations is a general principle of law,77 and of automatic application requiring no specific provision or declaration by the accepting State in this sense.78 When drafting Article 21, the ILC eliminated any imprecision softening this automatic application.79

References 35. Yet, the principle of reciprocity is not absolute. Although it certainly constitutes the general rule, it is accompanied by some important exceptions80 governed by the content of the reservation or the nature of the treaty provisions concerned. Indeed, the reciprocity principle cannot be applied in a situation where a re-balancing of the obligations assumed by the reserving State and those of a State in regard to which the reservation is established is not necessary or impossible to achieve. This is the case, for instance, where a reservation purports to exclude or modify the legal effect of the provisions of a treaty in order to take due account of a specific situation present only within the territory of its author81 or reservations purporting to restrict the territorial application of a treaty.82 The principle can also be expressly limited or modified by the treaty.83 More often, however, the reciprocity principle is impossible to apply because of the nature, object, and purpose of the treaty obligation. If a treaty is not based on the reciprocity of rights and obligations, a reservation cannot have such an effect either. This is the case, for instance, of human rights conventions:84 a State having accepted a reservation formulated by another State is no longer free not to respect this obligation given the fact that the obligations and rights contained in human rights instruments are applied not in a State-to-State relationship, but between a State and a human being.85 Human rights (p. 551) instruments are not the only example; the same situation exists in every case where a State does not have reciprocal obligations but, instead, has obligations towards the community of States parties, eg commodities instruments,86 environment protection treaties, disarmament instruments,87 or uniform law conventions.88 In all these cases, the reversed effect of the reservation has ‘nothing on which it can “bite” or operate’.89 36. Even in these exceptional circumstances, the reciprocity principle has one repercussion on the treaty relations established between a reserving State and a State with regard to which the reservation has been established: even if the latter must respect and honour the obligations contained in the treaty, the reserving State has no right to request the execution of the treaty obligations it does not accept for itself.90

C. The effects of objections 37. Contrary to the acceptance of a reservation, perfecting its establishment, an objection to a reservation can deploy different legal effects between the reserving State and the author of the objection. The choice is largely left to the discretion of the objecting State: it has the right to prevent the treaty from entering into force in its relationship with the reserving State, or to opt for a possible entry into force of the treaty limiting the treaty relationship to what has been effectively agreed upon with the reserving State.91 Only the second case is effectively, but not comprehensively, regulated by Article 21, paragraph 3. 38. In any case, an objection to a reservation, like an acceptance of a reservation, can produce a legal effect only within the bilateral relationship created with the reserving State. It only has a relative effect and does not change the content of the treaty (p. 552) relations between the other contracting States inter se, in accordance with Article 21, paragraph 2.92 39. The relativity of the legal effects of an objection is one of the most significant elements of the ‘flexible’ regime set out in the Vienna Convention. Under the traditional unanimity regime, one objection only was sufficient in order to preclude the entry into force of the treaty for the 93

reserving State and to exclude the latter entirely from the treaty regime.93 The effect of an objection consequently not only influenced the relationship between the reserving State and the objecting State, but between all States parties. It was not relative but absolute, in the sense that it precluded definitively the establishment of any treaty relationship with the reserving State. Such a categorical effect of an objection, precluding the entry into force of the treaty for the reserving State, is still applicable in some circumstances, especially in the case of treaties with ‘limited participation’ not submitted to the general ‘flexible’ regime of the Vienna Convention.94

The partial non-application of the treaty 40. Under the traditional unanimity regime, and even in the first proposals made by Sir Humphrey in 1962, the only possible effect of an objection was the exclusion of the reserving State from any treaty relationship.95 Once this categorical solution transformed into a simple presumption,96 it was necessary to address the ‘special’97 case and to identify the content of a treaty relationship established notwithstanding an objection to a reservation.98 The approval of the Soviet amendment at the Vienna Conference changed the picture entirely and has transformed the ‘special’ case into the ‘general’ and ‘normal’ effect of an objection.99 41. The circumstances of the drafting of paragraph 3 explain the gaps that this provision leaves in the Vienna reservations regime. It is surprising that paragraph 3 is not limited, as is the case with paragraph 1, only to permissible reservations, given the fact that an objection to an impermissible reservation is not able to produce the legal effects provided for under paragraph 3, even if State practice does not seem to challenge this possibility.100 The Vienna Convention does not give a response to the issue and seems to consider the objection independently of the permissibility of the reservation.101 On this question, the Commission seems to have gone beyond what was necessary in de-linking objections and permissibility:102 it is one thing to allow a State to make an objection to a (p. 553) reservation, valid or not, and another thing to attach to all these objections the same effects. It has now been suggested that the entire regime of the Vienna Convention is applicable to permissible reservations only, including the legal effect of an objection.103 42. In addition, State practice subsequent to the Vienna Convention reveals the incompleteness of paragraph 3. Objections not only purport to produce the effects provided for under this provision, but also different legal effects beyond those provided by the Vienna Convention. The codified norm no longer corresponds to the practice.104 However, this cannot mean that all the objections not provided for under the Vienna Convention are not valid as such.

The non-application of the provisions to which the reservation relates: the effect of simple or ‘minimum effect’ objections105 43. Paragraph 3 provides that an objection, not precluding the entry into force of the treaty, excludes the application not of the reservation,106 but of the ‘provisions to which the reservation relates’ and ‘to the extent of the reservation’ within the bilateral relationship between reserving and objecting States. The provision tends to preserve the agreement between the two parties to the greatest possible extent by reducing the application of the treaty to the provisions uncontested by both. J. K. Koh put it this way: Here the Vienna Convention seems to be overtly seeking to preserve as much of the treaty as possible even when parties disagree about a reservation.…[T]he Vienna Convention tries to salvage as much as is uncontroversial about the relations between reserving and opposing states.107 44. The same author considers however that: [a]lthough this attempt seems sensible and even laudable, it threatens to obliterate the difference between an accepted and an opposed reservation, and renders objection to the reservation a fruitless endeavor.108 This criticism is far from being isolated. Doubts arose during the work of the ILC and in the opinion of writers.109 When discussing paragraph 3 as proposed by Sir Humphrey in 1965, Mr Yasseen drew the Commission's attention to the fact that: (p. 554) In the text before the Commission…objection to a reservation and acceptance thereof seemed to produce the same effect, and objection was therefore made tantamount to acceptance.110 These doubts were given concrete form once the Vienna Conference adopted the Soviet amendment changing the presumption of Article 20, paragraph 4(b) in favour of the ‘minimum effect’ objection. In order to take due account of the new presumption, the Drafting Committee proposed a new version of Article 20, paragraph 3: When a State objecting to a reservation has not opposed the entry into force of the treaty between itself and the reserving State, the reservation has the effects provided for in paragraphs 1 and 2.111 At least this wording did not leave any doubt: the ‘minimum effect’ objection was called on to produce the same legal effects as an acceptance. Although the text was already approved by the Conference,112 a joint amendment was introduced by India, Japan, the Netherlands, and the USSR only a few days before the end of the Conference113 in order to replace the end of the provision by the text initially proposed in the ILC draft. The Dutch representative explained:

What has been overlooked, however, was another category of reservations, where the reserving State declared that an article of a treaty was acceptable provided it was interpreted in a particular way; in such a case, a State which objected to that interpretation could not hold the opinion that the legal effects of its objection should be the same as they would be if it accepted the special interpretation.114 The amendment was finally adopted by the Conference.115 Mr Yasseen, chairman of the Drafting Committee, explained that ‘[i]t was necessary to distinguish between cases where a State objected to a reservation but agreed that the treaty should nevertheless come into force, and cases in which the reservation was accepted’.116 Indeed, as F. Horn put it: The view that the institution of objections is in the end void of any special effect is discomforting as it was intended by the framers of the Vienna Convention to be the means by which the parties to a treaty safeguarded themselves against unwelcome reservations.117 45. This late re-establishment of the text grants to objections their real object and legal effect. This is particularly clear when considering the case of a reservation whereby its author purports to modify the legal effect of one or several provisions of the treaty: whereas, once established, the reservation deploys all its effects and modifies these provision(s) in the bilateral relationship of reserving State and accepting State,118 paragraph 3 excludes the (p. 555) application of these provisions ‘to the extent of the reservation’. The legal effect of an accepted, established reservation and those of an objection to a reservation are consequently diametrically opposed. This solution has been confirmed by the Court of Arbitration in the Anglo-French Continental Shelf case: the effect of the rejection may properly, in the view of the Court, be said to render the reservations non-opposable to the United Kingdom. Just as the effect of the French reservations is to prevent the United Kingdom from invoking the provisions of Article 6 [of the 1958 Continental Shelf Convention] except on the basis of the conditions stated in the reservations, so the effect of their rejection is to prevent the French Republic from imposing the reservations on the United Kingdom for the purpose of invoking against it as binding a delimitation made on the basis of the conditions contained in the reservations. Thus, the combined effect of the French reservations and their rejection by the United Kingdom is neither to render Article 6 inapplicable in toto, as the French Republic contends, nor to render it applicable in toto, as the United Kingdom primarily contends. It is to render the Article inapplicable as between the two countries to the extent, but only to the extent, of the reservations; and this is precisely the effect envisaged in such cases by Article 21, paragraph 3 of the Vienna Convention on the Law of Treaties and the effect indicated by the principle of mutuality of consent.119 The Court of Arbitration affirmed the customary nature of Article 21, paragraph 3120 by applying it, in principle, notwithstanding the fact that the Vienna Convention had not yet entered into force and that the French Republic had not even signed it.121 It rejected the British argument according to which the British objection to the French reservation made Article 6 of the 1958 Geneva Convention (the provision to which the reservation related) applicable in its entirety, depriving the reservation of any effect. In so deciding, the Tribunal clearly disapproved the idea of a ‘super-maximum effect’ of an objection.122 Under the consent principle, the objecting State cannot impose on the reserving State more obligations than the latter is ready to accept.123 The ILC reaffirmed unmistakably this basic principle in guideline 4.3.7 (Right of the author of a valid reservation not to be compelled to comply with the treaty without the benefit of its reservation): The author of a reservation which is permissible and which has been formulated in accordance with the required form and procedures cannot be compelled to comply with the provisions of the treaty without the benefit of its reservation.124

References 46. The decision of the Court of Arbitration also makes clear that an objection does not necessarily exclude the application of the entire provision concerned between the objecting and reserving States, as had been argued by France. It is not necessary to reduce the agreement between both parties up to this point, but only to the extent necessary in order to establish the content of the consent achieved by them.125 Consequently, the (p. 556) objection excludes the application of the relevant provision only to the extent of the reservation, and only to this extent. 47. Certainly, one can be ‘rather puzzled’126 about the true meaning of the words ‘to the extent of the reservation’, which are key in paragraph 3. Mr Yasseen, in his capacity as chairman of the Drafting Committee of the Vienna Conference, explained that: where, for example, a reservation formulated by a State affected only the first three paragraphs of an article, only those three paragraphs would not operate as between the reserving State which had raised an objection to that reservation without opposing the entry into force of the treaty.127 D. W. Bowett noted in that respect that: The practical difficulty may be that of determining precisely what part of the treaty is affected by the reservation and must therefore be omitted from the agreement

between the two Parties. It may be a whole article, or a sub-paragraph of an article, or merely a phrase or word within the sub-paragraph. There can be no rule to determine this, other than the rule that by normal methods of interpretation and construction one must determine which are the ‘provisions,’ the words, to which the reservation relates.128 48. In the case of a reservation purporting to exclude the application of a given provision of a treaty, the effect of a ‘minimum effect’ objection seems to be the same as that produced by the establishment of the reservation. In this particular case, it is indeed the same thing to ‘modify’ the legal effect of ‘the provisions of the treaty to which the reservation relates to the extent of the reservation’ or to exclude the application of the provision to which the reservation relates.129 This apparent similarity between the effects of acceptance and objection does not, however, imply that both reactions are the same and that the reserving State would get what it desired, in every circumstance. First of all, the ‘minimum effect’ objection cannot produce this effect alone and needs at least one acceptance for the treaty to enter into force with regard to the reserving State.130 In addition, the similarity of the legal effects on the content of the treaty relationship established between the author of the reservation and a State having accepted the reservation or a State having objected to it, as the case may be, appears only in the case of an excluding reservation, but not at all in the case of a reservation purporting to modify the legal effect of a provision of the treaty. Finally, the acceptance—the approval, or at least the absence of disapproval—cannot have the same implications as objections, ie disagreement. The objection is never a simple political declaration or wishful thinking;131 it always expresses disagreement and constitutes a useful means of safeguarding the rights of its author simply as a protest.132 (p. 557) 49. The ILC reaffirmed the legal effects of an objection with ‘minimum effect’ to a permissible reservation in guideline 4.3.5 (Effects of an objection on treaty relations): 1. When a State or an international organization objecting to a valid reservation has not opposed the entry into force of the treaty between itself and the reserving State or organization, the provisions to which the reservation relates do not apply as between the author of the reservation and the objecting State or organization, to the extent of the reservation. 2. To the extent that a valid reservation purports to exclude the legal effect of certain provisions of the treaty, when a contracting State or a contracting organization has raised an objection to it but has not opposed the entry into force of the treaty between itself and the author of the reservation, the objecting State or organization and the author of the reservation are not bound, in their treaty relations, by the provisions to which the reservation relates. 3. To the extent that a valid reservation purports to modify the legal effect of certain provisions of the treaty, when a contracting State or a contracting organization has raised an objection to it but has not opposed the entry into force of the treaty between itself and the author of the reservation, the objecting State or organization and the author of the reservation are not bound, in their treaty relations, by the provisions of the treaty as intended to be modified by the reservation. 4. All the provisions of the treaty other than those to which the reservation relates shall remain applicable as between the reserving State or organization and the objecting State or organization.133 50. As in the case of an established reservation,134 an objection to a reservation can only exclude the application of the provisions of the treaty. The objecting and the reserving State are consequently not bound by the treaty provisions only, but do not necessarily revert to full freedom in their bilateral relations. The ‘deregulatory effect’135 of an objection can only ‘erase’ treaty provisions, but cannot touch upon any rules existing outside the treaty context, eg any customary rules. Both States remain entirely bound by those rules, independently of the reservation and the objection. This has been made amply clear by the Court of Arbitration in the Anglo-French Continental Shelf case: The fact that Article 6 [of the 1958 Convention] is not applicable as between the Parties to the extent that it is excluded by the French reservations does not mean that there are no legal rules to govern the delimitation of the boundary in areas where the reservation operates. On the contrary, as the International Court of Justice observed in the North Sea Continental Shelf cases, ‘there are still rules and principles of law to be applied’ (I.C.J. Reports 1969, paragraph 83); and these are the rules and principles governing delimitation of the continental shelf in general international law.136 Thus, an objection to a reservation relating to a treaty provision reflecting a customary norm re-establishes, in the relation between the reserving State and the objecting State, the preexisting customary regime: both States remain bound not by the treaty rule, but by the— theoretically identical—customary rule.137 This solution has been expressly reaffirmed by the Swedish government in its objection to the Qatari reservation formulated to Article 35 of the Vienna Convention on Consular Relations: (p. 558) This objection shall not preclude the entry into force of the Convention between Sweden and Qatar. Furthermore, the Government of Sweden takes the view that article 35, paragraph 3, remains in force in relations between Sweden and Qatar by virtue of international customary law.138 Contrary to a ‘super-maximum effect’ objection, the Swedish objection does not purport to oblige the reserving State to remain bound by the treaty provision for which it has formulated

its reservation but, outside the conventional context, by the obligation resulting from international customary law.

References

The case of ‘intermediary effect’ objections 51. Since the Vienna Conference, and interestingly with regard to the 1969 Vienna Convention itself, State practice has developed a ‘nueva generación’139 of objections purporting to produce effects exceeding those provided for under paragraph 3 without, however, reaching the categorical effect of a ‘maximum effect’ reservation, ie the nonapplication of the treaty.140 52. The reservations formulated by several States to Article 66 of the Vienna Convention on the law of treaties concerning compulsory dispute settlement141 caused important objections made by several other States. Several States made objections limited to the ‘presumed’ effects of Article 21, paragraph 3,142 others—Canada,143 Egypt,144 Japan,145 New Zealand,146 the Netherlands,147 Sweden,148 the United Kingdom,149 and the United States150—wanted their objections to produce more important effects while not opposing the entry into force of the Convention in regard to the reserving States.151 These (p. 559) objecting States aimed at excluding not only the dispute-settlement provision to which the reservations related, but also the application of substantive provisions to which the dispute-settlement procedure would apply. The US objection to the reservation formulated by Tunisia states: the United States Government intends, at such time as it becomes a party to the Convention, to reaffirm its objection to the Tunisian reservation and declare that it will not consider that Article 53 or 64 of the Convention is in force between the United States of America and Tunisia152 53. Such additional exclusions of treaty provisions to which the reservation does not relate are not, as such, provided for under the Vienna Convention. The Special Rapporteur on reservations to treaties named objections purporting to produce such additional exclusions as ‘intermediary effect’ objections.153 This characterization puts some emphasis on the fact that the purported effect of these objections is somewhere between the minimum effect of an objection154 and the maximum effect of an objection.155 54. The legal basis of these objections, and even the issue of their validity, is not clearly established, either in the Vienna Convention or in the opinion of scholars. It is indeed difficult to consider these objections to be in line with the consent principle. Professor Gaja states in this regard: As a partial rejection modifies the content of the treaty in relations to the reserving State to an extent that exceeds the intended effect of the reservation, acceptance or acquiescence on the part of the reserving State appear to be necessary for a partial rejection to take its effect; failing this, no relations under the treaty are established between the reserving State and an objecting State which partially rejects those relations.156 Some authors even suggest, in order to justify the necessity of the reserving State's consent, that ‘these extended objections are, in fact, reservations (limited ratione personae)’.157 Belgium has indeed considered it more appropriate to opt for such a way in order to ‘protest’ against the reservations formulated to Article 66 of the Vienna Convention; it recently formulated a counter-reservation in the following terms: (p. 560) The Belgian State will not be bound by articles 53 and 64 of the Convention with regard to any party which, in formulating a reservation concerning article 66 (a), objects to the settlement procedure established by this article.158 55. The proposition assimilating ‘intermediary effect’ objections to reservations is controversial; it questions the principle according to which ‘[n]o State can be bound by contractual obligations it does not consider suitable’.159 Indeed, such objections are usually made as a reaction to a reservation formulated by a given State once its author has already become a party to the treaty. If an ‘intermediary effect’ objection had to follow the same requirements as a reservation, the objecting State would be submitted to the double consent requirement of late reservations:160 such a late reservation can produce its effects only once all contracting States have accepted the late formulation. A single objection—made, for example, by a State having formulated the initial reservation to which the ‘objection’ related— is sufficient to reject the reservation. Under these circumstances, States could only formulate ‘preventive’ reservations purporting to submit the application of certain provisions of the treaty to the condition that no reservation has been formulated by another State in order to exclude the application of another provision of the treaty. This might be the way the Belgian reservation and the reservation formulated by Tanzania161 have to be understood. However, one cannot require that a State foresees any possible future reservation formulated by another State in order to evaluate its effects and to formulate a ‘preventive’ reservation when it ratifies or accedes to the treaty.162 56. The ILC decided to include these ‘intermediary effect’ objections in the definition of the term ‘objection’ in draft guideline 2.6.1 (Definition of objections to reservations) adopted in first reading in 2005.163 Indeed, even if the Vienna Convention does not expressly provide for the case of ‘intermediary effect’ objections, it does not prohibit them either. If a State is allowed to exclude simply any treaty relationship with a reserving State, or to exclude only the application of the provision to which the reservation relates, there is no reason why it cannot

also modulate the effects of its objections (p. 561) between these two possibilities. ‘He who can do more, can do less.’164 One has simply to accept that the Vienna Convention, and in particular Article 21, paragraph 3, does not include the case of ‘intermediary effect’ objections, and is, in this respect, certainly too restrictive. However, ‘it is not always sufficient to rely implicitly on the rule laid down in Article 21, paragraph 3, of the Vienna Conventions’.165 The intermediary effect is simply not one of the presumed effects of objections provided for under the Vienna Convention. The Special Rapporteur on reservations to treaties has suggested in this regard: ‘[c]learly, such effects are not automatic and must be expressly indicated in the text of the objection itself’.166 57. This being said, it is evident that States are not entitled to modulate the effects of their objections as they please by excluding any treaty provision which does not suit them. State practice established with regard to the sole Vienna Convention on the law of treaties clearly demonstrates the reasons underlying the phenomenon. Indeed, Article 66 and the Annex to the Vienna Convention concerning the compulsory conciliation mechanism represent essential procedural guarantees within the Vienna regime, especially in order to forestall any unreasonable use of the provisions of Part V of the Convention concerning invalidity, termination, and suspension of treaties.167 This inextricable link between Article 66 and Part V of the Convention has been emphasized by those States having made ‘intermediary effect’ objections to reservations purporting to exclude the application of Article 66. The Netherlands considered that: the provisions regarding the settlement of disputes, as laid down in Article 66 of the Convention, are an important part of the Convention and that they cannot be separated from the substantive rules with which they are connected.168 The United Kingdom explained even more comprehensively: Article 66 provides in certain circumstances for the compulsory settlement of disputes by the International Court of Justice (in the case of disputes concerning the application or interpretation of articles 53 or 64) or by a conciliation procedure (in the case of the rest of Part V of the Convention). These provisions are inextricably linked with the provisions of Part V to which they relate. Their inclusion was the basis on which those parts of Part V which represent progressive development of international law were accepted by the Vienna Conference.169 The exclusion of the application of Part V or of certain provisions of this Part (especially Arts 53 and 64) is thus not an arbitrary reaction by the objecting States. It is a meaningful reaction aimed at re-establishing the balance of their consent to Part V of the treaty. Indeed, they have accepted Part V of the Convention especially because of the procedural guarantees of Article 66 and the Annex. Without the latter, they would not have accepted the former. The package deal was called into question by the reservations and could not have been restored except by the ‘intermediary effect’ objections. (p. 562) 58. Only if such an undeniable and inextricable link between the provisions to which the reservation relates and other provisions of the treaty exists, may a State reasonably attach, by expressing a corresponding intention, to its objection more than the usual ‘presumed’ effect provided for under paragraph 3 of Article 20. The ILC has also accepted this idea in guideline 3.4.2 (Permissibility of an objection to a reservation): An objection to a reservation by which a State or an international organization purports to exclude in its relations with the author of the reservation the application of provisions of the treaty to which the reservation does not relate is only permissible if: (1)  The additional provisions thus excluded have a sufficient link with the provisions to which the reservation relates; and (2)  The objection would not defeat the object and purpose of the treaty in the relations between the author of the reservation and the author of the objection.170 59. It is, however, noteworthy that the ILC did not follow the opinion that an objection with ‘intermediary effect’ constitutes a proper objection and deploys its effects independently of the reaction of or the endorsement by the reserving State. Guideline 4.3.6 (Effect of an objection on provisions other than those to which the reservation relates), in fact, adds the possibility for the reserving State to oppose the entry into force between itself and the objecting State—a situation which suggests that these objections are indeed nothing other than ‘counterreservations’. Guideline 4.3.6 adopted in first reading in 2010 reads: 1. A provision of the treaty to which the reservation does not relate, but which has a sufficient link with the provisions to which the reservation does relate, is not applicable in the treaty relations between the author of the reservation and the author of an objection formulated in accordance with guideline 3.4.2. 2. The reserving State or organization may, within a period of twelve months following the notification of such an objection, oppose the entry into force of the treaty between itself and the objecting State or organization. In the absence of such opposition, the treaty shall apply between the author of the reservation and the author of the objection to the extent provided by the reservation and the objection.171

The non-application of the treaty 60. Article 21, paragraph 3 provides only for the ‘normal’ and presumed effect of an objection: the treaty enters into force with the exception of the provision or provisions to which the reservation relates to the extent of the reservation. However, as codified in Article

20, paragraph 4(b), the objecting State can also choose to preclude the entry into force of the treaty in the relationship between itself and the reserving State, by expressing ‘definitely’ this intention.172 In this case, it is not necessary to consider the content of the treaty relationship; it is simply non-existent between the objecting State and the reserving State. Guideline 4.3.4 (Non-entry into force of the treaty as between the author of a reservation and the author of an objection with maximum effect) adopted by the ILC in first reading in 2010 confirms in this regard: (p. 563) An objection by a contracting State or by a contracting organization to a valid reservation precludes the entry into force of the treaty as between the objecting State or organization and the reserving State or organization, if the objecting State or organization has definitely expressed an intention to that effect in accordance with guideline 2.6.8.173

D. The relation between the other parties inter se (paragraph 2) 61. According to paragraph 2, the treaty relationship between the other States parties, ie all but the reserving State, remains unaffected by the operation of the reservation. It limits the legal effects of a reservation to the bilateral relationships established (or not) between the reserving State and the other States parties (having accepted it or objected to it), while protecting the normative system applicable between the other States parties in their inter se relations. Even if it appears, from the viewpoint of the reserving State, to be the general treaty regime (from which it is excluded), this system is not uniform and unique. Indeed, the other States parties can also formulate reservations which, once established, create new bilateral normative systems within the treaty.174 62. This being said, the contracting States are of course always free to change and modify their treaty relation, if necessary or desired.175 Such a possibility is inherent in the consensual basis of treaty relations176 and has not been excluded by the ILC in its commentary on the draft: ‘[a reservation] does not modify the provisions of the treaty for the other parties, inter se, since they have not accepted it as a term of the treaty in their mutual relations’.177A contrario, they are indeed free to accept, in their relations, and, under the conditions set out in Articles 40 and 41 of the Vienna Conventions, to insert the reservation in their treaty relations. Such a modification of the treaty for all its parties may actually be necessary and indispensable in some specific cases,178 but is nevertheless submitted to the will and discretion of the States parties. In no case can an amendment of the treaty for all its parties operate ipso facto and by the sole consent to a reservation.

References 63. Interestingly, and without great surprise, the scope of paragraph 2 is not limited, as is the case for paragraph 1, to established reservations.179 The effect of a reservation, established or not, is always relative and deploys its effects only in the treaty relationships created (or not) for the reserving State. The other States parties and their mutual treaty relations are never affected.180 This is, of course, also true for the States parties (p. 564) having chosen to object to the reservation. Their objection can only deploy its effects under Article 21, paragraph 3 within the bilateral relationship created between the objecting State and the reserving State. The rights and obligations to which the objecting State has consented vis-à-vis the other States parties are unaffected and remain entirely valid. 64. This does not imply that non-valid reservations are also submitted to the application of Article 21, paragraph 2. Even if in its result the legal effect—or, better, the absence of any legal effect—of such a non-valid reservation on the treaty relationship of the other State parties inter se might be the same, the legal and logical basis is different. Indeed, a non-valid reservation is null and void and cannot, because of its nullity, have any effect whatsoever, either for the other contracting States or for its authors. It is neither necessary nor correct to apply paragraph 2 to non-valid reservations. This confirms that the Vienna Convention does not address the case of non-valid reservations.181 *

DANIEL MÜLLER

Footnotes: 1 For a presentation of the travaux préparatoires of all provisions concerning reservations, see the commentary on Art. 19, at paras 2–27. 2 See the commentary on Art. 20, at para. 2. 3 YILC, 1950, vol. II, p 238. 4 Emphasis added. See also the ILC commentary on draft Art. 2, para. 1(d), YILC, 1966, vol. II, pp 189–90, para. 11 and draft guideline 1.1 (Definition of reservations) and its commentary, ibid, 1998, vol. II, Part Two, pp 99–100. 5 YILC, 1998, vol. II, Part Two, p 94, para 500. Special Rapporteur A. Pellet, considered that ‘it is generally recognized that the function of reservations is to purport to produce legal effects’ (Third Report on reservations to treaties, A/CN.4/491 and Add.1–6, para. 147). F. Horn argues that the ‘differentia specifica’ of a reservation is indeed to aim at producing a specific legal effect (Reservations and Interpretative Declarations to Multilateral Treaties (The Hague: TMC Asser Institute, 1988), p 41). 6 On the definition of reservations, see Third Report, A/CN.4/491, supra n 5, paras 51–235. 7 Draft Art. 37, para. 1, [First] Report on the Law of Treaties, A/CN.4/101, YILC, 1956, vol. II,

p 115. 8 H. Lauterpacht also did not include a specific provision concerning the effect of reservations, either in his draft Art. 9 or in his four de lege ferenda proposals. As his predecessor, he only limited the scope of his de lege ferenda proposals to reservations ‘limiting or otherwise varying the obligations of any article or articles of the treaty’ (Report on the Law of Treaties, A/CN.4/63, YILC, 1953, vol. II, pp 91–2). 9 First Report, A/CN.4/101, supra n 7, pp 115–16. 10 Ibid, p 127, para 101. 11 According to the terms of draft Art. 18, para. 5, proposed in Sir Humphrey's First Report, A/CN.4/144, YILC, 1962, vol. II, p 61. 12 Ibid, p 68, para. 21. See also YILC, 1962, vol. II, p 181 (commentary on Art. 21) and ibid, 1966, vol. II, p 209, para. 1. 13 See draft Art. 9, variants C and D, para. 3, First Report, A/CN.4/63, supra n 8, p 92. 14 See the commentary on Art. 20, at para. 113. 15 Ibid. See also YILC, 1962, vol. II, p 176 and p 181, para 23 of the commentary. 16 Only two States clearly mentioned the issue: Denmark (Sir Humphrey Waldock, Fourth Report on the Law of Treaties, A/CN.4/177 and Add.1 and 2, YILC, 1965, vol. II, p 46), and the United States (ibid, p 55). 17 Ibid, p 55. 18 Ibid. 19 Ibid. 20 Ibid, p 55, para. 3. 21 YILC, 1965, vol. I, 814th meeting, 29 June 1965, p 271, para. 7 (Mr Ago). 22 The opinion that this situation was already sufficiently covered by Art. 21, para. 1(b), expressed in particular by Mr Castrén (ibid, 800th meeting, 11 June 1965, p 172, para. 15), remained isolated. 23 Ibid, 814th meeting, 29 June 1965, p 271, para. 7 (Mr Ago). 24 While Mr Yasseen (ibid, 800th meeting, 11 June 1965, p 171, para. 7 and pp 172–3, paras 21–3 and 26), Mr Tounkine (ibid, p 172, para. 18) and Mr Pal (ibid, pp 172–3, para. 24) shared the doubts expressed by the Special Rapporteur (see also his conclusions, ibid, p 173, para. 31), Mr Rosenne (ibid, p 172, para. 10) considered: The United States unilateral approach to the situation it had mentioned in its observations concerning paragraph 2 was more in line with the general structure of the Commission's provisions on reservations and preferable to the Special Rapporteur's reciprocal approach, because if a State proposed a reservation, that step automatically brought into play the whole of the law governing the institution of reservations; if an objection was made to the reservation, the objecting State should have some option to decide whether or not it wished to be in treaty relations with the reserving State subject to the reservation. It would unnecessarily complicate matters to require a further agreement between the two States as to whether or not they wished to be in such treaty relations with each other. See also Mr Ruda (ibid, para. 13). 25 Ibid, 816th meeting, 2 July 1965, p 284. 26 Ibid, 800th meeting, 11 June 1965, p 173, para. 31. 27 See the commentary on Art. 20, at paras 14 and 114. 28 The content of the rule was re-established by the adoption of the joint amendment of India, Japan, the Netherlands, and the USSR (A/CONF.39/L.49, United Nations Conference on the Law of Treaties, Official Records, Documents of the Conference, 1st and 2nd sessions, Vienna, 26 March–24 May 1968 and 9 April–22 May 1969 (A/CONF.39/11/Add.2), p 273) on the penultimate day of the Conference (ibid, Summary Records of the Plenary Meetings and the Meetings of the Committee of the Whole, 2nd session, Vienna, 9 April–22 May 1969 (A/CONF.39/11/Add.1), 33th plenary meeting, 21 May 1969, p 181, para. 12). Indeed, after the adoption of the Soviet amendment, the Drafting Committee changed not only the introductory sentence of para. 3 but also the end of the provision, and assimilated the effects of an objection to those of an established reservation provided for under paras 1 and 2. That slip was not noticed by the Conference when adopting Art. 21 (ibid, 11th plenary meeting, 30 April 1969, p 36, paras 5–10) and was only corrected at the last moment. See also J. M. Ruda, ‘Reservations to Treaties’, RCADI, 1975-III, vol. 146, pp 95–218 at pp 198–9. 29 See also R. W. Edwards, Jr, ‘Reservations to Treaties’, Michigan J Int'l L, 1989, vol. 10, pp 362–402 at p 398. 30 YILC, 1965, vol. I, 814th meeting, 29 June 1965, p 271, para. 7 (Mr Ago). 31 Ibid, 1966, vol. II, p 209, para. 2. 32 R. W. Edwards, Jr, supra n 29, p 398; G. Gaja, ‘Unruly Treaty Reservations’ in Le Droit international à l'heure de sa codification, Études en l'honneur de Roberto Ago (Milan: Guiffrè, 1987), p 308. 33 Award of 30 June 1977, RIAA, vol. XVIII, p 42, para. 61. See also infra para. 45. 34 On this issue, see A. Pellet, Fifteenth Report on reservations to treaties, A/CN.4/624 and

Add.1 and 2, paras 386–402. See also G. Gaja, ‘Il regime della Convenzione di Vienna concernente le reserve inammissibili’ in Studi in onore di Vincenzo Starace (Naples: Ed. Scientifica, 2008), pp 349–61 and B. Simma, ‘Reservations to Human Rights Treaties—Some Recent Developments’, Liber Amicorum Professor Seidl-Hohenveldern—in Honour of his 80th Birthday (The Hague: Kluwer, 1998), pp 659–80. 35 G. Gaja, supra n 32, p 330. 36 See supra n 18. 37 Cf the commentary on Art. 20, at para. 115. 38 See infra paras 42 and 51 ff. 39 YILC, 1966, vol. II, p 209, para. 1 of the commentary on draft Art. 19. On the consent principle, see also the commentary on Art. 20, at paras 18–22. 40 ‘Reservations to Multilateral Treaties on Human Rights’, California Western Int'l LJ, 1985, vol. 15, pp 1–51 at p 9. 41 It has in particular been argued that with regard to human rights treaties the establishment of different legal regimes is not only difficult to explain (because of the nonapplication of the reciprocity principle), but also, and maybe above all, undesirable with regard to the universalist character of the substantive norms embodied therein. As Rosalyn Higgins put it, human rights treaties ‘reflect rights inherent in human beings, not dependent upon grant by the state’ (‘Human Rights: Some Questions of Integrity’, MLR, 1989, vol. 52, p 11). 42 See also guideline 4.1 (Establishment of a reservation with regard to another State or organization) adopted in first reading in 2010 (Official Records of the General Assembly, 65th session, Supplement No. 10 (A/65/10), p 112). 43 See guideline 2.6.1 (Definition of objections to reservations), Official Records of the General Assembly, 60th session, Supplement No. 10 (A/60/10), pp 186–201. 44 A. Pellet, Tenth Report on reservations to treaties, A/CN.4/558 and Add.1 and 2, para. 186. The ILC draft adopted in first reading seemed to link the establishment of a reservation to the sole respect of Art. 20 (which corresponded broadly to the present Art. 20). This draft convincingly supported the opposability school. However, the commentary accompanying this draft Article confirmed unmistakably that the provision related solely to a ‘reservation which has been established under the provisions of Articles 18, 19 and 20, assuming that the treaty is in force’ (YILC, 1962, vol. II, p 181). 45 On this school, see the commentary on Art. 19, at para 49 ff. 46 See guideline 4.5.1 (Nullity of an invalid reservation): A reservation that does not meet the conditions of formal validity and permissibility set out in Parts 2 and 3 of the Guide to Practice is null and void, and therefore devoid of legal effect. (Official Records of the General Assembly, 65th session, Supplement No. 10 (A/65/10), p 181.) 47 See the comment of the Danish government on draft Art. 19 adopted in first reading (Sir Humphrey Waldock, Fourth Report, A/CN.4/177 and Add.1 and 2, supra n 16, p 46). 48 See supra n 34 and the commentary on Art. 20, at para. 63. 49 See infra para. 63. 50 Ibid. 51 See infra para. 41. 52 On the principle of reciprocity, see infra paras 32–62. 53 YILC, 1966, vol. II, p 202, para. 1 of the commentary. 54 See infra para. 26. 55 YILC, 1965, vol. I, 800th meeting, 11 June 1965, p 172, para. 9 (Mr Rosenne); ibid, 814th meeting, 29 June 1965, p 271, para. 2 (Mr Rosenne); and ibid, p 272, para. 16 (Mr Tsuruoka). Mr Tounkine considered ‘it of no great importance whether the wording used was “modifies the provisions of the treaty” or “modifies the application of the provisions of the treaty”’ (ibid, p 271, para. 9; see also ibid, p 272, para. 13 (Mr Briggs)). 56 Third Report, A/CN.4/491, supra n 5, para. 154. 57 P.-H. Imbert, Les réserves aux traités multilatéraux (Paris: Pedone, 1979), pp 14–15; R. Szafarz, ‘Reservations to Multilateral Treaties’, Annuaire polonais de Droit international, 1970, vol. 3, pp 239–316 at p 296. See also A. Pellet, Third Report, A/CN.4/491, supra n 5, para. 156. D. N. Hylton considers however that ‘[r]eservations modify a treaty only in regard to specific provisions’ (‘Default Breakdown: The Vienna Convention of the Law of Treaties’ Inadequate Framework on Reservations', Vanderbilt J Transnat'l L, 1994, vol. 27, pp 419–51 at p 422). 58 YILC, 1999, vol. II, Part Two, p 93, para. 5 of the commentary on guideline 1.1.1 (Object of reservations). 59 P. de Cesari considers that: Mediante le riserve, gli Stati possini produrre l'effetto di restringere il campo d'applicazione materiale o soggetivo della convenzione, fino all'esclusione di una o più disposizioni dell'accordo o alla non applicazione per determinati soggetti, oppure manifestare la volontà di accettare le disposizioni con modalità restrittive o con limiti di ordine temporale o territoriale.

(‘Riserve, dichiarazioni e facoltà nelle convenzioni dell'Aja di diritto internazionale privato’ in T. Treves (ed.), ‘Six Studies on Reservations’, Communicazioni e Studi, 2002, vol. 22, pp 149– 74 at p 167, para. 8.) 60 Official Records of the General Assembly, 65th session, Supplement No. 10 (A/65/10), p 133. 61 See guideline 4.4.1 (Absence of effect on rights and obligations under another treaty) (ibid, p 170). 62 Nuclear Tests (Australia v France), Joint Dissenting Opinion of Judges Onyeama, Dillard, Jimenez de Arechaga, and Sir Humphrey Waldock, ICJ Reports 1974, p 350. See also Border and Transborder Armed Actions (Nicaragua v Honduras), Jurisdiction and Admissibility, Judgment, ICJ Reports 1988, p 88, para. 41. 63 The ILC paid great attention to the pacta sunt servanda principle when it considered the possibility of formulating late reservations (see YILC, 2001, vol. II, Part Two, p 184, para. 3 of the commentary on section 2.3 (Late formulation of a reservation)). See also draft guideline 2.3.5 (Widening of the scope of a reservation), Official Records of the General Assembly, 59th session, Supplement No. 10 (A/59/10), pp 269–74. 64 See guideline 4.4.2 (Absence of effect on rights and obligations under customary international law) (Official Records of the General Assembly, 65th session, Supplement No. 10 (A/65/10), p 171). On the validity of such reservations, see A. Pellet, Tenth Report, A/CN.4/558 and Add.1 and 2, supra n 44, paras 116–30, and guideline 3.1.8 (Reservations to a provision reflecting a customary norm), Official Records of the General Assembly, 62nd session, Supplement No. 10 (A/62/10), pp 89–98. See also G. Teboul, ‘Remarques sur les réserves aux conventions de codification’, RGDIP, 1982, vol. 86, pp 679–717. 65 Ibid, p 708, para. 32. 66 P. Weil wrote: the intention manifested by a state in regard to a given convention is henceforth of little account: whether it signs it or not, becomes party to it or not, enters reservations to such and such a clause or not, it will in any case be bound by any provisions of the convention that are recognized to possess the character of rules of customary or general international law. (‘Towards Relative Normativity in International Law’, 77 AJIL, 1982, pp 413–42 at p 440.) 67 North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment, ILC Reports 1969, p 40, para. 65. 68 ‘General Course on Public International Law’, RCADI, 1962-II, vol. 106, pp 1–251 at p 87. 69 A/CN.4/144, supra n 11, p 68, para. 21. The ILC endorsed this explanation in its commentary on draft Art. 19 adopted in second reading (YILC, 1966, vol. II, p 209, para. 1). 70 Ibid. D. Anzilotti affirmed that: l'effetto della riserva è che lo Stato riservante non è vincolato dalle disposizioni riservate: naturalmente, le altre parti non sono vincolate verso di lui, di guisa che, nei rapporti tra lo Stato riservante e gli altri, le disposizioni riservate sono come se non facessero parte del trattato. (Corso di diritto internazionale, vol. 1, Introduzione—Teorie generali (Padua: Cedam, 1955), p 335; emphasis added.) See also R. Baratta, Gli effetti della riserve ai trattati (Milan: Guiffrè, 1999), p 291. 71 R. Baratta rightly affirms in this regard that the reciprocity principle has become a strumento di compensazione nelle mutue relazioni pattizie tra parti contraenti; strumento che è servito a ristabilire la parità nel quantum degli obblighi convenzionali vicendevolmente assunto, parità unilateralmente alterata da una certa riserva. (ibid, p 292) Judge Simma formulated the reciprocity principle in a comparable way: Wer sich bestimmten Vertragsverpflichtungen durch einen Vorbehalt entzogen hat, kann selbst auch nicht verlangen, im Einklang mit den vom Vorbehalt erfassten Vertragsbestimmungen behandelt zu werden. (Das Reziprozitätselement im Zustandekommen völkerrechtlicher Verträge (Berlin: Duncker & Humblot, 1972), p 60.) See also YILC, 1966, vol. II, p 206, para. 13 of the commentary on draft Arts 16 and 17. 72 Sir Humphrey expressed this idea in the following way: There is of course another check upon undue exercise of the freedom to make reservations in the fundamental rule that a reservation always works both ways, so that any other State may invoke it against the reserving State in their mutual relations. (supra n 68, p 87) See also F. Parisi and C. Ševcenko, ‘Treaty Reservations and the Economics of Article 21(1) of the Vienna Convention’, Berkeley J Int'l L, 2003, vol. 21, pp 1–26. 73 Ibid. See also R. Baratta, supra n 70, pp 295–6. 74 This is indeed the case of Art. 20, para. 2 of the 1930 Hague Convention on certain questions relating to the conflict of nationality laws, and numerous other conventions

elaborated by the Hague Conference on private international law (F. Majoros, ‘Le régime de réciprocité de la Convention de Vienne et les réserves dans les Conventions de la Haye’, JDI, 1974, vol. 101, pp 73–109 at pp 90 ff), within the UN Economic Commission for Europe (P.-H. Imbert, supra n 57, pp 188–91 and 251), and within the Council of Europe. The Model Final Clauses for Conventions and Agreements concluded within the Council of Europe adopted in 1980 contain a draft provision concerning the reciprocity issue: A Party which has made a reservation in respect of a provision of (this Agreement) (this Convention) may not claim the application of that provision by any other Party; it may, however, if its reservation is partial or conditional, claim the application of that provision in so far as it has itself accepted it (Art. e, para. 3). See also P.-H. Imbert, supra n 57, p 251 (with further references); and F. Horn, supra n 5, pp 146–7. 75 See eg Art. 18 of the 1956 New York Convention on the Recovery Abroad of Maintenance (‘A Contracting Party shall not be entitled to avail itself of this Convention against other Contracting Parties except to the extent that it is itself bound by the Convention’), or Art. XIV of the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (‘A Contracting State shall not be entitled to avail itself of the present Convention against other Contracting States except to the extent that it is itself bound to apply the Convention’). 76 P.-H. Imbert, supra n 57, p 252; or F. Majoros, supra n 74, pp 83 and 109. 77 Ibid. See also R. Baratta, supra n 70, pp 243 ff; F. Horn, supra n 5, p 148; and B. Simma, supra n 71, pp 60–1. 78 R. Baratta, supra n 70, pp 227 ff and 291; F. Majoros, supra n 74, pp 83 and 109; F. Parisi and C. Ševcenko, supra n 72. States have nevertheless asserted their acceptance of reservations of the condition of reciprocity. The United States, for example, has informed the Secretary-General with regard to the Soviet and Romanian reservations to the 1949 Convention on Road Traffic that ‘it has no objection to this reservation, but “considers that it may and hereby states that it will apply this reservation reciprocally with respect to [these States]”’ (Multilateral Treaties deposited with the Secretary-General (available at: http://treaties.un.org/), ch. XI.B, 1). 79 Draft Art. 21 adopted in first reading was indeed not quite clear about the issue of automatic application stating simply that the established reservation operates ‘[r]eciprocally to entitle any other State party to the treaty to claim the same modification of the provisions of the treaty in its relations with the reserving State’ (YILC, 1962, vol. II, p 181). This wording seemed to suggest that a contracting State, in order to benefit from the reciprocity principle, needs to require its application. Following the observations made by the United States and by Japan, the text has been modified in order to emphasize that a reservation produces ipso iure reciprocal effects (Sir Humphrey Waldock, Fourth Report, A/CN.4/177, supra n 16, p 55, para. 2). 80 B. Simma, supra n 71, p 61; R. Baratta, supra n 70, p 292; D. W. Greig, ‘Reservations: Equity as a Balancing Factor?’, Australian Yearbook of Int'l L, 1995, vol. 16, pp 21–172 at p 139; F. Horn, supra n 5, pp 148 ff. 81 F. Horn, supra n 5, pp 165–6; P.-H. Imbert, supra n 57, pp 258–60. See eg the Canadian reservation to the 1971 Convention on Psychotropic Substances (Multilateral Treaties deposited with the Secretary-General (available at: http://treaties.un.org/), ch. VI, 16). F. Majoros is however more prudent with regard to these situations (supra n 74, pp 83–4). 82 P.-H. Imbert, supra n 57, p 258; B. Simma, supra n 71, p 61. 83 See Art. 20, para. 7 of the 1954 Convention concerning Customs Facilities for Touring. See R. Riquelme Cortado, Las reservas a los tratados, Lagunas y ambigüedades del Régimen de Viena (Murcia: Universidad de Murcia, 2004), p 212 (fn 44). 84 On the suitability of the Vienna regime for human rights treaties, see the commentary on Art. 19, at paras 35 ff. 85 The Human Rights Committee has considered in its General Comment No. 24 that: Although treaties that are mere exchanges of obligations between States allow them to reserve inter se application of rules of general international law, it is otherwise in human rights treaties, which are for the benefit of persons within their jurisdiction.… [Human rights] treaties, and the Covenant specifically, are not a web of inter-State exchanges of mutual obligations. They concern the endowment of individuals with rights. The principle of inter-State reciprocity has no place, save perhaps in the limited context of reservations to declarations on the Committee's competence under Article 41. (General Comment No. 24, CCPR/C/21/Rev.1/Add.6, 11 November 1994, paras 8 and 17) See also M. Coccia, ‘Reservations to Multilateral Treaties on Human Rights’, California Western Int'l LJ, 1985, vol. 15, pp 1–51 at p 37; R. Higgins, supra n 41, at p 11; P.-H. Imbert, supra n 57, p 153; M. Virally, ‘Le principe de réciprocité dans le droit international contemporain’, RCADI, 1967-III, vol. 122, pp 1–105 at pp 26–7. 86 See, on commodities treaties, H. G. Schermers, ‘The Suitability of Reservations to Multilateral Treaties’, 6 Nederlands Tijdschrift voor Internationaal Recht, 1959, pp 350–61 at p 356; and D. W. Greig, supra n 80, p 140. 87 F. Horn, supra n 5, pp 164–5. 88 P. de Cesari, supra n 59, pp 149–74; and F. Majoros, supra n 74, pp 73–109.

89 G. Fitzmaurice, The Law and Procedure of the International Court of Justice, vol. I (Cambridge, Cambridge University Press, 1986), p 412. 90 R. Baratta has considered in this regard: anche in ipotesi di riserve a norme poste dai menzionati accordi l'effetto di reciprocità si produce, in quanto né la prassi, né i princìpi applicabili in materia inducono a pensare che lo State riservante abbia un titolo giuridico per pretendere l'applicazione della dispositione da esso riservata rispetto al soggetto non autore della riserva. Resta nondimeno, in capo a tutti i soggetti che non abbiano apposto la stessa riserva, l'obbligo di applicare in ogni caso la norma riservata a causa del regime solidaristico creato dall'accordo. (supra n 70, p 294) See also D.W. Greig, supra n 80, p 140. The Model Final Clauses for Conventions and Agreements concluded within the Council of Europe clearly expresses this idea (supra n 74). 91 See Art. 20, para. 4(b) and its commentary, at paras 110–15. 92 See infra paras 61–2. 93 See the commentary on Art. 20, at paras 112–13. 94 Ibid. See also F. Horn, supra n 5, p 170. 95 See supra paras 5 and 6 and the commentary on Art. 20, at paras 112–13. See also D. W. Greig, supra n 80, p 146; and F. Horn, supra n 5, p 170. 96 See the commentary on Art. 20, at para. 114. 97 YILC, 1966, vol. II, p 209, para. 2 of the commentary on draft Art. 19. 98 D. W. Greig points out that ‘with the adoption of the more flexible approach to unrestricted multilateral treaties in Art. 20(4), it became necessary to invent a rule to be applied between a reserving and an objecting State’ (supra n 80, p 146, emphasis added). This confirms that Art. 21, para. 3 did not constitute, in 1969, a customary norm (R. W. Edwards, Jr, supra n 29, p 398). However, there is no doubt today as to the customary status of the rule reflected in this provision (see supra para. 12). 99 See the commentary on Art. 20, at paras 114–15. 100 Ibid, paras 116–19. 101 See supra para. 20. 102 See the commentary on Art. 20, at paras 59–61. 103 See supra para. 14. 104 R. Baratta expressed the idea that: A questo punto, è agevole evidenziare come, in epoca posteriore alla trasposizione del diritto dei trattati in un corpus iuris di norme scritte, la prassi abbia generato nuovi modelli giuridici di obiezioni, dettati verosimilmente della necessità di rispondere a bisogni non emersi e comunque non considerati al momento della ‘codificazione’. (supra n 70, p 387) 105 On this notion, see also the commentary on Art. 20, at para. 110. 106 The non-application of the reservation grants to the objection a so-called ‘supermaximum effect’. See on this point, infra para. 45 and the commentary on Art. 20, at para. 118. 107 ‘Reservations to Multilateral Treaties: How International Legal Doctrine Reflects World Vision’, Harv Int'l LJ, 1982, vol. 23, pp 71–116 at p 102. 108 Ibid. 109 See eg M. Coccia, supra n 85, p 35; G. Gaja, supra n 32, pp 326–9; J. Klabbers, ‘Accepting the Unacceptable? A New Nordic Approach to Reservations to Multilateral Treaties’, Nordic J Int'l L, 2000, vol. 69, pp 179–93 at p 181; J. M. Ruda, supra n 28, pp 198–9; L. SucharipaBehrmann, ‘The Legal Effects of Reservations to Multilateral Treaties’, Austrian Review of International and European Law, 1996, vol. 1, pp 67–88 at p 74; K. Zemanek, ‘Some Unresolved Questions Concerning Reservations in the Vienna Convention on the Law of Treaties’ in J. Makarczyk (ed), Essays in International Law in Honour of Judge Manfred Lachs (The Hague: Kluwer, 1984), pp 332–3. 110 YILC, 1965, vol. I, 814th meeting, 29 June 1965, p 271, para. 5. See also ibid, 800th meeting, 11 June 1965, p 174, para. 40 (Mr Tsuruoka). 111 Summary Records (A/CONF.39/11/Add.1), supra n 28, 11th plenary meeting, 30 April 1969, p 36, before para. 5 (emphasis added). 112 Ibid, para. 10 (by 94 votes to 0). 113 A/CONF.39/L.49, supra n 28. 114 Summary Records (A/CONF.39/11/Add.1), supra n 28, 32nd plenary meeting, 20 May 1969, pp 179–80, para. 55. The Dutch representative had in mind the case of an objection by which its author did not purport to exclude the application of a treaty provision, but only to modify its application. See also the intervention made by the Soviet representative (ibid, p 180, para. 60). 115 Ibid, 33rd plenary meeting, 21 May 1969, p 181, para. 12. 116 Ibid, para. 2. 117 F. Horn, supra n 5, pp 173–4.

118 See supra paras 23–31. 119 Supra n 33, p 42, para. 61. 120 See also supra para. 12. 121 P.-H. Imbert, ‘La question des réserves dans la décision arbitrale du 30 juin 1977 relative à la délimitation du plateau continental entre la République française et le Royaume-Uni de Grande-Bretagne et d'Irlande du Nord’, AFDI, 1978, vol. 24, pp 29–58 at p 46; Sir Ian Sinclair, ‘The Vienna Convention on the Law of Treaties: The Consequences of Participation and Nonparticipation’, ASIL Proc, 1984, vol. 78, pp 271–5 at p 274. 122 See in particular B. Simma, supra n 34, pp 667–8; R. Riquelme Cortado, supra n 83, pp 300–5. 123 See also G. Gaja, supra n 32, pp 327–8, and the commentary on Art. 20, at para. 118 in fine. 124 Official Records of the General Assembly, 65th session, Supplement No. 10 (A/65/10), p 169. 125 See supra para. 43. 126 Summary Records (A/CONF.39/11/Add.1), supra n 28, 33rd plenary meeting, 21 May 1969, p 181, para. 9 (United States). 127 Ibid, para. 10. 128 ‘Reservations to Non-Restricted Multilateral Treaties’, BYBIL, 1976–77, vol. 48, pp 67–92 at p 86. 129 See B. Clark, ‘The Vienna Convention Reservations Regime and the Convention on Discrimination Against Women’, AJIL, 1991, vol. 85, pp 281–321 at p 308; M. Coccia, supra n 85, p 36; G. Gaja, supra n 32, p 327; P.-H. Imbert, supra n 57, p 157; J. M. Ruda, supra n 28, p 199; Sir Ian Sinclair, The Vienna Convention on the Law of Treaties (2nd edn, Manchester: Manchester University Press, 1984), p 76; F. Horn, supra n 5, p 173; and J. Klabbers, supra n 109, pp 186–7. See also the considerations of the Dutch representatives explaining the joint amendment, Summary Records (A/CONF.39/11/Add.1), supra n 28, 32nd plenary meeting, 20 May 1969, pp 179–80, para. 55. 130 See the commentary on Art. 20, at para. 110. 131 P.-H. Imbert, supra n 57, p 157. 132 K. Zemanek, supra n 109, p 332. 133 Official Records of the General Assembly, 65th session, Supplement No. 10 (A/65/10), p 155. 134 See supra paras 28–31. 135 F. Horn, supra n 5, p 175. 136 Supra n 33, p 42, para. 62. 137 G. Teboul, supra n 64, pp 708–9, paras 32–3. See also supra para. 29. 138 Multilateral Treaties deposited with the Secretary-General (available at: http://treaties.un.org/), ch. III, 6. See also the Dutch objection to several reservations made to the Vienna Convention on Diplomatic Relations, ibid, ch. III, 3; or the US objection to the Syrian reservation made to the Vienna Convention on the Law of Treaties: The United States Government will consider that the absence of treaty relations between the United States of America and the Syrian Arab Republic with regard to certain provisions in Part V will not in any way impair the duty of the latter to fulfill any obligation embodied in those provisions to which it is subject under international law independently of the Vienna Convention on the Law of Treaties (ibid, ch. XXIII, 1). 139 R. Riquelme Cortado, supra n 83, p 293. 140 See infra para. 60. 141 See the reservations formulated by Algeria, Belarus, China, Cuba, Guatemala, the Syrian Arab Republic, Ukraine, the USSR, Tunisia, and Vietnam (Multilateral Treaties deposited with the Secretary-General (available at: http://treaties.un.org/), ch. XXIII, 1). Bulgaria, Hungary, Mongolia, and Czechoslovakia had also formulated reservations in the same sense, but withdrew them in the 1990s (ibid). The German Democratic Republic had also formulated such a reservation to Art. 66 (ibid). 142 This is the case of Germany and Denmark (ibid). 143 With regard to the Syrian reservation (ibid). 144 Egypt's objection is not related to a specific reservation but to all reservations purporting to exclude the application of Art. 66 (ibid). 145 With regard to every reservation purporting to exclude the application of Art. 66 (ibid). 146 With regard to the reservation formulated by Tunisia (ibid). 147 In relation to any State having formulated a reservation concerning the disputesettlement procedure (ibid). This general declaration has subsequently been reiterated with regard to specific reservations (ibid). 148 With regard to any reservation purporting to exclude the dispute-settlement provisions, in general, and with regard to the Syrian and Tunisian reservations, in particular (ibid). 149 To the extent of its declaration of 5 June 1987 and excluding the case of the reservation

made by Vietnam. See infra n 151. 150 The objections concern the Syrian and Tunisian reservation and have been made notwithstanding the fact that the United States are not a contracting State to the Vienna Convention (ibid). 151 The United Kingdom asserted its objection with the intention of precluding the entry into force of the Convention with regard to the Syrian and Tunisian reservations. The effect of these qualified objections has been attenuated a posteriori by the declaration dated 5 June 1987 which states that the United Kingdom is not opposed to the entry into force of the Convention with regard to States having formulated reservations to Art. 66 or to the Convention's Annex while excluding the application of Part V of the Convention with regard to these States. This declaration which was reiterated in 1989 (with regard to the Algerian reservation) and in 1999 (with regard to the reservation formulated by Cuba) states that: With respect to any other reservation the intention of which is to exclude the application, in whole or in part, of the provisions of article 66, to which the United Kingdom has already objected or which is made after the reservation by the Government of the Union of Soviet Socialist Republics, the United Kingdom will not consider its treaty relations with the State which has formulated or will formulate such a reservation as including those provisions of Part V of the Convention with regard to which the application of article 66 is rejected by the reservation. (ibid) However, in 2002, the United Kingdom made a ‘maximum effect’ objection with regard to the reservation formulated by Vietnam (ibid). 152 Ibid. 153 A. Pellet, Eighth Report on reservations to treaties, A/CN.4/535 and Add.1, para. 95. 154 See supra paras 43–50. 155 See infra para. 60. 156 Supra n 32, p 326. See also R. Baratta, supra n 70, p 385. 157 J. Sztucki, ‘Some Questions Arising from Reservations to the Vienna Convention on the Law of  Treaties’, GYBIL, 1977, vol. 20, pp 277–305 at p 297. The author suggests that these declarations constitute: objections only to the initial reservations and own reservations of the objecting States in the remaining part. Indeed, it is not the combination of the elements of objection and of reservation in a single statement officially named and listed as if it was homogenous (e.g. as a reservation in its entirety) which may be somewhat confusing in the case of extended objections. Such combinations occur also elsewhere, although they are not very common. (ibid, p 291) 158 Multilateral Treaties deposited with the Secretary-General (available at: http://treaties.un.org/), ch. XXIII, 1. 159 Ch. Tomuschat, ‘Admissibility and Legal Effets of reservations to Multilateral Treaties’, ZaöRV, 1967, vol. 27, pp 463–82 at p 466. See also the commentary on Art. 20, at paras 18–22. 160 See draft guideline 2.3.1 (Late formulation of a reservation), Official Records of the General Assembly, 56th session, Supplement No. 10 (A/56/10), pp 477–89. The Belgium reservation has indeed been formulated tardily—ten months after accession to the Convention. (See supra n 158.) 161 ‘Article 66 of the Convention shall not be applied to the United Republic of Tanzania by any State which enters a reservation on any provision of part V or the whole of that part of the Convention’ (Multilateral Treaties deposited with the Secretary-General (available at: http://treaties.un.org/), ch. XXIII, 1). On this particular reservation, see J. Sztucki, supra n 157, p 297. 162 F. Horn, supra n 5, p 179. 163 Official Records of the General Assembly, 60th session, Supplement No. 10 (A/60/10), pp 186–202. The Special Rapporteur insisted on keeping the formula ‘to modify the legal effects of the reservation’ within the definition in order to cover the case of ‘intermediary effect’ objections (ibid, 59th session, Supplement No. 10 (A/59/10), p 245, para. 293(d)). 164 See A. Pellet, First Report on reservations to treaties, A/CN.4/470, YILC, 1995, vol. II, Part One, p 141, para. 121; and Fourteenth Report, A/CN.4/614 and Add.1 and 2, para. 103. 165 A. Pellet, Eighth Report, A/CN.4/535 and Add.1, supra n 153, para. 95. 166 Ibid. 167 J. Sztucki, supra n 157, pp 286–7 (with further references). 168 Objection made by the Netherlands, supra n 147. 169 Objection, dated 5 June 1987, made by the United Kingdom in response to the reservation formulated by the USSR (supra n 149). 170 Official Records of the General Assembly, 65th session, Supplement No. 10 (A/65/10), pp 87–8. 171 Ibid, p 166. 172 See the commentary on Art. 20, at paras 110 ff. 173 Official Records of the General Assembly, 65th session, Supplement No. 10 (A/65/10), pp 151–2.

174 F. Horn, supra n 5, p 142. See also supra para. 17. 175 F. Horn, supra n 5, pp 142–3. 176 This idea is enshrined in Arts 40 and 41 of the Vienna Convention. 177 YILC, 1966, vol. II, p 209, para. 1 of the commentary. 178 This is indeed the case for reservations to commodities treaties, where the reciprocity principle is incapable of restoring the balance between the parties (H. G. Schermers, supra n 86, p 356). Article 64, para. 2(c) of the 1968 International Sugar Agreement seemed to provide for the possibility of adapting the provisions of the instrument if their application is jeopardized by the reservation: In any other instance where reservations are made [ie in the case where the reservation affects the economic functioning of the Agreement], the Council shall examine them and decide, by special vote, whether, and if so under what conditions, they are to be accepted. Such reservations will only become effective after the Council has taken its decision on the matter. (emphasis added) See also P.-H. Imbert, supra n 57, p 250; F. Horn, supra n 5, pp 142–3. 179 On the notion of established reservations, see supra paras 18–20. 180 The situation is somewhat different when unanimous acceptance of the reservation is necessary. See supra para. 38. 181 See supra para. 20 (in fine). * Researcher at the Centre de Droit international (CEDIN) de Nanterre, Université Paris Ouest, Nanterre–La Défense Paris, France; Consultant in public international law.

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Volume I, Part II Conclusion and Entry into Force of Treaties, s.2 Reservations, Art.21 1986 Vienna Convention Daniel Müller From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Treaties, reservations and declarations — Treaties, entry into force

(p. 565) 1986 Vienna Convention Article 21 Legal effects of reservations and of objections to reservations 1. A reservation established with regard to another party in accordance with articles 19, 20 and 23: (a) modifies for the reserving State or international organization in its relations with that other party the provisions of the treaty to which the reservation relates to the extent of the reservation; and (b) modifies those provisions to the same extent for that other party in its relations with the reserving State or international organization. 2. The reservation does not modify the provisions of the treaty for the other parties to the treaty inter se. 3. When a State or an international organization objecting to a reservation has not opposed the entry into force of the treaty between itself and the reserving State or organization, the provisions to which the reservation relates do not apply as between the reserving State or organization and the objecting State or organization to the extent of the reservation.

Bibliography See the general bibliography of the commentary to Articles 19 and 21 of the 1969 Vienna Convention 1. The ILC did not question Article 21 when considering the topic of treaties concluded between States and international organizations or between two or more international organizations. Only some minor drafting changes have been adopted, specifically to put international organizations on the same footing as States.1 2. It is worth noting that Article 21 was adopted by the Commission in first reading even before the difficult question concerning the right to or the prohibition of the formulation of reservations was resolved.2 The legal effects produced by a reservation do not depend on this issue but are an intrinsic element of reservations, as shown by the definition of the latter.3 During the discussion, several members of the Commission expressed the view that draft Article 21 constituted the ‘logical consequence’4 of Articles 19 and 20. Mr Calle y Calle considered with even more clarity that: (p. 566) if reservations were admitted, their legal effect was obviously to modify the relations between the reserving party and the party with regard to which the reservation was established. That truth was stated in paragraph 1 [of draft Article 21].5 As was the case during the drafting of the corresponding provision in the 1969 Convention,6 the effects of reservations seemed self-evident and did not, in the opinion of the Special Rapporteur and of members of the Commission, deserve much discussion and comment. Thus, Reuter was correct in thinking ‘it wise not to depart from [the 1969] Convention where the concept of reservations was concerned’.7 This strong support confirms, once again, the customary character of the rules determining the legal effects of a reservation as reflected in both Vienna Conventions.8 3. What was indeed true with regard to the ‘normal’ effect of an established reservation as provided for under paragraph 1, was more difficult to accept for the rule laid down in paragraph 3 of the 1969 Convention concerning the modification of the treaty relationship between the author of a reservation and the author of a ‘minimum effect’ objection.9 Paragraph 3 of the 1969 Convention was not a product of codification:10 it had been hastily drafted by the Commission and was the object of important discussions and last-minute modifications during the 1968–69 Vienna Conference.11 Nevertheless, the ILC considered that paragraph 3 was sufficiently clear12 and acceptable13 and adopted it again in 1977, subject only to the necessary drafting changes in order to include international organizations. With this endorsement of paragraph 3, the Commission confirmed the rule contained therein as being part of the ‘flexible’ Vienna regime of reservations, just a few days before the Court of Arbitration also did so in the case concerning the Delimitation of the continental shelf between the United Kingdom of Great Britain and Northern Ireland, and the French Republic.14

References 4. It is, however, surprising that Article 21 of the 1986 Convention contains the very same lacuna as the corresponding provision of the 1969 Convention. The 1986 Vienna Conference did not pay due attention to the provision,15 adopted without a vote,16 while scholars largely discussed the suitability and adaptability of Article 21 of the 1969 Convention, especially with regard to the issue of impermissible reservations, and with regard to ‘intermediary effect’ objections.17 Article 21 of the 1986 Convention does not openly respond to these issues. It merely (p. 567) follows the text of article 21 of the Vienna Convention; the wording has been

adapted to the various categories of treaties covered by the present draft articles, but no changes of substance have been made.18 *

DANIEL MÜLLER

Footnotes: 1 P. Reuter, Fourth Report on the question of treaties concluded between States and international organizations or between two or more international organizations, A/CN.4/285, YILC, 1975, vol. II, p 37, para. 5 of the general commentary to section 2; Fifth Report on the question of treaties concluded between States and international organizations or between two or more international organizations, A/CN.4/290 and Add.1, YILC, 1976, vol. II, Part One, pp 145–6; and the presentation of draft Art. 21 by the Special Rapporteur, YILC, 1977, vol. I, 1434th meeting, 6 June 1977, p 98, para. 6. See also the ‘commentary’ on draft Arts 21, 22, and 23 adopted in second reading in YILC, 1982, vol. II, Part Two, p 37. 2 See the commentary on Art. 19 of the 1986 Convention. 3 See the commentary on Art. 21 of the 1969 Convention, at para. 2. 4 YILC, 1977, vol. I, 1434th meeting, 6 June 1977, p 99, para. 18 (Mr Dadzie); and ibid, p 98, para. 7 (Mr Tabibi). 5 Ibid, p 98, para. 8. 6 See the commentary on Art. 21 of the 1969 Convention, at para. 4. 7 YILC, 1977, vol. I, 1434th meeting, 6 June 1977, p 98, para. 4. 8 See the commentary on Art. 21 of the 1969 Convention, at paras 11–12. 9 See the commentary on Art. 20 of the 1969 Convention, at para. 110. 10 See the commentary on Art. 21 of the 1969 Convention, at para. 11. 11 Cf ibid, paras 5–10 and 43–4. 12 YILC, 1977, vol. I, 1434th meeting, 6 June 1977, p 98, para. 8 (Mr Calle y Calle). 13 Ibid, p 98, para. 7 (Mr Tabibi). 14 Award of 30 June 1977, RIAA, vol. XVIII, p 42, para. 61. 15 The only modification made by the Conference consisted in replacing ‘author of the reservation’ in para. 3 of the English and Russian versions by ‘the reserving State or organization’ (United Nations Conference on the Law of Treaties between States and International Organizations or between International Organizations, Official Records, Summary Records of the Plenary Meetings and of the Meetings of the Committee of the Whole, Vienna, 18 February–21 March 1986 (A/CONF.129/16), 5th plenary meeting, 18 March 1986, p 14, para. 61). 16 Ibid, para. 67. 17 See the commentary on Art. 21 of the 1969 Convention, at paras 49–56. 18 YILC, 1977, vol. II, Part Two, p 114 (commentary on Art. 21 adopted in first reading). Mr El-Erian considered during the discussion that ‘the Commission should not engage in a discussion of the provisions of the Vienna Convention relating to the very difficult problem of reservations, but should consider how to adapt those rules to the topic under consideration’ (YILC, 1977, vol. I, 1434th meeting, 6 June 1977, p 99, para. 15). * Researcher at the Centre de Droit international (CEDIN) de Nanterre, Université Paris Ouest, Nanterre–La Défense Paris, France; Consultant in public international law.

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Volume I, Part II Conclusion and Entry into Force of Treaties, s.2 Reservations, Art.22 1969 Vienna Convention Alain Pellet From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Treaties, reservations and declarations — Customary international law — Object & purpose (treaty interpretation and) — Unilateral acts — Treaties, amendments and modification

(p. 568) 1969 Vienna Convention1 Article 22 Withdrawal of reservations and of objections to reservations 1. Unless the treaty otherwise provides, a reservation may be withdrawn at any time and the consent of a State which has accepted the reservation is not required for its withdrawal. 2. Unless the treaty otherwise provides, an objection to a reservation may be withdrawn at any time. 3. Unless the treaty otherwise provides, or it is otherwise agreed: (a) the withdrawal of a reservation becomes operative in relation to another contracting State only when notice of it has been received by that State; (b) the withdrawal of an objection to a reservation becomes operative only when notice of it has been received by the State which formulated the reservation. A. General characteristics 569 Origins, purpose, and objective: the notion of withdrawal of reservations and objections 569 The unilateral character of the withdrawal 570 Customary and auxiliary status 574 B. Time of withdrawal 575 C. Effects of withdrawal or modification of a reservation or an objection 576 Effects of withdrawal or modification of a reservation 576 Effective date of withdrawal of a reservation 576 The consequences of the withdrawal or modification of a reservation 580 The consequences of a total withdrawal 580 The modification of a reservation 582 Restriction of the scope of a reservation (partial withdrawal) 582 Enlargement of the scope of a reservation 587 Effects of withdrawal of an objection 589

Bibliography Flauss, J.-F., ‘Note sur le retrait de la France des réserves aux traités internationaux’, AFDI, 1986, pp 857–67 Migliorino, L., ‘La revoca di riserve e di obiezioni a riserve’, RDI, 1994, pp 315–34 Pellet, A., Seventh Report, A/CN.4/526/Add.2, paras 61–184, Add.3, paras 185–221 (YILC, 2002, vol. II, Part One); and Eighth Report, A/CN.4/535, paras 33–68, Add.1, paras 69–106 (YILC, 2003, vol. II, Part One) on the withdrawal or modification of reservations and of interpretative declarations; and Eleventh Report on the withdrawal or modification of the objections (A/CN.4/574, YILC, 2006), and the corresponding reports of the ILC to the General Assembly: (p. 569) respectively A/58/10 (2003), pp 189–258 and A/59/10 (2004), pp 269–80 (these reports are published in YILC, 2003 and 2004, vol. II, Part Two and, YILC, 2006 and 2007, vol. II, Part Two)

A. General characteristics Origins, purpose, and objective: the notion of withdrawal of reservations and objections 1. Uncommon in the past,2 the withdrawal of reservations is today a frequent phenomenon.3 The heightened recourse to this possibility is due to the accession to independence of numerous States, leading them to review the reservations formulated by their predecessor States.4 But it is also, and especially, due to changes in the political regimes of the East European States, which renounced a large number of reservations formulated during the communist era, notably in the field of human rights or submission of disputes to the International Court of Justice (ICJ).5 2. As a consequence of these events, there has been growing interest in the provisions of the Vienna Convention of 1969, two of the provisions of which concern directly the withdrawal of reservations and objections. In fact, in addition to Article 22, Article 23(4) concerns the form (necessarily in writing) that these acts must take. 3. For its part, Article 22 gives relatively precise indications concerning: • the time of the withdrawal; • the uselessness of acceptance by other parties; and

• the moment when the withdrawal becomes effective. The Article is, however, silent on the question of the nature of the effects attached to the withdrawal. Moreover, Article 22, as many other provisions of the Convention, contains no definition of the term ‘withdrawal’. 4. It follows from the requirement of written form, imposed by Article 23(4), that, for the purposes of the Convention, the withdrawal of a reservation or an objection must in all cases be contained in a written act, which excludes the possibility of ‘implicit’ withdrawals, but raises other problems.6 Moreover, and especially, Articles 22 and 23 do not qualify the withdrawal that they are concerned with: must the withdrawal, of a reservation or an objection, be total such that it entails the pure and simple disappearance of the reservation or the objection in question? Or, can it be partial? And if this is so, does it not imply the acceptance that a reservation (or an objection) can be modified outside the timing established in Articles 2(1)(d), 19, and 20(5), for the formulation of reservations? (p. 570) 5. These questions were addressed by the ILC in 2003 then in 2008, during the Commission's 55th and 60th sessions, in the framework of the preparation of the Guide to practice on reservations to treaties, a topic the Commission re-took for consideration in 1995.7 This commentary will address these questions, as well as the question of the effects of the withdrawal of a reservation or an objection.8

The unilateral character of the withdrawal 6. According to Article 22(1) the withdrawal of a reservation is a unilateral act. This paragraph puts an end to the controversy that for a long time fascinated legal scholarship concerning the legal character of the withdrawal: was it a unilateral or a conventional act?9 This divergence of opinion appeared surreptitiously during the travaux préparatoires of Article 22. 7. The issue of the withdrawal of reservations was addressed by the ILC's Special Rapporteurs on the law of treaties only relatively late and, then, only summarily. Almost exclusively concerned with the problem of the criteria of legality of reservations,10 Brierly and Sir Hersch Lauterpacht did not dedicate any provisions to the question of withdrawal. Only Lauterpacht drew attention to certain propositions made in April 1954 within the Human Rights Commission concerning reservations to the ‘Covenants of Human Rights’, which expressly allowed the withdrawal of reservations through a simple notification to the UN Secretary-General.11 Possibly having this precedent in mind, Sir Gerald Fitzmaurice in 1956 proposed a draft Article 40(3), according to which: A reservation, though admitted, may be withdrawn by formal notice at any time. If this occurs, the previously reserving State becomes automatically bound to comply fully with the provision of the treaty to which the reservation related, and is equally entitled to claim compliance with that provision by the other parties.12 8. This draft was not discussed by the Commission, but in its first report, Sir Humphrey Waldock took up the idea in draft Article 17, concerned with the ‘power to formulate and withdraw reservations’, which declared the ‘absolute right of a State to withdraw a reservation unilaterally, even when the reservation has been accepted by other States’.13 The first sentence of paragraph 6 of this Article established that: A State which has formulated a reservation is free to withdraw it unilaterally, either in whole or in part, at any time, whether the reservation has been accepted or rejected by the other States concerned.14 (p. 571) 9. This provision did not give rise to discussions in the plenary session, but the new draft Article 19 adopted by the Drafting Committee in that same year, exclusively concerned with the ‘withdrawal of reservations’, contained a paragraph on the effects of the withdrawal.15 The draft Article was adopted by the ILC, with the insertion of a sentence in the first paragraph of the draft specifying the date of entry into force of the withdrawal,16 as requested by Bartoš.17 According to draft Article 22 adopted in first reading: 1. A reservation may be withdrawn at any time and the consent of a State which has accepted the reservation is not required for its withdrawal. Such withdrawal takes effect when notice of it has been received by the other States concerned. 2. Upon withdrawal of a reservation the provisions of article 21 cease to apply.18 10. The first paragraph of the commentary to these provisions probably echoes the discussions which took place within the Drafting Committee, and it concerns precisely the question of the unilateral character of the withdrawal. It states that: It has sometimes been contended that when a reservation has been accepted by another State it may not be withdrawn without the latter's consent, as the acceptance of the reservation establishes a regime between the two States which cannot be changed without the agreement of both. The Commission, however, considers that the preferable rule is that the reserving State should in all cases be authorized, if it is willing to do so, to bring its position into full conformity with the provisions of the treaty as adopted.19 11. Three States reacted to draft Article 22,20 leading the Special Rapporteur to modify the draft. He proposed to:21 • give the provision an auxiliary status;

• specify that the notification of withdrawal should be made by the depository, if one existed; and • a partial moratorium on the date of effect of the withdrawal. 22 12. In connection with the discussion of these proposals, two members of the Commission maintained that when a reservation formulated by a State is accepted by another State, there is an agreement between the two.23 But this thesis did not obtain the support of the majority of the members of the Commission, who preferred the idea (p. 572) expressed by Bartoš, according to whom ‘[n]ormally, a treaty was concluded in order to be applied in full; reservations constituted an exception which was merely tolerated’.24 13. Following this discussion, the Drafting Committee proposed a different wording for the Article, taking up the two ideas expressed in paragraph 1 of the 1962 text.25 It is this text that was finally adopted,26 and which became the final draft of Article 20 (‘withdrawal of reservations’): 1. Unless the treaty otherwise provides, a reservation may be withdrawn at any time and the consent of a State which has accepted the reservation is not required for its withdrawal. 2. Unless the treaty otherwise provides or it is otherwise agreed, the withdrawal becomes operative only when notice of it has been received by the other contracting States.27 14. The commentary to this provision was similar to that of the 1962 provision, although it added some elements of clarification.28 The Commission took the view that: the preferable rule is that unless the treaty otherwise provides, the reserving State should always be free to bring its position into full conformity with the provisions of the treaty as adopted by withdrawing its reservation.29 15. During the Vienna Conference, the text of this draft Article was adopted without modifications in Article 22 of the Convention, despite several proposals for amendment.30 Nevertheless, at the suggestion of Hungary, two important additions were adopted: • first, it was decided to align the procedure for the withdrawal of objections to reservations with that of withdrawal of reservations; 31 and • second, a fourth paragraph was added to Article 23 with a view to specifying that the withdrawal of reservations and objections had to be made in writing. 32 16. In his Fourth Report on treaties concluded between States and international organizations or between two or more international organizations, Paul Reuter proposed adding a reference to international organizations in the text of Article 22.33 The text proposed was adopted without modifications by the Commission,34 and it was retained (p. 573) during the second reading of the Articles.35 The Vienna Conference of 1986 did not add any changes of substance to the Article.36 17. It appears from the drafting history of Article 22 that this Article was not objected to. Even the question of the unilateral character of the act of withdrawal, largely disputed in legal scholarship,37 gave rise only to very little discussion both within the Commission and at Vienna. The position adopted in this respect, reflected in paragraph 1 of Article 22, is justified: by definition, a reservation is a unilateral act;38 certainly States can achieve through bilateral agreements results equivalent to those achieved through reservations, by moulding the obligations deriving from the treaty between the parties to the bilateral agreement; but the choice of resorting to a reservation entails, logically and by contrast, a resort to unilateralism. There would thus be no logic to request the consent of other contracting parties to undo what the expression of the unilateral will of the State has done. 18. It is true that, in accordance with Article 20 of the Vienna Convention, a reservation made by a State and not expressly allowed by the treaty has effects only in relation to the States that have accepted it, even if only implicitly. Nevertheless, on the one hand, this consent does not modify the legal character of the reservation—it certainly gives effect to the reservation, but it is a separate unilateral act—and, on the other hand, this is an extremely formalist reasoning that fails to take into account the advantage of limiting the number and scope of reservations in the interest of the integrity of the treaty. As Bartoš correctly pointed out,39 the parties to a multilateral treaty in principle expect that the treaty will be accepted in its entirety. Also, the parties expect that there exists at least a presumption that reservations are but a necessary evil. It is interesting to note that the withdrawal of reservations, often regulated,40 is never prohibited by conventional provisions.41 In the same spirit, both international organizations and the organs of control established in human rights treaties continually encourage States to withdraw the reservations formulated to these treaties.42 19. Besides, the recognition of a (unilateral) right of withdrawal is in accordance with the letter or spirit of the express provisions contained in treaties concerning withdrawal of reservations, which are either worded in similar terms to those of Article 22(1),43 or are aimed at encouraging States to withdraw their reservations ‘as soon as circumstances permit’.44 In addition, it does not appear that the unilateral withdrawal of reservations gives rise to special difficulties.45

References (p. 574) 20. Hardly contestable in relation to reservations, the unilateral character of the withdrawal of objections is absolutely indisputable.46 Indeed, it follows from the combination

of the provisions in Articles 20 and 21 that as long as a reservation has not been ‘established’, so that it can only produce legal effects if it has been accepted in one way or another by the other contracting States,47 objections are sufficient in themselves. An objection displays its effects through the sole will of the objecting State and within the limits by which it is unilaterally established.48 21. It is moreover significant that paragraphs 1 and 2 of Article 22 have different wordings on this point: while paragraph 1 specifies that the reservation can be withdrawn ‘at any time and the consent of a State which has accepted the reservation is not required for its withdrawal’, paragraph 2 does not contain any similar specification in relation to objections. However, such a difference in the drafting must not be interpreted a contrario; it simply means that, in the case of objections the purely unilateral nature of the withdrawal is common sense. This is evidenced, moreover, by the fact that the part of the Hungarian amendment aimed at making the text of paragraphs 1 and 2 similar,49 was rejected at the request of the British delegation, according to which: the last phrase of the proposed new paragraph 2 was superfluous, in view of the differing nature of reservations and objections to reservations; the consent of the reserving State was self-evidently not required for the withdrawal of the objection, and an express provision to that effect might suggest that there was some doubt on the point.50

Customary and auxiliary status 22. In the case of withdrawal of objections, it is difficult to speak of custom in the almost complete absence of practice.51 But, these are rules of common sense difficult to contest. 23. In relation to the withdrawal of reservations, as noted by the Commission,52 ‘the customary status of the rules of [Article 22] seems not to be in question53 and is in line with current practice’.54

References 24. As it happens, ‘customary’ does not mean ‘peremptory’ and it goes without saying that the majority of the provisions of the Vienna Convention and, in any event, all of the rules of a procedural character contained therein are of an auxiliary character to the will of States and must be read ‘subject to conventional provisions to the contrary’. In this (p. 575) respect, the repetition of the wording ‘[u]nless the treaty otherwise provides…’ at the beginning of each paragraph of Article 22 appears superfluous and does not add anything to the text.55 25. This specification, which appeared in the final draft of the ILC adopted in 1966 but not in the draft adopted in 1962,56 was added by Special Rapporteur Waldock as a follow up to the commentaries received from governments,57 and was ratified by the Commission. It constitutes a partial answer to the concerns that certain members of the Commission and certain States had voiced in relation to the difficulties that could derive from the sudden withdrawal of a reservation.58 To cope with these preoccupations, the ILC considered it expedient to include in its Guide to Practice on Reservation to Treaties a number of examples of alternative clauses that it could be wise to include in certain treaties, to avoid the inconveniences that can result from a mechanical application of Article 22.59

B. Time of withdrawal 26. Since reservations are considered a ‘necessary evil’,60 their withdrawal must be rendered as easy as possible. This justifies the fact that the withdrawal of a reservation can be made ‘at any time’,61 even before the entry into force of the treaty for the withdrawing State,62 although there appear to be no cases in which this has happened.63

References 27. This is all the more so in relation to the withdrawal of objections—rather rare in practice.64 They can be withdrawn at any moment,65 since objections depend solely upon the discretionary power of their author.66 In addition, while being of no help in the reestablishment of the treaty's integrity, the withdrawal also constitutes a simplification of conventional relations, which is another reason why withdrawals should be encouraged. (p. 576) 28. Although States do not often withdraw their interpretative declarations, this has happened on a few occasions.67 From the moment that, save for exceptions conventionally established, a ‘simple’ interpretative declaration can be ‘formulated at any time’,68 such a declaration can also be withdrawn at any time without special formalities. The situation is different, however, with respect to conditional interpretative declarations, which follow for their formulation the legal regime of reservations and must be formulated at the time of the expression of the State's consent to be bound.69 It inevitably follows that the rules applicable to their withdrawal are necessarily identical to those applicable to the withdrawal of reservations.

C. Effects of withdrawal or modification of a reservation or an objection Effects of withdrawal or modification of a reservation

29. Article 22 mixes rules concerning the form and procedure of the withdrawal with the question of its effects,70 which are difficult to dissociate from those of the reservation itself: the withdrawal puts an end to the effects of the reservation. Paragraph 3(a) is only concerned with the effects of the withdrawal of a reservation from the point of view of the date on which the withdrawal ‘becomes operative’; although throughout the preparatory work of this provision, the ILC occasionally considered the substantive question of what were the effects of the withdrawal.

Effective date of withdrawal of a reservation 30. Article 22(3)(a) of the 1969 Vienna Convention was not the object of separate discussion during the Vienna Conference of 1968–69, which engaged in the clarification71 of the text adopted by the ILC in second reading.72 Its adoption had raised a few debates within the Commission in 1962 and 1965. (p. 577) 31. While Fitzmaurice had planned, in his First Report in 1956, to study the effects of the withdrawal of a reservation,73 this issue was not included in Waldock's First Report, presented to the Commission in 1962.74 It was only during the Commission debates of 1962 that, for the first time and at the request of Bartoš, Article 22 included a mention that a withdrawal of a reservation ‘becomes operative when notice of it has been received by the other contracting States’.75 32. Following the adoption of this provision in first reading, three States reacted to it:76 on the one hand, the United States supported the Article and, on the other hand, Israel and the United Kingdom worried about the problems that a sudden withdrawal could cause to other States parties to the treaty. Their arguments led the Special Rapporteur to propose to add to Article 22 a paragraph (c), with a complex wording, confirming the immediate effect of withdrawals but subordinating it to the notice given to other contracting States, which would be free partially of responsibilities for three months from the date of the withdrawal. With this, Sir Humphrey meant to allow the other parties to bring ‘internal laws or administrative practices’ into line with the situation resulting from the withdrawal.77 33. Moreover, the criticism addressed to the excessive complexity of the solution proposed by Sir Humphrey, certainly a somewhat strange solution, initially divided the members of the Commission. Ruda, supported by Briggs, held that there was no reason to establish a grace period in the case of withdrawal of reservations since such a period did not exist in the case of the initial entry into force of the treaty following the manifestation of consent to be bound.78 But other members, notably Tunkin and Waldock himself, rightly remarked that the situations were different: in respect of ratification ‘a State could obtain all the time it required by the simple process of delaying ratification until it had made the necessary adjustments to its municipal law’; to the contrary, in the case of the withdrawal of a reservation ‘the change in the situation did not depend on the will of the other States concerned, but on the will of the reserving State which decided to withdraw its reservation’.79 34. Nevertheless, the Commission considered that the proposed partial moratorium found in Waldock's provision ‘would unduly complicate the situation and that, in practice, any difficulty that might arise would be obviated during the consultations in which the States concerned would undoubtedly engage’.80 Yet, in its final commentary, the Commission, while explaining its conclusion that to establish as a general rule the possibility for a State to (p. 578) dispose of a period of time ‘to adapt their internal law to the new situation resulting from it…would be going too far’, considered that it was convenient to leave to the States parties the possibility of regulating the question with an express provision in the treaty. Also, it considered that, even in the absence of a provision on this question, if a State needed a short period of time to adapt its internal law to the situation resulting from the withdrawal of the reservation, good faith would prevent the State author of the reservation from complaining of the difficulties caused by its own reservation.81 35. The Commission thus reintroduced, surreptitiously, in the commentary the exception that Waldock had clumsily attempted to include in the text of the future Article 22 of the Convention. 36. Having regard for the uncertainties resulting from the preparatory works of the Convention—which provide for a rule contradicted in the commentary—the ILC again addressed the question whether it was convenient to include in the Guide to Practice on Reservations to Treaties the point made by the Commission in the commentary of 1965. But it rejected this solution. Following the suggestion of its Special Rapporteur,82 the Commission considered that the ‘rule’ set out in the commentary manifestly contradicted that appearing in the Convention and its inclusion in the Guide would therefore depart from that rule. It would be acceptable only if it was felt to meet a clear need, but this is not the case here. In 1965, Sir Humphrey Waldock had ‘heard of no actual difficulty arising in the application of a treaty from a State's withdrawal of its reservation’;83 this would still seem to be the case many years later.84 37. On the other hand, the ILC included in its Guide to Practice a model clause reflecting the concerns expressed during the drafting of Article 22(3). The Commission recommended States insert this model clause in the treaties they conclude in the future and in relation to which the problems of adaptation to the situation created by the withdrawal of the reservation could arise.85 38. Besides, several treaties (concerning especially the status of persons or certain problems of private international law) establish a delay in the effectiveness of the withdrawal of reservations, longer than the common law period established in Article 22(3)(a). This delay is, in general, of one to three months calculated, in the majority of cases, from the date of notification of the withdrawal of the reservation to the depositary of the treaty and not to the 86

other States parties.86 39. To the contrary, a shorter time-lapse than that established in Article 22 can be especially provided for in the treaty. A treaty may also provide that it is up to the withdrawing State to determine the date upon which the withdrawal will take effect.87 In (p. 579) consequence, the Commission adopted two other model clauses reflecting this wording, in order to respond to the needs of the negotiators who wish to reduce the period established in the Convention or lessen its rigidity.88 40. Nevertheless, the principle is the one established in Article 22(3)(a) of the Convention. Of course, this principle does not escape criticism. In addition to the problems that may be caused by the withdrawal becoming operative from the moment notice of it is received by the other parties, which have been analysed supra,89 it has been said that this provision ‘does not completely resolve the question of the time factor’:90 certainly, thanks to the explicit mention introduced by the Conference of 1969,91 the other parties know precisely on what date the withdrawal takes effect, but the author of the withdrawal remains uncertain as to the date on which its new obligations take effect, since the notification may be delivered to the other States parties on different dates.92 This inconvenience, negligible in practice,93 is in any event compensated by the advantages derived from the rule of Article 22(3)(a), which accounts for concern to avoid the contracting parties of the State withdrawing their reservation may see their responsibility engaged for failure to respect the provisions of the treaty in their relations with that State, a failure due to their ignorance of the withdrawal of the reservation.94 This concern must be endorsed. 41. It can also be asked whether, in the absence of an express provision authorizing it, a State can freely establish the date on which the withdrawal of its reservation becomes operative. An affirmative answer is obvious, if the date established by the withdrawing State is posterior to the date on which the withdrawal would become operative if Article 22(3)(a) were applied: the time-lapse established in that provision aims to prevent other parties from being taken by surprise and to allow them to be fully informed of the scope of their engagements towards the State which withdraws its reservation. Thus, as long as information is prior and effective, there is no inconvenience for the reserving State to establish the date upon which its withdrawal will become operative. 42. But the answer is not the same if the date established by the reserving State is prior to the reception of the notification of withdrawal by the other contracting States: in this case, only the author of the withdrawal (and possibly the depository) know that the reservation has been withdrawn. This is so a fortiori when the withdrawal is assumed to be retroactive, as has sometimes occurred.95 In these types of cases, in the absence of an express clause in the treaty, the unilaterally expressed will of the reserving State could not prevail over the clear provision of Article 22(3)(a), if the other States parties oppose its unilateral decision. 43. It can nevertheless be asked whether it is convenient to reserve the cases concerning treaties which create ‘integral obligations’, in particular in the field of human rights. (p. 580) In such a situation, there is no inconvenience in permitting the withdrawal of the reservation to take effect immediately, and even retroactively, if the author of the reservation so wishes, for in this hypothesis, the rights of other States are not affected.96 This hypothesis was expressly provided for by the ILC in guideline 2.5.9, included in the Guide to Practice on Reservations to Treaties of 2003:

2.5.9. Cases in which a reserving State may unilaterally set the effective date of withdrawal of a reservation The withdrawal of a reservation takes effect on the date set by the withdrawing State where: (a)  That date is later than the date on which the other contracting States or international organizations received notification of it; or (b)  The withdrawal does not add to the rights of the withdrawing State or international organization in relation to the other contracting States or international organizations.97

The consequences of the withdrawal or modification of a reservation 44. Despite its general title, Article 22 is silent in relation to the most important question concerning the withdrawal of reservations: that of its effects. This aspect of the withdrawal of reservations was discussed during the travaux préparatoires of the 1969 Convention. However, the question of the modification of reservations was not dealt with, so it is convenient to make some remarks on this question in the present commentary.

The consequences of a total withdrawal 45. In his First Report on the law of treaties, Fitzmaurice had proposed that, once a reservation is withdrawn: the previously reserving State becomes automatically bound to comply fully with the provision of the treaty to which the reservation related, and is equally entitled to claim compliance with that provision by the other parties.98 Likewise draft Article 22(2), adopted in first reading by the ILC in 1962, established that ‘[u]pon withdrawal of a reservation the provisions of article 21 [concerning the application of reservations] cease to apply’.99 This sentence disappeared in the final draft of the Commission,100 despite the fact that, in plenary, Waldock had suggested that the Drafting

Committee discuss the possibility ‘that the effect of the withdrawal of a reservation might be that the treaty entered into force in the relations between two States between which it had not previously been in force’.101 46. During the Vienna Conference, certain amendments tended to re-establish a similar provision in the Convention.102 The Drafting Committee of the Conference, however, (p. 581) rejected them as it considered the amendments to be superfluous and that the effects of the withdrawal of a reservation were obvious.103 This is only partially true. 47. There is no doubt that ‘the effect of withdrawal of a reservation is obviously to restore the original text of the treaty’.104 But three situations should be distinguished. 48. In the relations between the reserving State and the States that have accepted the reservation (Art. 20(4) of the Convention), the reservation loses the effects that it produces pursuant to Article 21(1) of the Convention: when this situation occurs, the withdrawal of the reservation will have the effect to restore the original content of the treaty in the relations between the reserving State and the State which has accepted it. The withdrawal of the reservation creates the legal situation which would have existed if the reservation had not been made.105

References 49. The same is applicable to the relations between the State withdrawing its reservation and a State that had objected to the reservation but had failed to oppose it at the time of the entry into force of the treaty between itself and the reserving State. In this case, in accordance with Article 21(3) of the Convention, the provisions concerned with the reservation would not apply in the relations between the two parties: when this situation occurs, the withdrawal of the reservation has the effect to extend, in the relations between the reserving State and the objecting State, the application of the treaty to the provisions included in the reservation.106 50. The withdrawal of a reservation has radical effects when the objecting State had also opposed the entry into force of the treaty between itself and the reserving State. In this situation, the treaty enters into force on the date upon which the withdrawal becomes operative.107 ‘For a state…which had previously expressed a maximum-effect objection, the withdrawal of the reservation will mean the establishment of full treaty relations with the reserving State’.108 In other words, the withdrawal of a reservation (p. 582) entails the application of the treaty as a whole (unless, of course, other reservations, matched with ‘maximum’ objections, exist or unless the reservation is no longer valid for other reasons) in the relations between the State withdrawing its reservation and the other contracting States, whether these States have accepted or objected to the reservation, on the understanding that, in the case of objections, if the objecting State had opposed the entry into force of the treaty between itself and the author of the reservation, the treaty will enter into force only from the date on which the withdrawal becomes operative.

References 51. Guideline 2.5.7 of the ILC Guide to Practice on Reservations to Treaties (Effect of withdrawal of a reservation) reflects these different cases.109

The modification of a reservation 52. The Vienna Convention is completely silent on the subject of modifications to reservations. This question, which went practically without mention during the preparatory work,110 was nevertheless examined by the ILC within the framework of the Commission's Guide to Practice on Reservations to Treaties. The question of the modification of a reservation must be addressed in conjunction with the relative questions of the withdrawal of the reservation, on the one hand, and the late formulation of reservations, on the other hand.111 To the extent that the modification aims at restricting the scope of a reservation, it concerns a partial withdrawal of the reservation as originally formulated. This type of modification does not raise any problems of principle and is subjected to the general rules on withdrawal of reservations. To the contrary, if the modification has the effect of enlarging the scope of the existing reservation, it appears logical to begin from the idea that this is a late formulation of a reservation and that the relevant rules concerning the late formulation of a reservation should be applied.

Restriction of the scope of a reservation (partial withdrawal) 53. According to the prevailing doctrine, nothing stands in the way of the modification of a reservation insofar as this modification aims at restricting the scope of the original reservation. Similarly, the prevailing doctrine analyses this type of modification as a partial withdrawal.112 When such a modification is expressly provided for by the treaty, no problems exist. While this is relatively rare, there are reservation clauses to this effect or reservation clauses allowing the partial or total withdrawal of the reservation.113 The fact that partial or total withdrawals are mentioned simultaneously in numerous treaty clauses highlights the close relationship that exists between them. This relationship, confirmed in practice, is however sometimes contested in the literature. (p. 583) 54. During the preparation of the draft Articles on the law of treaties by the ILC, Waldock suggested the adoption of a draft Article placing the total and partial withdrawal of 114

reservations on an equal footing.114 Following the consideration of this draft by the Drafting Committee, it returned to the plenary stripped of any reference to the possibility of withdrawing a reservation ‘in part’,115 although no reason for this modification can be inferred from the summaries of the discussions. The most plausible explanation is that this seemed to be self-evident—‘he who can do more can do less’—and the word ‘withdrawal’ should probably be interpreted, given the somewhat surprising silence of the commentary, as meaning ‘total or partial withdrawal’. 55. The fact remains that this is not entirely self-evident and that practice and the literature appear to be somewhat undecided. Thus, in his work on reservations which appeared in 1979, Imbert regretted that the cases of modification of reservations aimed at restricting their scope of which he had knowledge had only been possible in the ‘absence of objections on the part of other contracting States’, and he emphasized that: it would be desirable to encourage this procedure, as it allows States to progressively adapt their participation in the treaty to the evolution of their national legislation, and can constitute a transition towards the complete withdrawal of reservations.116 56. In practice this seems to have been understood, at least in the European framework. Polakiewicz quotes a number of reservations to Conventions concluded within the framework of the Council of Europe which were modified without arousing opposition.117 For its part, the European Commission of Human Rights ‘showed a certain flexibility’ as to the time requirement set out in Article 57 (former Art. 64) of the European Convention on Human Rights limiting (notably in time) the possibility of formulating a reservation: As internal law is subject to modification from time to time, the Commission considered that a modification of the law protected by the reservation, even if it entails a modification of the reservation, does not undermine the time requirement of article 64. According to the Commission, despite the explicit terms of article 64,…to the extent that a law then in force in its territory is not in conformity…the reservation signed by Austria on 3 September 1958 (1958–1959) (2 Annuaire 88–91) covers…the law of 5 July 1962, which did not have the result of enlarging, a posteriori, the area removed from the control of the Commission.118

References (p. 584) 57. This latter clarification is essential and undoubtedly provides the key to this jurisprudence: it is because the new law does not enlarge the scope of the reservation that the Commission considered that it was covered by the reservation.119 Technically, what is at issue is not a modification of the reservation itself, but the effect of the modification of the internal law; nevertheless, it seems legitimate to make the same argument in relation to reservations. Moreover, in some cases, States formally modified their reservations to the European Convention on Human Rights (in the sense of diminishing their scope) without protest from the other contracting parties.120

References 58. The jurisprudence of the European Court of Human Rights can be interpreted in the same way, in the sense that, while the Strasbourg Court does not allow late reservations,121 it proceeds differently if the law adopted after ratification ‘goes no farther than a law in force on the date of the said reservation’.122 Moreover, following the Belilos judgment, which held a Swiss ‘declaration’ attached to its accession to the European Convention on Human Rights,123 the Swiss Federal Tribunal, while annulling on other bases the new Swiss declaration, in a judgment of 17 December 1992, in the case of Elisabeth B v Council of State of Thurgau Canton, considered that: If the declaration of 1988 represented merely a clarification and a limitation of the reservation formulated in 1974, then nothing would be against this practice. Even though neither article 64 ECHR nor the Vienna Convention on the Law of Conventions [sic] of 1969 (RS 0.111) expressly regulate this question, it can be considered that a new formulation of an existing reservation must, as a general rule, be always possible ? insofar as this modification has the purpose of restricting the existing reservation. This practice does not limit the inter-state undertaking of the State in question, but it increases it in accordance with the Convention.124

References 59. This is an excellent presentation of both the applicable law and its basic underlying premise: there is no valid reason for preventing a State from limiting the scope of a previous reservation by withdrawing it, if only in part; the treaty's integrity is thereby (p. 585) better ensured and it is not impossible that, as a consequence, some of the other parties may withdraw objections that they had made to the initial reservation.125 Furthermore, as has been pointed out, failing this possibility the equality between parties would be disrupted (at least in cases where a treaty-monitoring body exists): ‘States which have long been parties to the Convention might consider themselves to be subject to unequal treatment by comparison with States which ratified the Convention [more recently] and, a fortiori, with future Contracting Parties’126 that would have the advantage of knowing the treaty body's position regarding the validity of reservations comparable to the one that they might be planning to formulate and of being able to modify it accordingly. 127

60. It was such considerations127 that led the Commission to state in its preliminary conclusions of 1997, concerning reservations to law-making multilateral treaties including human rights treaties, that in taking action on the inadmissibility of a reservation the State ‘may, for example, modify its reservation so as to eliminate the inadmissibility’.128 Obviously, this is possible only if it has the option of modifying the reservation by partially withdrawing it.129 61. Moreover, in practice, partial withdrawals, while not very frequent, are far from nonexistent. In 1988, Horn noted that, of 1,522 reservations or interpretative declarations made in respect of treaties of which the Secretary-General of the United Nations is the depositary, 47 have been withdrawn completely or partly…130 In the majority of cases, i.e., 30 statements, the withdrawals have been partial. Of these, six have experienced successive withdrawals leading in only two cases to a complete withdrawal.131 This trend, while not precipitous, has continued in recent years.132 62. The Secretary-General's practice is not absolutely consistent, however, and, in some cases, even those involving modifications which apparently reduce the scope of the reservations in question, he proceeds as in the case of late formulation of reservations133 and confines himself, ‘in keeping with the…practice followed in similar cases’, to receiving ‘the declarations in question for deposit in the absence of any objection on the part of (p. 586) any of the contracting States, either to the deposit itself or to the procedure envisage’.134 This practice is defended in the following words in the Summary of Practice of the SecretaryGeneral as Depositary of Multilateral Treaties: when States have wished to substitute new reservations for initial reservations made at the time of deposit…this has amounted to a withdrawal of the initial reservations— which raised no difficulty—and the making of (new) reservations.135 This position was confirmed by a memorandum dated 4 April 2000 from the United Nations Legal Counsel, specifying ‘the practice followed by the Secretary-General as depositary in respect of communications from States which seek to modify their existing reservations to multilateral treaties deposited with the Secretary-General or which may be understood to seek to do so’ without making a distinction between partial withdrawals and the enlargement of a reservation.136 63. This position is more qualified than initially appears. The memorandum of 4 April 2000 must be read together with the Legal Counsel's reply, of the same date, to a note verbale from Portugal reporting, on behalf of the European Union, problems associated with the 90-day time period, traditional for reactions to reservations formulated late.137 In this note, a distinction is drawn between ‘a modification of an existing reservation’ and ‘a partial withdrawal thereof’. In the case of the second type of communication: the Legal Counsel shares the concerns expressed by the Permanent Representative that it is highly desirable that, as far as possible, communications which are no more than partial withdrawals of reservations should not be subjected to the procedure that is appropriate for modifications of reservations. The question is thus merely one of wording: the Secretary-General refers to withdrawals which enlarge the scope of reservations as ‘modifications’ and to those which reduce that scope as ‘partial withdrawals’; the latter are not (or should not be, although this is not always translated into practice) subject to the cumbersome procedure required for the late formulation of reservations.138 To require a one-year time period before the limitation of a reservation can produce effects, subjecting it to the risk of a ‘veto’ by a single other party, would obviously be counterproductive and in violation of the principle that, to the extent possible, the treaty's integrity should be preserved. 64. Since it does not concern a new reservation but the restriction of an existing reservation, reformulated in such a way as to more completely bring closer together the undertakings of the reserving State with the undertakings established in the treaty, it is at (p. 587) least doubtful that the other contracting parties may object to the new formulation:139 if the other contracting parties had agreed to the reservation as originally formulated, it is difficult to see that they could object to the new one, which would, hypothetically, have reduced effects. Just as a State cannot object to a pure and simple withdrawal of a reservation, it can no more object to a partial withdrawal. 65. The partial withdrawal of reservations presents another special problem. The total withdrawal of a reservation deprives the objections originally raised to it of any effect, even in the case where the objection had as its main effect to prevent the entry into force of the treaty between the objecting and reserving States.140 There is no reason why this should be so also in the case of partial withdrawal. Surely objecting States would be encouraged to re-examine their objections and withdraw them if the reason or reasons that gave rise to them disappear by virtue of the modification of the reservation. These States can certainly withdraw their objections.141 But these States cannot be obliged to do so, and they can perfectly maintain their objections if they consider it expedient.142 66. The only real question in this respect is whether the other contracting States must formally confirm their objections or whether the objections must be considered to apply to the reservation in its new formulation. Existing practice undoubtedly supports the presumption of continuity of objections: that is, there seem to be no cases in which the withdrawal of a reservation has led to the withdrawal of objections and the UN Secretary-General, in his role as depositary, seems to consider it obvious that objections continue to apply.143 This appears to be logical: a partial withdrawal does not remove the initial reservation and it does not

constitute a new reservation; a priori, the objections made to the original reservation legitimately continue to apply for as long as their authors have not withdrawn them.

References

Enlargement of the scope of a reservation 67. If, after having expressed its consent accompanied by a reservation, a State or an international organization wishes to enlarge the reservation in question, that is, modify to its advantage the legal effect of the provisions of the treaty covered by the reservation, the restrictions imposed on the formulation of reservations in general must be applied. For the same reasons: • it is essential not to encourage the late formulation of reservations to treaties; • similarly, legitimate reasons can lead a State or an international organization to wish to modify a previous reservation and, in certain cases, it will be possible for the author of the reservation to denounce the treaty and accede to it again with an ‘enlarged reservation’; (p. 588) • it is always possible for the parties to a treaty to modify the treaty at any time if there is unanimity; 144 it is thus possible for them unanimously to authorize a party to the treaty to modify, at any time, the legal effect of certain provisions of the treaty or the legal effect that the treaty as a whole has on certain matters, as far as that party is concerned. 145 68. Practice is rare on this point; but the few scholarly writings on this specific question unanimously agree.146 Polakiewicz, Deputy Head of the Department of the Legal Adviser and Treaty Office of the Council of Europe, considers that, in the framework of this Organization: There have been instances where states have approached the Secretariat requesting information as to whether and how existing reservations could be modified. In its replies the Secretariat has always stressed that modifications which would result in an extension of the scope of existing reservations are not acceptable. Here the same reasoning applies as in the case of belated reservations…Allowing such modifications would create a dangerous precedent which would jeopardise legal certainty and impair the uniform implementation of European treaties.147

References 69. However, at a universal level, this conclusion is undoubtedly too strict. In any event, whatever may be the answer to this question, it has not impeded the ‘alignment’ of the practice concerning the enlargement of reservations to that of late formulation of reservations,148 something that appears to be very logical.

References (p. 589) 70. The depositaries treat ‘enlarging modifications’ in the same way as they treat late reservations: seized of a request of one of the parties to enlarge its previous reservation, depositaries consult the rest of the parties to the treaty and reject the new formulation of the reservation if any among the other contracting parties object to it within the established time limit.149

References 71. If there is no reason to examine the possibility of the partial withdrawal of an interpretative declaration which, by definition, ‘purports to specify or clarify the meaning or scope attributed by the declarant to a treaty or to certain of its provisions’,150 there is, to the contrary, no doubt that such a declaration can be modified.151

References 72. In the case of ‘simple’ interpretative declarations, understood as those declarations which constitute a simple clarification of the sense of the provisions of a treaty but which do not condition the participation of their author to that treaty, modifications to their text can be formulated at any time, save for conventional provisions to the contrary.152 Thus, in the absence of a conventional provision specifying that the interpretation must be formulated at a specific time, nothing opposes the possibility for the author to modify its declarations at any time, independently of the object of the modification. 73. The same is not true for conditional interpretative declarations. In principle, these declarations may only be formulated (or confirmed) at the time of the expression of consent to be bound by the State in question153 and late formulations are excluded ‘except if none of the other Contracting Parties objects to the late formulation of the conditional interpretative declaration’.154 All modifications to conditional interpretative declarations, at least if they ‘toughen’ the position of the declaring State (something which is difficult to determine in certain cases), thus resemble the case of late formulation of declarations, which must not run against the opposition of any of the other contracting parties to the treaty, as in the case of the enlargement of a reservation.

Effects of withdrawal of an objection 74. Introduced in extremis in the text of the Convention,155 paragraph 3(b) of Article 22 is drafted, mutatis mutandis, on the basis of paragraph (a) of the same Article concerning reservations: like paragraph (a), on the one hand, it limits the date upon which the withdrawal of an objection becomes operative to the date upon which the interested State—in this case, the reserving State—is notified of the withdrawal and, on the other hand, it is silent on the matter of the effects of the withdrawal. (p. 590) 75. Bokor-Szegó, on behalf of the Hungarian delegation to the Vienna Conference, who was the author of the amendment at the origin of this provision,156 explained that: if a provision on the withdrawal of reservations was included, it was essential that there should also be a reference to the possibility of withdrawing objections to reservations, particularly since that possibility already existed in practice…[The] new sub-paragraph (b), [made] it clear that the withdrawal of an objection to a reservation became operative only when notice of it had been received by the State which had formulated the reservation concerned; her delegation believed that, whereas the withdrawal of a reservation affected the existing relations between the reserving State and the other parties, withdrawal of an objection directly concerned only the objecting State and reserving State. If the amendment were adopted, the title of article 20 would have to be changed.157 76. It ensues from the rule contained in this sub-paragraph that, in view of the impossibility of knowing with certainty the date upon which the reserving State receives notification of the withdrawal of objections to it: The withdrawing state, in this case the objecting party, may be at pains to determine when its withdrawal has become effective and when it is still bound by a norm system modified by the reservation.158 But this problem also arises in relation to the withdrawal of reservations and it may be considered that the advantages of the solution envisaged take priority over the inconvenience they cause159—at all stages, a small period of uncertainty is inevitable for one or other of the protagonists; it is not illogical that this uncertainty should fall on the State which takes the initiative to modify a situation it has created. 77. As maintained by Bowett ‘the withdrawal of an objection to a reservation…becomes equivalent to acceptance of the reservation and correspondingly the reservation has full effect’.160 It can thus be conceived that the withdrawal of an objection concerns a ‘specific form of acceptance of the reservation’.161 But this deferred acceptance has no less complex and variable effects depending on the characteristics of the objection withdrawn:162 • if the objection is not accompanied by the express declaration envisaged in Article 20, paragraph 4(b) of the Convention, the reservation produces its ‘normal’ effects, as provided for in paragraph 3 of Article 21; • if the objection was ‘maximum’, the treaty enters into force between the two parties and the reservation produces its full effects, in accordance with Article 21; • if the objection constitutes a cause preventing the entry into force of the treaty among all the contracting parties, in accordance with Article 20(2), or only in respect of the reserving State, in accordance with Article 20(4), 163 then the treaty enters into force between them (and the reservation produces all its effects); and finally (p. 591) • it can be maintained that, if the objection was founded on one of the causes of invalidity of the reservation listed in Article 19, the situation remains unchanged 164 —at least if the cause in question is proved to exist. 78. It cannot be excluded that the withdrawal of an objection could only be partial.165 It could be so in two ways: • First, a State could transform a ‘maximum’ objection into a ‘normal’ objection. In this case, the treaty enters into force between the two States, but the objection produces the effects established in Article 23(3). 166 • Second, nothing seems to oppose a State from ‘limiting’ the content of its objection (by accepting certain aspects of a reservation, capable of being so decomposed) while maintaining it. In this case, the relationship between the two States is regulated by the newly formulated objection. 79. In the absence of any significant practice167 and, in any case, of any disagreements, it is difficult to be too categorical in relation to the effects of the withdrawal of an objection, a matter not regulated by Article 22(3)(a). These effects, nonetheless, result logically from the global system of Articles 19 to 21 of the Convention, as has been noted: The lack of provisions regulating…the effects of the withdrawal of reservations or objections constitute a loophole in the Convention, although, on the other hand, one could argue that relevant rules are implicitly contained in the provision[s] of the Convention.168

References 80. When it adopted guideline 2.7.4 of its Guide to Practice (Effect on reservation of withdrawal of an objection), the ILC commented that:

owing to the complexity of the effects of the withdrawal of an objection, it would be better to regard the withdrawal of an objection to a reservation as being equivalent to an acceptance and to consider that a State that has withdrawn its objection must be considered to have accepted the reservation, thus implicitly referring ‘to acceptances and their effects’.169 *

ALAIN PELLET

Footnotes: 1 The present commentary is largely based on the Seventh, Eighth, and Eleventh Reports of the author as Special Rapporteur of the ILC on reservations to treaties, the references of which are included in the bibliography. These developments were largely endorsed by the Commission in the commentaries to guidelines 2.5.1 and 2.5.7–2.5.11 as adopted in 2003 (see Report of the ILC to the General Assembly, A/58/10, pp 190–201 and 226–59) on the withdrawal and modification of objections to reservations and to guidelines 2.71–2.7.9 as adopted in 2007 (see Report of the ILC to the General Assembly, A/63/10, pp 225–43). 2 See, in this sense, P.-H. Imbert, Les réserves aux traités multilatéraux (Paris: Pedone, 1979), pp 291–3; F. Horn, Reservations and Interpretative Declarations to Multilateral Treaties (The Hague: TMC Asser Instituut, 1988), p 226. 3 Cf L. Migliorino, ‘La revoca di riserve e di obiezioni a riserve’, RDI, 1994, p 315. 4 See infra fns 61 and 128. 5 See, notably, L. Migliorino, supra n 3; Ph. Bretton, ‘L'URSS et la compétence de la Cour internationale de Justice en matière de protection des droits de l'homme’, AFDI, 1989, pp 261– 75. 6 See the commentary on Art. 23. 7 See the commentary on Art. 19, at paras 138–44. 8 See infra paras 52–73 and 78. 9 On this doctrinal dispute, see P.-H. Imbert, supra n 2, p 288; F. Horn, supra n 2, pp 223–4, and the references cited. 10 See the commentary on Art. 19 in this work. 11 Second Report on the Law of Treaties, A/CN.4/87, pp 29–31, para. 7 in YILC, 1954, vol. II, pp 131–2. 12 YILC, 1956, vol. II, p 116. In the commentary to this provision, Fitzmaurice considered that it required no further explanations (ibid, p 127, para. 101). 13 Commentary on draft Art. 17, YILC, 1962, vol. II, p 66, para. 12. 14 Ibid, p 61. For the wording and fate of the second sentence of this provision, see the commentary on Art. 23 in this work. 15 YILC, 1962, vol. I, 664th meeting, 19 June 1962, p 234, para. 67. 16 Ibid, 667th meeting, 25 June 1962, p 253, paras 73–5. 17 Ibid, 664th meeting, 19 June 1962, p 234, paras 68–71. 18 YILC, 1962, vol. II, p 181; Art. 21 concerned the ‘application of reservations’. 19 Ibid, pp 181–2, commentary on Art. 22, para. 1. 20 Waldock, Fourth Report on the Law of Treaties, YILC, 1965, vol. II, pp 55–6. Israel considered that the notification should be made through the depository, whereas the United States considered that the principal merit of the provision ‘is the clarification afforded by the provision that “Such withdrawal takes effect when notice of it has been received by the other States concerned”’. The comments by the United Kingdom concerned the date on which the withdrawal became effective. See infra para. 32. For the texts of the observations of these three States, see YILC, 1966, vol. II, pp 351 (United States), 295 (Israel, para. 14—see the commentary on Art. 23, n 112 in this work, and 344 (United Kingdom). 21 Waldock, Fourth Report on the Law of Treaties, YILC, 1965, vol. II, p 56; and YILC, 1965, vol. I, 800th meeting, 11 June 1965, p 174, para. 43. 22 On the latter point, see infra para. 32. 23 See comments by Verdross and (less clearly) Amado, 800th meeting, 11 June 1965, p 175, para. 49, and p 176, para. 60. 24 Ibid, p 175, para. 50. 25 See supra para. 9; for the first text adopted by the Drafting Committee in 1965, see YILC, 1965, vol. I, 814th meeting, 29 June 1965, p 272, para. 22. 26 See YILC, 1965, vol. I, 816th meeting, 29 June 1965, p 284, paras 56–60; and YILC, 1966, vol. I, Part Two, p 327, para. 106. 27 YILC, 1966, vol. II, p 209. 28 See supra para. 10. 29 YILC, 1966, vol. II, p 209, para. 1. 30 See the list and the text of these amendments and sub-amendments in Vienna Convention on the Law of Treaties, Official Records, 1st and 2nd sessions, Documents of the Plenary Session, pp 141–2, paras 205–11. In its written commentaries, Belgium had partly endorsed the contractual approach (Analytical compilation of comments and observations made in 1966

and 1967 with respect to the final draft Articles on the law of treaties: working paper prepared by the Secretariat—vol. I, A/CONF.39/5 (vol. I), mimeographed). It does not appear that Belgium has taken this suggestion any further. 31 For the text of the Hungarian amendment (A/CONF.39/L.18), see Vienna Conference on the Law of Treaties, Official Records, p 267. For the discussions concerning the amendment, see Vienna Conference on the Law of Treaties, 2nd session, 11th plenary meeting, 30 April 1969, pp 36–8, paras 14–41. 32 See the commentary on Art. 23, at paras 6 and 98. 33 YILC, 1975, vol. II, p 38. 34 See Report of the ILC to the General Assembly, YILC, 1977, vol. II, Part Two, pp 114–15. 35 See the final Report of the ILC to the General Assembly, YILC, 1982, vol. II, Part Two, p 37. 36 See Vienna Conference on the Law of Treaties of 1986, 5th plenary session, 18 March 1986, p 14, para. 62. 37 See supra para. 6. 38 Cf Art. 2(1)(d) of the Vienna Conventions of 1969 and 1986. 39 See supra para. 12. 40 See infra notably para. 38. 41 Cf L. Migliorino, supra n 5, p 319. 42 For recent examples, see the commentary on Art. 23, n 208 in this work. 43 See the examples given by P.-H. Imbert, supra n 2, p 287, fn 19; F. Horn, supra n 2, p 437, fn 1. See also the examples given by the ILC in the commentary to guideline 2.5.1 of the Guide to Practice (‘Withdrawal of reservations’), in Report of the ILC to the General Assembly, 2003, A/58/10, p 198, fn 333. 44 See eg Art. 167(4) of the Munich Convention on European Patents, 5 October 1973, and the other examples cited by P.-H. Imbert, supra n 2, p 287, fn 20; and by F. Horn, supra n 2, p 437, fn 2. 45 See infra para. 36. See also the commentary to guideline 2.5.1, in Report of the ILC to the General Assembly, 2003, A/58/10, p 198, para. 12. 46 In this sense, see R. Baratta, Gli effeti delle riserve ai trattati (Milan: Giuffrè, 1999), p 326; F. Horn, supra n 2, p 223; R. Szafarz, ‘Reservations to Multilateral Treaties’, Polish Yearbook of Int'l L, 1970, p 313. 47 See the commentary on Art. 20 in this work. 48 See the commentary on Art. 21 in this work. 49 A/CONF.39/L.18, supra n 31. This amendment was at the origin of the inclusion of a second para. in Art. 23 (see supra para. 15). 50 Sir Francis Vallat, Vienna Conference on the Law of Treaties, 2nd session, 11th plenary meeting, 30 April 1969, p 38, para. 31. 51 See R. Szafarz, supra n 46, p 313. 52 Commentary to guideline 2.5.1, Report of the ILC to the General Assembly, 2003, A/58/10, p 199, para. 14. The absence of discussion concerning the reproduction of these rules in the 1986 Convention confirms this analysis. The ICJ confirmed the customary character of these rules in its preliminary objections judgment in the case concerning Armed Activities in the Territory of the Congo (New application: 2002) (Democratic Republic of Congo v Rwanda), 3 February 2006, ICJ Reports 2006, pp 25–6, para. 41. 53 Ibid. See the commentary on Art. 19 in this work. 54 See the Summary of Practice of the Secretary-General as Depository of Multilateral Treaties, prepared by the Treaty Section of the Office of Legal Affairs, UN, 1994, ST/LEG7/Rev.1, p 63, para. 216. 55 The same formula or a similar one appears in paras 1, 3, and 5 of Art. 20. 56 See supra paras 9, 13. 57 Waldock, Fourth Report on the Law of Treaties, YILC, 1965, vol. II, p 56; and YILC, 1965, vol. I, 800th meeting, 11 June 1965, p 174, para. 45. 58 See infra para. 32. 59 See infra paras 37, 39. 60 See the commentary on Art. 19 and supra para. 12. 61 One of the privileged moments for the withdrawal of reservations is certainly that of a succession of States since, on this date, the newly independent State can express its intention not to maintain the reservations of its predecessor State (cf Art. 20(1) of the Vienna Convention of 1978 on Succession of States in respect of Treaties; see also guidelines 5.1.1– 5.1.3 and 5.2.1 in the ILC Guide to Practice). 62 This possibility is expressly provided for in the final clauses of the Convention Concerning Customs Facilities for Touring, of its Additional Protocol, and the Customs Convention on the Temporary Importation of Private Road Vehicles, all of 4 June 1954 (para. 5). See YILC, 1965, vol. II, p 112. 63 There are, instead, a large number of examples in which a State, having formulated

reservations at the time of signature, does not confirm them following arguments (répresentations) addressed to it by other signatory States or by the depository (cf the examples in F. Horn, supra n 2, pp 345–6). But this is not technically a withdrawal. See the commentary on Art. 23, n 202 in this work. In its commentary to guideline 2.5.1, the ILC quotes a few examples of withdrawal of reservations occurring soon after their formulation, see Report of the ILC to the General Assembly, 2003, A/58/10, p 175, para. 338. 64 See the commentary on Art. 23, n 183 in this work. 65 Guideline 2.7.1 of the ILC Guide to Practice repeats the text of Art. 22, para. 2. 66 Cf supra para. 21. 67 Thus, on 1 March 1990, the Italian government communicated to the UN SecretaryGeneral that it ‘withdrew the declaration pursuant to which it considered the provisions of articles 17 and 18 [of the Geneva Convention of 28 July 1951 on Refugees] as recommendations’ (Multilateral Treaties Deposited with the Secretary-General (MTDSG) (available at: http://treaties.un.org/pages/ParticipationStatus.aspx), ch. V.2, fn 25). Equally, ‘on 20 April 2001 the Finnish Government informed the Secretary General [of the United Nations] that it had decided to withdraw the declaration concerning article 7, paragraph 2, formulated at the time of ratification’ of the Vienna Convention on the Law of Treaties of 1969 (and ratified by this State in 1977) (ibid, vol. III, ch. XXIII.1, p 538, fn 15). 68 Cf guideline 2.4.3 of the ILC Guide to Practice on Reservations to Treaties. See the Report of the ILC to the General Assembly, 2001, A/56/10, pp 192–3. See also the commentary on Art. 23 in this work. 69 See guideline 1.2.1 of the ILC Guide to Practice, YILC, 1999, vol. II, Part Two, p 240. 70 Only to the extent that para. 3(a) mentions the ‘notification’ of a withdrawal. 71 Cf Vienna Conference on the Law of Treaties, Official Records, Report of the Committee of the Whole, p 142, para. 211 (text of the Drafting Committee). 72 From the plural (‘…when notice of it has been received by the other contracting States’— see YILC, 1966, vol. II, p 209) the provision changed into the singular form (see Official Records, Report of the Committee of the Whole, p 142, para. 211 (text of the Drafting Committee), which has the advantage of marking the date on which the withdrawal becomes operative in relation to each contracting State (cf the explanations of Yasseen, President of the Drafting Committee of the Conference, in Official Records, 2nd session, 11th plenary meeting, 30 April 1969, p 36, para. 11). On the final adoption of draft Art. 22 by the Commission, see YILC, 1965, vol. I, pp 284–5; YILC, 1966, vol. I, Part Two, p 340. The transposition of this provision to the 1986 Convention was not debated: see Paul Reuter, Fourth Report, YILC, 1975, vol. II, p 38; Fifth Report, YILC, 1976, vol. II, Part One, p 146; for the (non-)discussion by the Commission: YILC, 1977, vol. I, 1434th meeting, 6 June 1977, pp 100–1, paras 30–4; 1435th meeting, 7 June 1977, p 102, paras 1–2; 1451st meeting, 1 July 1977, pp 195–6, paras 12–16. See also the Report of the ILC to the General Assembly, YILC, 1977, vol. II, Part Two, pp 114–15; and for the second reading, see Paul Reuter, Tenth Report, YILC, 1981, vol. II, Part One, p 63, para. 84. For the (non-)discussion during the 1652nd meeting, 15 May 1981, and the 1692nd meeting, 16 July 1981, see YILC, 1981, vol. I, p 54, paras 27–8; pp 264–5, paras 38–9. For the final text, see YILC, 1981 vol. II, Part Two, p 140; YILC, 1982, vol. II, Part Two, p 37. 73 See supra para. 7 and infra para. 45. 74 See supra para. 8. 75 See supra para. 9. 76 Sir Humphrey Waldock, Fourth Report, YILC, 1965, vol. II, p 56. 77 YILC, 1965, vol. I, 800th meeting, 11 June 1965, p 175, para. 47. 78 Ibid, p 176, para. 59 (Ruda); p 177, para. 76 (Briggs). 79 Ibid, p 193, paras 68–9 (Tunkin). See also p 175, para. 54 (Tsuruoka); p 177, paras 78–80 (Waldock). 80 Explanation given by Waldock, ibid, 814th meeting, 29 June 1965, p 273, para. 24. 81 YILC, 1966, vol. II, p 209, commentary on Art. 20, para. 2. 82 A. Pellet, Seventh Report on Reservations to Treaties, A/CN.4/526/Add.2, para. 161. 83 YILC, 1965, vol. I, 814th meeting, 29 June 1965, p 273, para. 24. 84 Commentary to guideline 2.5.8 (‘Effective date of withdrawal of a reservation’) in ILC Report to the General Assembly, 2003, A/58/10, p 235, para. 8. 85 Model Clause A—Deferment of the effective date of the withdrawal of a reservation: A Contracting Party which has made a reservation to this treaty may withdraw it by means of a notification addressed to [the depositary]. This withdrawal shall take effect on the expiration of a period of X [months] [days] after the date of receipt of the notification by [the depositary]. (ibid, p 239) 86 See the examples in P.-H. Imbert, supra n 2, p 290, fn 36; F. Horn, supra n 2, p 438, fn 19; ILC, supra n 84, p 236, fn 461. 87 See the examples in ILC, ibid, pp 236–7, para. 10 and fns 462, 463. 88 Model Clauses B and C, ibid, pp 240–1. 89 See supra paras 31–8. 90 ‘[N]e résout pas vraiment la question du facteur temps’: P.-H. Imbert, supra n 2, p 290.

91 See supra n 71. 92 See, in this sense, comments by Briggs, YILC, 1965, vol. I, 800th meeting, 14 June 1965, p 177, para. 75; ibid, 814th meeting, 29 June 1965, p 273, para. 25. 93 See supra para. 36. 94 See the commentary on draft Art. 22 adopted in first reading in YILC, 1962, vol. II, p 201, para. 2; and on draft Art. 20 adopted in second reading, in YILC, 1966, vol. II, pp 181–2, para. 2. 95 See, the example in P.-H. Imbert, supra n 2, p 291, fn 38 (withdrawal of a reservation by Denmark to the 1951 and 1954 Conventions on Refugees and Stateless Persons; see MTDSG, supra n 67, respectively ch. V.2, fn 19, and ch. V.3, fn 10). 96 In this sense, see P.-H. Imbert, supra n 2, pp 290–1. 97 Report of the ILC to the General Assembly, 2003, A/58/10, p 242. 98 YILC, 1956, vol. II, p 116, Art. 40, para. 3. 99 YILC, 1962, vol. II, p 201. See supra para. 9. 100 It was abandoned in second reading following consideration by the Drafting Committee of the new draft Article proposed by Sir Humphrey Waldock, who only partly maintained this sentence (cf supra paras 11, 31), without any explanations (cf YILC, 1965, vol. I, 814th meeting, 29 June 1965, p 272, para. 22). 101 Ibid, 800th meeting, 14 June 1965, p 178, para. 86; in the same sense, Rosenne, ibid, para. 87. 102 Amendments by Austria and Finland, A/CONF.39/C.1/L.4 and Add.1, complemented by a sub-amendment proposed by the USSR, A/CONF.39/C.1/L.167, in Vienna Conference on the Law of Treaties, Official Records, p 141. 103 Vienna Conference on the Law of Treaties, 1st session, 70th meeting, 14 May 1968, declaration by Yasseen, President of the Drafting Committe, p 417, para. 37. 104 D. Bowett, ‘Reservations to Non-Restricted Multilateral Treaties’, BYBIL, 1976–77, p 87. See also R. Szafarz, supra n 46, p 313. 105 ‘Intervenendo in una situazione di questo tipo la revoca di la riserva produce l'effetto di estendere, nei rapporti tra lo Stato riservante e lo Stato obiettante, l'applicazione del trattato anche alle disposizioni coperte dalla riserva’ in L. Migliorino, supra n 3, p 325 (editor's translation). In the same sense, cf R. Szafarz, supra n 46, p 314. This author cites the example of the 1989 withdrawal of Hungary of its reservation to Art. 48(2) of the 1961 Single Convention on Narcotic Drugs, establishing ICJ jurisdiction, see MTDSG, supra n 67, ch. VI.15, fn 20. This reservation had not been objected to. By virtue of the withdrawal, the ICJ's jurisdiction to interpret and apply the convention is established with effect from the date on which the withdrawal became operative, see L. Migliorino, ibid, pp 325–6. 106 ‘Intervenendo in una situazione di questo tipo la revoca di la riserva produce l'effetto di estendere, nei rapporti tra lo Stato riservante e lo Stato obiettante, l'applicazione del trattato anche alle disposizioni coperte dalla riserva’ in L. Migliorino, supra n 3, pp 326–7 (editor's translation). This author quotes the example of the 1972 withdrawal by Portugal of its reservation to Art. 37(2) of the 1961 Vienna Convention on Diplomatic Relations, which had been objected to by numerous States which failed to oppose it at the time of the entry into force of the Convention between themselves and Portugal, see MTDSG, supra n 67, ch. III.3, fn 23. 107 See Art. 24 of the Convention, notably, para. 3. 108 R. Szafarz, supra n 46, pp 315–16. Similarly, J. M. Ruda, ‘Reservations to Treaties’, RCADI, 1975-III, vol. 146, p 202; D. Bowett, supra n 104, p 87; L. Migliorino, supra n 5, pp 328–9. The latter author quotes the example of the 1989 withdrawal by Hungary of its reservation to Art. 66 of the Vienna Convention of 1969, in MTDSG, supra n 67, ch. XXIII, fn 17. The example is not really accurate for the objecting States had not opposed the application of the Convention in their relations with Hungary; the ‘maximum’ effect of an objection to a reservation remains extremely rare, see supra commentary on Art. 21 in this work. 109 Report of the ILC to the General Assembly, 2003, A/58/10, p 199. 110 See however infra para. 54. 111 On the late formulation of reservations, see commentary on Art. 2(2)(d). 112 See eg A. Aust, Modern Treaty Law and Practice (Cambridge: Cambridge University Press, 2000), p 128; P.-H. Imbert, supra n 2, p 293; J. Polakiewicz, Treaty-Making in the Council of Europe (Strasbourg: Council of Europe Publishing, 1999), p 96. 113 See the examples given by the ILC in the commentary to guideline 2.5.10 (Partial withdrawal of a reservation), in Report of the ILC to the General Assembly, 2003, A/58/10, pp 244–5, paras 2–3. 114 Cf his First Report, draft Art. 17, YILC, 1962, vol. II, p 65, para. 9. 115 Ibid, pp 175 ff; on the changes made by the Drafting Committee to the draft prepared by the Special Rapporteur, see supra para. 9. 116 P.-H. Imbert, supra n 2, p 293. ContraJ.-F. Flauss, ‘Le contentieux de la validité des réserves à la CEDH devant le Tribunal fédéral suisse: Requiem pour la déclaration interprétative relative à l'article 6, paragraphe 1’, RUDH, 1993, p 301. 117 J. Polakiewicz, supra n 112, p 95. It can, however, be questioned whether these are real reservations.

118 Comme la législation interne est susceptible de modification de temps en temps, la Commission a considéré qu'une modification de la loi protégée par la réserve, même si elle entraîne une modification de la réserve, ne porte pas atteinte à l'exigence temporelle de l'article 64. Selon la Commission, malgré les termes exprès de l'article 64,…dans la mesure où une loi alors en vigueur sur son territoire n'est pas conforme…la réserve souscrite par l'Autriche le 3 septembre 1958 (1958–1959) (2 Annuaire 88–91) couvre…la loi du 5 juillet 1962, laquelle n'a pas eu pour résultat d'élargir a posteriori le domaine soustrait au contrôle de la Commission (editor's translation; W. A. Schabas, ‘Article 64’ in L. E. Pettiti, E. Decaux, and P.-H. Imbert (eds), La Convention européenne des droits de l'homme—commentaire article par article (Paris: Economica, 1995), p 932, original emphasis; footnotes omitted). See the Reports of the Commission in Association X v Austria, Application no. 473/59, Yearbook, vol. 2, p 405; X v Austria, Application no. 88180/78, DR 20, pp 23–5. 119 Cf the partially dissenting Opinion of Judge Valticos in Chorherr v Austria: ‘If the law is modified, the divergence to which the reservation refers could probably, if we are not strict, be maintained in the new text, but it could not, of course, be strengthened’ (judgment of 25 August 1993, Series A, no. 266-B, p 40). 120 Cf the successive partial withdrawals by Finland of its reservation to Art. 5 in 1996, 1998, 1999, and 2001 (available at: http://conventions.coe.int/treaty/en/cadreprincipal.htm). 121 Cf the judgment in Belilos, 29 April 1988, Series A, no. 132. 122 Judgment of 25 February 1982, Campbell and Cosans, Series A, no. 48, p 17, para. 37. 123 Judgment of 29 April 1988, Series A, no. 132, para. 60. 124 Si la déclaration de 1988 ne représente qu'une précision et une limitation de la réserve apportée en 1974, rien ne s'oppose à ce procédé. Même si ni l'article 64 CEDH ni la Convention de Vienne sur le droit des conventions [sic] de 1969 (RS 0.111) ne règlent expressément cette question, il y a lieu de considérer qu'une nouvelle formulation d'une réserve existante doit en règle générale toujours être possible lorsqu'elle a pour but de restreindre une réserve existante. Ce procédé ne limite pas l'engagement inter-étatique de l'Etat concerné mais l'augmente en conformité de la Convention (editor's translation) in JT, vol. I: Droit fédéral, 1995, p 535. Curiously, J.-F. Flauss, who does not cite this passage, affirms that ‘at first sight, it is difficult, in the current state of the law of the Convention and of the law of treaties, to recognize to “guilty” States a right of adaptation, even if circumscribed to the sole cases of partial invalidity’ (‘de prime abord, il est difficile, en l’état du droit de la Convention et du droit international des traités, de reconnaître aux Etats “condamnés” un droit d'adaptation, à supposer même qu'il soit circonscrit aux seuls cas d'invalidité partielle') (editor's translation) in supra n 115, p 298. 125 In this sense F. Horn, supra n 2, p 223. 126 J.-F. Flauss, supra n 116, p 299. 127 See YILC, 1997, vol. II, Part Two, pp 49, 55, paras 86, 141–4; A. Pellet, Second Report on Reservations to Treaties, A/CN.4/477/Add.1, YILC, 1996, vol. II, Part One, pp 80–1, paras 241– 51. 128 YILC, 1997, vol. II, Part Two, p 57, para. 10. 129 During its 62nd session in 2010, the ILC inflected its approach and considered that there was a rebuttable presumption that, when a State had made an impermissible reservation, it was bound by the treaty as a whole without the benefit of its reservation unless a contrary intent can be established. See guideline 4.5.2 (Statute of the author of an impermissible reservation vis-à-vis the treaty). 130 Of these 47 withdrawals, 11 occurred during a succession of States. There is no question that a successor State may withdraw reservations made by its predecessor, in whole or in part (cf Art. 20 of the 1978 Vienna Convention on Succession of States in respect of Treaties and guidelines 5.1.1 and 5.1.2 of the ILC Guide to Practice). 131 P.-H. Imbert, supra n 2, p 226. These statistics must, however, be read with caution: thus, eg, the author cites, in reality, only one example of successive partial withdrawals leading to total withdrawal of the reservation (see fn 26, p 438): that of Denmark in relation to the Convention on Refugees, but in reality (1) with only one exception it concerned total withdrawals of different reservations, and (2) one of the Danish original reservations, subsists in its reformulated version, cf MTDSG, supra n 67, ch. V.2, fn 19 and the corresponding text. 132 See the examples given by the ILC in the commentary on guideline 2.5.10 to the Guide to Practice on Reservations to Treaties, in Report of the ILC to the General Assembly, 2003, A/58/10, pp 252–3, para. 13. 133 See A. Pellet, Fifth Report on Reservations to Treaties, A/CN.4/508/Add.3 and Add.4, paras 279–325. 134 Cf eg the procedure followed in the case of Azerbaijan's modification of 28 September 2000 of its original reservation—modification which had an undeniably restrictive character (in response to the comments of States which had objected to its initial reservation)—the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty (MTDSG, supra n 67, ch. IV.12, fn 9). 135 Supra n 54, p 62, para. 206. 136 Memorandum from the United Nations Legal Counsel addressed to the Permanent

Representatives of States Members of the United Nations (LA41TR/221 (23–1)). For further information on this time limit, see A. Pellet, Fifth Report on Reservations to Treaties, A/CN.4/508/Add.4, paras 320–4. 137 See the commentary on Art. 2(1)(d). 138 See, ibid. Cf guidelines 2.3.1–2.3.3 of the Guide to Practice on Reservations to Treaties and their commentaries, in Report of the ILC to the General Assembly, 2001, A/56/10, pp 185– 91. 139 Whereas they certainly can remove their initial objections which, as the reservations themselves, can be withdrawn at all times; see supra para. 27. 140 See supra paras 48–9. 141 See supra para. 27. 142 Even though they cannot take advantage of the partial withdrawal of a reservation to formulate new objections, cf supra para. 64. 143 eg the objections of numerous States to the reservation made by Libya to the 1979 Convention on the Elimination of All Forms of Discrimination against Women were not modified following Libya's reformulation of the reservation and continue to appear in MTDSG, supra n 67, ch. IV.8, passim (Libya). 144 Cf Art. 39 of the Convention. 145 This argument was vigorously contested by a minority of ILC members during the 55th session of the Commission; it was, nevertheless, approved by a large majority. See Report of the ILC to the General Assembly, 2003, A/58/10, pp 161–2, paras 353–5; p 163, paras 360–1. 146 See eg A. Aust, supra n 112, p 130. See also J. Polakiewiscz, supra n 112, p 96; and, a contrario, P.-H. Imbert, supra n 2, p 293. 147 Ibid. This position is similar to that of the European Commission on Human Rights in the case Chrysostomos v Turkey (decision of 4 March 1991), Application nos 15299/89, 15300/89, and 15318/89, RUDH, 1991, p 193. The same author queries (ibid) whether it is possible for a State to denounce a treaty to which it has appended reservations to subsequently ratify it with larger reservations. He considers that proceeding in this way may constitute an abuse of right, on the basis of arguments peculiar to the conventions of the Council of Europe. The decision of the Swiss Federal Tribunal of 17 December 1992 in the case of Elisabeth B v Council of State of Thurgau Canton, supra n 124, pp 523–37, may be interpreted in this sense. See A. Pellet, Seventh Report on Reservations to Treaties, A/CN.4/526/Add.3, paras 199–200. In this sense, see J.-F. Flauss, supra n 116, p 303. In this respect, it may be noted that on 26 May 1998, Trinidad and Tobago denounced the Optional Protocol to the 1966 International Covenant on Civil and Political Rights and subsequently ratified it again, on the same day, and formulated a new reservation, see MTDSG, supra n 67, ch. IV.5, fn 1. Following numerous objections and the decision of the Committee of Human Rights of 31 December 1999, Comm. No. 845/1999, Trinidad and Tobago once again denounced the treaty. See MTDSG, ibid. This case, however, must be distinguished from the cases under consideration, for it did not concern the modification of an existing reservation, but the formulation of a new reservation. 148 G. Gaja quotes the example of the ‘correction’ made by France on 11 August 1982 to the reservation in its instrument of ratification of the 1978 Protocol concerning the 1973 International Convention for the Prevention of Pollution from Ships, deposited with the Secretary-General of the International Maritime Organization on 25 September 1981, in ‘Unruly Treaty Reservations’, in International Law at the Time of Its Codification: Essays in Honour of Roberto Ago (Milan: Giuffrè, 1987), pp 311–12. This case concerns a very special case, since on the date of the ‘correction’ the MARPOL Protocol had not yet entered into force with respect to France; it would not appear that in this case the depositary subordinated the acceptance of the new text to the unanimous agreement of the other States parties—a number of which objected to France's modified reservation (cf Status of Multilateral Conventions and Instruments in Respect of which the International Maritime Organization or Its SecretaryGeneral Performs Depositary or Other Functions as at 31 December 1999, J/7339, p 77). 149 See eg the procedure followed after the modification formulated in 1995 by Finland to its original reservation (of 1985) to the 1973 Annex to the Protocol on Road Markings, Additional to the European Agreement Supplementing the 1968 Convention on Road Signs and Signals, in MTDSG, supra n 67, ch. XI.B.25, fn 4. See also the reaction of Germany to the modification formulated in 1999 by the government of the Maldives to the reservations formulated at the time of their accession (in 1993) to the Convention on the Elimination of All Forms of Discrimination against Women, in ibid, ch. IV.8, fn 38. 150 Cf guideline 1.2 of the Guide to Practice on Reservations to Treaties of the ILC, YILC, 1999, vol. II, Part Two, p 97. 151 eg see the modification submitted by Mexico in 1987 to the declaration concerning Art. 16 on the New York Convention on the Taking of Hostages of 17 December 1979, made at the time of its accession in 1987, see MTDSG, supra n 67, ch. XVIII.5 (Mexico). 152 See supra para. 28. 153 Ibid. 154 Cf guideline 2.4.8 of the Guide to Practice on Reservations to Treaties of the ILC, in Report of the ILC to the General Assembly, YILC, 2001, vol. II, Part Two, pp 542–3. 155 See supra para. 15. 156 A/CONF.39/L.18, supra n 31. 157 Vienna Conference on the Law of Treaties, 2nd session, 11th plenary meeting, 30 April

1969, pp 36–7, para. 14. The Hungarian amendment was adopted with 92 votes in favour, 0 against, and 3 abstentions, ibid, p 38, para. 36. 158 F. Horn, supra n 2, p 225. 159 See supra para. 40. 160 Supra n 104, p 88; in the same sense L. Migliorino, supra n 3, p 329. 161 R. Szafarz, supra n 46, p 314. 162 In this sense, R. Szafarz, supra n 46, p 314; L Migliorino, supra n 3, p 329. 163 See the commentary on Art. 20. 164 See the commentary on Art. 19. 165 See guidelines 2.7.7 (Partial withdrawal of an objection) and 2.7.8 (Effect of a partial withdrawal of an objection) and their commentaries in Report of the ILC to the General Assembly, A/63/10, pp 237–41. 166 In this sense, R. Szafarz, supra n 46, p 314; L Migliorino, supra n 3, p 329. 167 F. Horn, in discussing certain cases (supra n 2, pp 226–8), considers that only the case of the withdrawal by Cuba in 1982 of objections made by the regime of Batista in 1953 to Arts IV and IX of the Genocide Convention (see MTDSG, supra n 67, ch. IV.1, fn 7) constitutes a clear example of the withdrawal of an objection; the effects of these acts seem to be more symbolic than real. 168 R. Szafarz, supra n 46, p 314. 169 Report of the ILC to the General Assembly, A/63/10, p 233, para. 4 of the commentary on guideline 2.7.4. On the effects of an acceptance, see the commentary on Art. 21 in this work. * Professor, Université Paris Ouest, Nanterre–La Défense; Member and former President of the ILC; Associate of the Institute de Droit International; Special Rapporteur on reservations to treaties.

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Volume I, Part II Conclusion and Entry into Force of Treaties, s.2 Reservations, Art.22 1986 Vienna Convention Alain Pellet From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Treaties, reservations and declarations

(p. 592) 1986 Vienna Convention Article 22 Withdrawal of reservations and of objections to reservations 1. Unless the treaty otherwise provides, a reservation may be withdrawn at any time and the consent of a State or of an international organization which has accepted the reservation is not required for its withdrawal. 2. Unless the treaty otherwise provides, an objection to a reservation may be withdrawn at any time. 3. Unless the treaty otherwise provides, or it is otherwise agreed: (a) the withdrawal of a reservation becomes operative in relation to a contracting State or a contracting organization only when notice of it has been received by that State or that organization; (b) the withdrawal of an objection to a reservation becomes operative only when notice of it has been received by the State or international organization which formulated the reservation.

Bibliography See the general bibliography on reservations of Article 19 and the bibliography of Article 22 of the Vienna Convention 1969 1. While the ILC was working on the draft on treaties concluded between States and international organizations, Article 22 barely gave rise to discussion at the Commission. 2. The only modifications made by Paul Reuter, Special Rapporteur of the ILC, with regard to the corresponding provisions of the Vienna Convention 1969 are of a purely editorial nature and thus minor. They simply extend Article 22 of the Vienna Convention 1969 to agreements concluded between States and international organizations or between international organizations.1 Any discussion or far-reaching change would moreover turn out to be illusive because of the near inexistence of practice on the subject. Reuter rightly stated that ‘the object of the present draft articles…are only of limited immediate practical interest’.2 3. This is no doubt the reason why the Commission did not really discuss the text of Article 22 that was proposed by its Special Rapporteur,3 which it adopted without (p. 593) changes,4 and which was maintained at second reading.5 The Conference of Vienna 1986 did not add any fundamental changes.6 4. One can, however, say that the simple formal adaptation of the corresponding provision of the 1969 Convention of Vienna reflects the conviction of the members of the Commission and later that of the representatives of States at the Conference of Vienna that Article 22 would henceforth be part of international custom.7 *

ALAIN PELLET

Footnotes: 1 YILC, 1975, vol. II, pp 37 and 38; see also the presentation of the draft by the Special Rapporteur at the 1434th meeting, 6 June 1977, YILC, 1977, vol. I, p 100. 2 YILC, 1975, vol. II, p 36. 3 See YILC, 1977, vol. I, 1434th meeting, 6 June 1977, pp 100 ff, paras 30–5, and 1435th meeting, 7 June 1977, p 104, paras 1 and 2; also 1451st meeting, 1 July 1977, pp 194–5, paras 12–16 and the report of the Commission of the same year, ibid, vol. II, Part Two, pp 114–15; and for the second reading see the 10th report by P. Reuter, YILC, 1981, vol. II, Part One, p 63, para. 84; the (non-)discussion at the 1652nd meeting, 15 May 1981, and 1692nd meeting, 16 July 1981, YILC, 1981, vol. I, p 54, paras 27 and 28 and p 264, para. 38, and the final text, ibid, vol. II, Part Two, p 140 and YILC, 1982, vol. II, Part Two, p 37. 4 See the report of the Commission, YILC, 1977, vol. II, Part Two, pp 114–15. 5 See the final report of the Commission of 1982, YILC, 1982, vol. II, Part Two, p 37. 6 See Official Records of the United Nations Conference on the Law of Treaties between States and International Organizations or between International Organizations, Vienna, 18 February–21 March 1986, Summary Records of the Committee of the Whole, vol. I, 5th meeting (18 March 1986), p 14, paras 62–3. 7 See the commentary on Art. 22 of the 1969 Convention, paras 21–4. * Professor, Université Paris Ouest, Nanterre–La Défense; Member and former President of the ILC; Associate of the Institute de Droit International; Special Rapporteur on reservations to treaties.

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Volume I, Part II Conclusion and Entry into Force of Treaties, s.2 Reservations, Art.23 1969 Vienna Convention Alain Pellet, William Schabas From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Treaties, reservations and declarations

(p. 594) 1969 Vienna Convention Article 23 Procedure regarding reservations 1. A reservation, an express acceptance of a reservation and an objection to a reservation must be formulated in writing and communicated to the contracting States and other States entitled to become parties to the treaty. 2. If formulated when signing the treaty subject to ratification, acceptance or approval, a reservation must be formally confirmed by the reserving State when expressing its consent to be bound by the treaty. In such a case the reservation shall be considered as having been made on the date of its confirmation. 3. An express acceptance of, or an objection to, a reservation made previously to confirmation of the reservation does not itself require confirmation. 4. The withdrawal of a reservation or of an objection to a reservation must be formulated in writing. A. General features 595 Legal status and drafting history of Article 23 595 Gaps in Article 23 and its place within the provisions on reservations as a whole 597 B. Procedure for formulating reservations, express acceptance, and objection 598 Form of reservations, express acceptance, and objection 598 Communication of reservations, express acceptance, and objection 601 Competent authority to formulate a reservation, acceptance, or objection 601 Recipients of reservations, express acceptance, and objection 605 The general rule 605 Reservations to constitutive acts of international organizations 608 Modalities of communication of reservations, express acceptance, and objection 609 Procedure for communication of reservations 609 Functions of the depositary 611 C. Confirmation of reservations, acceptance, and objection 614 A necessary formality (reservations) 614 A superfluous formality (acceptance and objection) 617 D. Form and procedure for withdrawal of reservations and objections 619 Form of withdrawal 619 Procedure for withdrawal of reservations and objections 623

Bibliography See the general bibliography on reservations under Article 19, also: Imbert, P.-H., ‘A l'occasion de l'entrée en vigueur de la Convention de Vienne sur le droit des traités—Réflexions sur la pratique suivie par le Secrétaire general des Nations Unies dans l'exercice de ses fonctions de dépositaire’, AFDI, 1980, p 524, the bibliography on withdrawal of reservations appearing under Article 22 (p. 595) Pellet, A., ‘Formulation, modification and withdrawal of reservations and interpretative declarations’, Fifth Report on reservations to treaties, A/CN.4/508/Add.3, paras 223–306; Add.4, paras 307–332; Sixth Report, A/CN.4/518/Add.1, paras 36–133; Add.2, paras 134–73; Seventh Report, A/CN.4/526/Add.2, paras 61–184; Add.3, paras 185–221; Eighth Report, A/CN.4/535, paras 33–68; Add.1, paras 69–106; Ninth Report, A/CN.4/544, paras 27–9; Eleventh Report, A/CN.4/574, paras 58–180; Twelfth Report, A/CN.4/584, paras 181–275 and A/CN.4/586, Note by the Special Rapporteur on guideline 2.1.9 (these reports are to be published in YILC, vol. II, Part Two) and the corresponding reports of the ILC to the General Assembly: YILC, 2000, vol. II, Part Two, pp 103–6, paras 638–61; YILC, 2001, vol. II, Part Two, pp 172–7, paras 112–55; A/57/10 (2002), pp 28–114, paras 53–103; A/58/10 (2003), pp 152–259, paras 326–68, and A/59/10 (2004), pp 268–74; A/61/10 (2006), pp 359–61; A/63/10 (2008), pp 174–89, 193– 213, 228–48; A/64/10 (2009), pp 225–38 and 252–3

A. General features Legal status and drafting history of Article 23

1. Relegated to the end of a series of five provisions devoted to reservations, Article 23 is entitled ‘Procedure regarding reservations’.1 Although somewhat eclectic in content, the unifying theme in Article 23 is its procedural dimension, and the fact that the formalities it sets out have characteristics in terms of substance: their violation results in invalidity or, at very least, the ineffectiveness of the reservation (or, in the case of para. 4, its withdrawal). This clearly results, a contrario, from the chapeau of Article 21, which affirms that a reservation is only ‘established with regard to another party in accordance with articles 19, 20 and 23’.2 2. Despite its obvious practical importance, Article 23 received little attention from the ILC and delegates to the Vienna Conferences on the Law of Treaties held in 1968–69 and 1986. 3. In general, the Commission attached limited attention to such procedural questions, despite some sporadic interest in the subject by the successive Special Rapporteurs. It was necessary to wait until it reconsidered the question, more specifically as the subject of ‘Reservations to treaties’,3 for the Commission to consider in detail the procedural problems relating to ‘Formulation, modification and withdrawal of reservations and interpretative declarations’.4 4. The first four Special Rapporteurs of the ILC on the law of treaties made suggestions concerning the form and the procedure for formulation of reservations in the draft (p. 596) Articles devoted to the subject,5 but their efforts were hardly noticed until the First Report of Sir Humphrey Waldock (in 1962), when specific and detailed provisions were contemplated.6 Some of them were retained, but in a simplified form, in the drafts of Articles 18 (Formulation of reservations) and 19 (Acceptance of and objection to reservations) adopted on first reading by the Commission in 1962,7 although the norms applicable to withdrawal of reservations were not mentioned. 5. Although governments had little comment,8 the provisions too closely linked the formal and substantive conditions for validity of reservations, and they were awkwardly drafted. This led Sir Humphrey Waldock to propose a new Article that deals more concisely with ‘Procedure regarding reservations’.9 This text, which is the direct ancestor of Article 23 of the Convention, still compromises rather detailed provisions on the procedure concerning notification of reservations, their acceptance, and objections. After noting that the earlier drafts ‘contained a number of articles in which reference was made to communications or notifications to be made directly to the States concerned, or if there was a depositary, to the latter’, on a suggestion from Mr Rosenne10 the Commission decided ‘it would allow a considerable simplification to be effected in the texts of the various articles if a general article were to be introduced covering notifications and communications’.11 As a result, it agreed to combine in a group of provisions, to be located at the end of the Convention, all of the provisions concerning notification and communication that were required by the Convention, including those concerning reservations.12 6. Article 18 of the Commission's draft13 was adopted with what were essentially amendments of form14 as Article 23 of the Vienna Convention,15 with the addition however of paragraph 4 requiring that withdrawal of a reservation or objection be made in writing.16 7. Although it is not a simple matter to take a general position on the ‘legal status’ of the rather varied norms to be found in Article 23, the absence of debate when the provision was revisited during drafting of the 1986 Convention17 supports the view that they are customary. In practice, States seem to respect them without difficulty, despite the fact that important gaps remain at the procedural level.

(p. 597) Gaps in Article 23 and its place within the provisions on reservations as a whole 8. Despite its title, Article 23 does not address all the issues that arise concerning ‘Procedure regarding reservations’. Some of these are dealt with earlier in the Convention or—implicitly— in Part VII, dealing with ‘depositaries, notifications, corrections and registration’. Others were not addressed by the drafters of the Convention. Nevertheless, far from confining itself to reservations, Article 23 also covers the procedure concerning their acceptance and objections to them. 9. None of these terms is defined,18 with the exception of the word ‘reservation’ itself, in Article 2(1)(d) of the Convention.19 It declares the moment when a reservation may be formulated (‘when signing, ratifying, [formally confirming,20] accepting, approving or acceding to a treaty’). This separation of the issues of form and procedure, on the one hand, and timing, on the other hand, is not very successful: the requirement of a written statement and formal communication to other concerned States (or international organizations) does not seem to be any more inherent in the definition of unilateral declarations, which are essentially reservations, than the moment when the communication must be made—something that the drafters of the Convention did not hesitate to repeat at the beginning of Article 19, concerning formal requirements for the ‘formulation of reservations’.21 10. Similarly, purely procedural norms can be found throughout the provisions concerning reservations: • tacit acceptance of reservations is governed by Article 20(5); • an important clarification concerning the contents of objections is provided by Article 21(3); 22 and • withdrawal of reservations and objections is dealt with in Article 22, with the exception of the requirement of a written formulation, imposed by Article 23(4). 11. Other procedural rules concerning reservations, acceptance, or objections, which were

originally included in the ILC draft adopted on first reading in 1962 in the section devoted to reservations, were, quite properly, incorporated in 1966 into the general norms applicable to all notifications and communications concerning treaties.23 12. Unfortunately, this dispersal of norms requires the practitioner to look for ‘procedure regarding reservations’ elsewhere than in Article 23, the title of which may be misleading for this reason; however, Part III of the ILC Guide to Practice on Reservations is entirely devoted to that procedure and covers the matter in great details. In addition, some rules are altogether absent from the Convention, namely: • those applicable to late reservations; 24 or • to modification of reservations; 25 (p. 598) • determining the authorities that are competent to formulate a reservation, acceptance, or objection; 26 • procedure for withdrawal of reservations and objections; 27 and • as with the Convention as a whole, the procedure applicable to interpretative declarations. 28 13. In order to deal with the difficulties that result from this dispersal of norms and these gaps, the ILC has attempted to bring together, in the second part of the Guide to Practice it has been working on since 1995,29 a guideline dealing with formulation and communication of reservations and interpretative declarations.30 14. Article 23 addresses three distinct problems, or series of problems, that will be considered in turn: • the procedure for formulation of reservations, acceptances, and objections stricto sensu is dealt with in paragraph 1; • paragraphs 2 and 3 deal with the mandatory or optional nature of confirmation of the various declarations, as the case may be; and • paragraph 4 concerns the requirement that withdrawal of reservations and objections be in writing.

B. Procedure for formulating reservations, express acceptance, and objection 15. Article 23(1) has two purposes: it deals with the form of reservations, objections, and express acceptance, and it determines, although only partially, the procedure for notification of these written declarations and their recipients.

Form of reservations, express acceptance, and objection 16. Pursuant to Article 23(1), States are to formulate a reservation, ‘express acceptance’, and objection ‘in writing’. Although Article 2 of the Convention requires that the treaty itself be ‘in written form’, it does not impose the same requirement with respect to a reservation, defined as a ‘unilateral statement’. Article 23(1) corrects this oversight.31 As will be seen, it appears that during drafting of the provision the requirement that a reservation be in written form was never in doubt.32 For the ILC, this formalism is easily (p. 599) explained by the need for communication with contracting parties, and the importance of notification and registration with the depositary.33 17. A summary reading of the first phrase of Article 23(1) may be misleading, however. It appears to treat reservation, acceptance, and objection equally: ‘A reservation, an express acceptance of a reservation and an objection to a reservation must be formulated in writing . . .’. In reality, a distinction must be made between reservation and objection, on the one hand, and acceptance of the reservation, on the other hand. Pursuant to Article 20(5), ‘a reservation is considered to have been accepted by a State if it shall have raised no objection to the reservation’; in other words, acceptance may be express (the term used in Art. 23) but is, in principle, tacit (although nothing prevents a State from stating explicitly and in writing that it accepts a reservation). This is not the situation where the treaty provides otherwise, or in the case of acceptance by the competent organ of an international obligation where the reservation concerns its constitutive act.34 It is only in such circumstances that acceptance of a reservation must necessarily be written (and also, withdrawal35). 18. This requirement, which goes without saying, according to the commentary of the ILC,36 was formulated by G. Fitzmaurice in 1956:37 ‘Reservations must be formally framed and proposed in writing, or recorded in some form in the minutes of a meeting or conference . . .’.38 With a different and more precise wording, this proposal was reprised in the First Report of Sir Humphrey Waldock39 and in draft Article 18(2)(a) adopted by the Commission at first reading.40 19. During second reading of the draft, the Commission opted for a stricter rule—the one that appears in Article 23(1) of the Convention—and excluded the possibility that reservations be included in the final act of the conference adopting the treaty or in a procès-verbal adopted on the occasion. It provided the following explanation: Statements of reservations are made in practice at various stages in the conclusion of a treaty. Thus, a reservation is not infrequently expressed during the negotiations and recorded in the minutes. Such embryo reservations have sometimes been relied upon afterwards as amounting to formal reservations. The Commission, however, considered it essential that the State concerned should formally reiterate the

statement when signing, ratifying, accepting, approving or acceding to a treaty in order that it should make its intention to formulate the reservation clear and definitive. Accordingly, a statement during the negotiations expressing a reservation is not, as such, recognized in article 16 [19 of the Convention] as a method of formulating a reservation and equally receives no mention in the present article.41 (p. 600) Thus, the Convention excludes all reservations made prior to signature, deeming them without legal effect on the treaty.42 20. In the same way, the possibility that reservations be made verbally was also eliminated.43 21. The requirement that the reservation be in written form is easily explained: Reservations are formal statements. Although their formulation in writing is not embraced by the term of the definition, it would according to article 23(1) of the Vienna Convention seem to be an absolute requirement. It is less common nowadays that the various acts of consenting to a treaty occur simultaneously; therefore it is not possible for an orally presented reservation to come to the knowledge of all contracting parties. In the era of differentiated treaty-making procedures it becomes essential for reservations to be put down in writing in order to be registered and notified by the depositary, so that all interested States would become aware of them. A reservation not notified cannot be acted upon. Other States would not be able to expressly accept or object to such reservations.44 22. The same applies to objections which play—or may play—a fundamental role concerning the effects of reservations.45 It is inconceivable that objections may be purely verbal, and therefore hardly surprising that the ILC was satisfied in this respect with reflecting the procedural rules relative to reservations themselves.46 For its part, guideline 2.6.7 included in the ILC Guide to Practice in 2008 provides without surprise that ‘[a]n objection must be formulated in writing’.47 23. States have no obligation to explain or justify their reservations or their objections. However, in guidelines 2.1.948 and 2.6.1049 of its Guide to Practice, the ILC recommended that ‘[a] reservation [or an objection] should to the extent possible indicate the reasons why it is being made’. 24. Although ‘the …acceptance of a reservation is, in the case of multilateral treaties, almost invariably implicit or tacit’,50 it might happen—but rarely—that a State expressly accepts a reservation formulated by another State party.51 By definition such a reservation must be formulated in writing, as Article 23(1) makes clear. 25. The problem of the form is different with respect to interpretative declarations, on which the Vienna Convention of 1969 is totally silent.52 The ILC53 defined interpretative (p. 601) declarations as a taking of position that could occur at any time54 the purpose of which was to specify or to clarify the meaning or the scope that a State intended to give to a treaty or to certain of its provisions, but without making this a condition for its consent to be bound. Consequently, the written formulation of such declarations is not indispensible, unlike the situation for reservations. It is certainly preferable that these be known to the other parties, but the fact they may not be known to them does not deprive them of all legal effect. The formulation of such verbal declarations is not all that unusual, and this has not led judges and arbitrators to deny them certain effects.55 26. The situation is different when the State that formulates the interpretative declaration intends to make its consent to be bound conditional on the interpretation that it has specified. Such a conditional interpretative declaration56 is subject, as a general rule, to the same legal rules that apply to reservations stricto sensu57 and they must be in written form.

Communication of reservations, express acceptance, and objection 27. It is obviously not sufficient for the reservation, objection, or express acceptance, as the case may be, to be in written form. In addition, this must be known to other interested States. This is what the second phrase of Article 23(1) establishes, when it requires that such written statements must be ‘communicated to the contracting States and other States entitled to become parties to the treaty’. 28. This condition—which is not without its problems—nevertheless raises two delicate questions: which authority is competent to formulate the reservation, acceptance, or objection, and how is the ‘communication’ to be made?58

Competent authority to formulate a reservation, acceptance, or objection 29. As Sir Humphrey Waldock specified in the draft he submitted to the ILC in 1962, the reservation must be formulated by ‘the representative of the reserving State’ at the time of signature ‘by a duly authorized representative of the reserving State’; or ‘by the competent authority of the reserving State’.59 This amounts to saying the same thing three times, but it is not completely adequate, because it still leaves open the question whether there are rules of general international law that specify the authority that is competent to formulate a reservation at the international level or whether this is left to the national legislation of each State. 30. The answer to this question can be deduced as much from the text of the Convention itself as from the relevant State practice. (p. 602) 31. By definition, the purpose of a reservation is to modify the legal effect of provisions of a treaty in relations between the parties. Although the reservation is an instrument that is distinct from the treaty itself, it is part of the overall regime and directly

affects the obligations of the parties. It leaves intact the actual treaty texts, but directly affects the ‘negotium’. Under the circumstances, it seems both logical and inevitable that reservations be formulated under the same conditions as the consent of the State to be bound. This is not a situation where international law depends exclusively on internal legislation. 32. In this respect, Article 7 of the Vienna Convention of 1969 has precise and detailed provisions that undoubtedly reflect the positive law in this area.60Mutatis mutandis, these rules can certainly be transposed to the issue of the authority to make reservations, it being understood that the formulation of a reservation ‘performed by a person who cannot be considered under article 7 …as authorized to represent a State for that purpose is without legal effect unless afterwards confirmed by that State’.61 33. These limits on the possibility of formulating reservations are largely confirmed by State practice. 34. In an aide-mémoire dated 1 July 1976, the Legal Counsel of the United Nations wrote: A reservation must be formulated in writing (article 23, para. 1, of the Convention), and both reservations and withdrawals of reservations must emanate from one of the three authorities (Head of State, Head of Government or Minister of Foreign Affairs) competent to bind the state internationally.62 Similarly, the Summary Practice of the Secretary-General as depositary of multilateral treaties, prepared by the Treaty Section of the Office of Legal Affairs, states: ‘The reservation must be included in the instrument or annexed to it and must emanate from one of the three qualified authorities.’63 It thus further refers to the general principles concerning the deposit of instuments through which a State expresses its acceptance to be bound.64 Moreover, ‘Reservations made at the time of signature must be authorized by the full powers granted to the signatory by one of the three qualified authorities or the signatory must be one of these authorities’.65 35. These rules are strictly applied: all instruments of ratification (or their equivalent) of treaties for which the Secretary-General is depositary and which contain reservations seem to have been signed by one of the ‘three authorities’ or, if by the Permanent Representative, a confirmation of full powers issued by one of the three authorities must be annexed. Furthermore, according to information provided to the authors, if this is not the case, the Permanent Representative is requested, unofficially but firmly, to regularize the situation.66 (p. 603) 36. It may be asked whether this practice, which transposes the rules in Article 7 of the Vienna Convention to reservations, is perhaps too rigid. For example, it might be more legitimate to admit that the representative of a State who is accredited to an international organization that is depositary of a treaty to which the State wishes to formulate a reservation should not have the authority to do this. The problem arises because this is indeed allowed by international organizations other than the United Nations. 37. Thus, it seems that the Secretary-General of the Organization of American States allows reservations to be submitted by the Permanent Representatives of Member States. This practice is confirmed by the provisions of Article VII of the 1928 Havana Convention on Treaties of the Pan American Union (not in force), which allows all instruments relating to the consent to be bound by treaties concluded at conferences of American States to be deposited ‘by the respective representative on the Governing Board, acting in the name of his Government, without need of special credentials for the deposit of the ratification’.67 Similarly, at the Council of Europe numerous reservations appear to have been consigned in letters of Permanent Representatives.68 38. In order to take account of this varied practice, in 2002 the ILC adopted guideline 2.1.3 as part of its Guide to Practice.69 This relatively flexible approach incorporates without change the rules set out in Article 7 of the Vienna Conventions on the Law of Treaties,70 the status of which as customary law is beyond question. It also preserves the less-rigid approach followed by international organizations other than the United Nations when they act as depositories, in the following manner: ‘Subject to the customary practices in international organizations which are depositaries of treaties . . .’.71 39. The international phase in the formulation of reservations is only the tip of the iceberg. As with all aspects of the procedure involving a State's consent to be bound, it is the conclusion of domestic processes that may be very complex. The formulation of reservations is part of the broader procedure of ratification (or acceptance, approbation, or adhesion).72 40. According to Paul Reuter, ‘[l]es pratiques constitutionnelles nationales en ce qui concerne les réserves et objections changent d'un pays à l'autre’,73 and even their (p. 604) summary description goes beyond the bounds of the present commentary.74 It bears mention that the procedure in formulating reservations does not necessarily correspond to that which is generally imposed with respect to consent to be bound. For example, in France only recently has the practice been followed of informing parliament of the text of reservations that the President of the Republic or the government intends to attach to the ratification of treaties or the approval of agreements, even when such instruments must be submitted to parliament pursuant to Article 53 of the 1958 Constitution.75 41. As noted by the ILC, ‘the only conclusion that can be drawn from these observations is that international law does not impose any specific rule with regard to the internal procedure for formulating reservations’.76 The manner in which States determine the authority that is competent to formulate reservations, and the requisite procedure, raises issues that are comparable to those with respect to ratification in general. It might seem reasonable to apply the rules concerning ‘imperfect ratification’ that are raised by Article 46 of the Convention (Provisions of internal law regarding competence to conclude treaties).

42. However, such transposition is not appropriate, because rules concerning the authority to conclude treaties are generally derived from the constitution, whereas this is not the case with reservations, which are a matter of practice. It seems unlikely that a violation of domestic legal provisions concerning reservations could be ‘manifest’, in the sense of Article 46 of the Convention. 43. In its Guide to Practice, the ILC incorporated guideline 2.1.4, which reads as follows:

2.1.4. Absence of consequences at the international level of the violation of internal rules regarding the formulation of reservations The determination of the competent authority and the procedure to be followed at the internal level for formulating a reservation is a matter for the internal law of each State or the relevant rules of each international organization. A State or an international organization may not invoke the fact that a reservation has been formulated in violation of a provision of the internal law of that State or the rules of that organization regarding competence and the procedure for formulating reservations as invalidating the reservation.77 44. These considerations can be readily transposed to issues of acceptance of reservations and objections.78 Domestic legal rules on their formulation are even less definitive, less public, and less accessible than those respecting reservations as such. Thus, to the extent that acceptance and objection affect the obligations of the State, it seems necessary that they be made by the authority competent to bind the State, and there can be no (p. 605) justification for a departure from the principles of Article 7 of the Convention. Like reservations, these declarations must come from one of the ‘three authorities’ that may commit a State at the international level,79 or from an individual producing full powers that have been issued by one or another of the three authorities. 45. Despite the flexibility of rules applicable to their form and the time when they may be formulated,80 interpretative declarations are not without effects at the international level with respect to the treaty with which they are associated.81 They must be formulated by a person who is deemed to represent the State for the adoption or authentification of a text, or for expression of its consent to be found by the treaty.82

Recipients of reservations, express acceptance, and objection The general rule 46. According to the second phrase of Article 23(1), a reservation, express acceptance, or objection must be communicated ‘to the contracting States and other States entitled to become parties to the treaty’. Certain issues arise in the construction of these words. 47. The expression ‘contracting State’ raises no particular problems. It is defined by Article 2(1)(f) of the 1969 Convention as ‘a State which has consented to be bound by the treaty, whether or not the treaty has entered into force’.83 More troublesome is the definition, and the determination in each concrete situation, of the scope of ‘other States entitled to become parties to the treaty’. As has been noted, ‘[n]ot all treaties are wholly clear as to which other states may become parties’.84 48. In his 1951 report on reservations to multilateral treaties, Brierly wrote: The following classes of States shall be entitled to be consulted as to any reservations formulated after the signature of this convention (or after this convention has become open to signature or accession): a) States entitled to become parties to the convention, b) States having signed or ratified the convention, c) States having ratified or acceded to the convention.85 In accordance with his recommendations, the ILC proposed that ‘in the absence of contrary provisions in any multilateral convention the depositary of a multilateral convention should, upon receipt of each reservation, communicate it to all States which are or which are entitled to become parties to the convention’.86 (p. 606) 49. Essentially, this formula was taken up by Waldock in 1962.87 It was also adopted by the Commission in the text adopted on first reading following slight modifications of a formal nature by the Drafting Committee.88 In 1966, it agreed upon requiring a communication to ‘the other States entitled to become parties to the treaty’89 an expression ‘regarded as more appropriate to describe the recipients of the type of communications in question’.90 50. At the Vienna Conference, the Canadian delegation noted that the proposed wording might ‘create difficulties for the depositary, because there were no criteria permitting a determination of what such States were. It then seemed preferable …to replace the expression with “negotiating States and contracting States”’, according to the amendment previously presented by Canada.91 But instead of this very sensible proposal, the Drafting Committee opted for a Spanish amendment92 that was incorporated into the final text of Article 23(1).

References

51. As can be seen, not only is the language obscure, the preparatory work of the 1969 Convention provides no clarification of the terms of paragraph 1(b) and (e) which, although they make so specific reference to reservations, require the depositary to communicate a copy of the text of the treaty ‘to the parties and to the States entitled to become parties to the treaty’ and to inform them of ‘notifications and communications relating to the treaty’.93 52. It is unfortunate that the Canadian proposal to limit the recipients of communications related to reservations94 was not accepted. It would have avoided practical difficulties for depositories, without significantly reducing the ‘useful’ notification provided to genuinely interested States and international organizations.95

References 53. It goes without saying that there is no problem when the treaty itself clearly determines those States or international organizations capable of becoming parties to the (p. 607) instrument, and certainly for ‘closed’ treaties such as those generally concluded under the auspices of regional international organization such as the Council of Europe,96 the Organization of American States,97 and the African Union.98 There is more difficulty with treaties that do not clearly specify those States that may become parties, or so-called ‘open’ treaties containing an ‘all States’99 clause or where it is ‘otherwise established’ that States that have participated in negotiating a treaty may subsequently accede to it.100 This is notably the case when the functions of depositary are assumed by a State that does not have diplomatic relations with some States,101 and that moreover does not recognize as States certain entities that claim this title. The 1997 Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties devotes an entire chapter to the problems encountered by the Secretary-General in determining ‘States and international organizations which may become parties’.102 This has been endorsed by scholars.103 Sometimes, ‘depositary notifications’ by the Secretary-General of the United Nations indicate that ‘all states’ have been informed, without other detail, while others provide a list of member States and nonmember States to whom notification has been made, whether or not they have observer status. 55. Essentially all acceptance of reservations is tacit,104 and there is virtually no practice concerning express acceptance. By contrast, there is a considerable body of practice concerning objections. It tends to reinforce the practice with respect to reservations themselves: they are transmitted to all signatory States, whether or not they are parties to the treaty.105 56. The rules applicable to the communication of reservations are not transposable to simple interpretative declarations,106 which may be formulated orally.107 Consequently, it would make no sense to require that they be formally communicated to interested States, it being understood that the State making such a declaration takes the risk that it will not produce the desired effect.

(p. 608) Reservations to constitutive acts of international organizations 57. In addition to the problems relating to the determination of States that are eligible to become parties to a treaty, Article 23(1) has a lacuna, probably due to inadvertence of the drafters of the Convention. It is silent on the special case of constitutive acts of international organizations. Article 20(3) requires the ‘acceptance of the competent organ’ of the organization for a reservation to a constitutive act to produce effects. This clearly requires that the reservation be communicated to the organization concerned, because it cannot pronounce itself on a reservation about which it has not been informed. 58. The first three Special Rapporteurs did not deal with the point. It was first addressed by Sir Humphrey Waldock in his 1962 report. He proposed a lengthy draft Article 17 on the ‘Power to formulate and withdraw reservations’. Paragraph 5 stated: However, in any case where a reservation is formulated to an instrument which is the constituent instrument of an international organization and the reservation is not one specifically authorized by such instrument, it shall be communicated to the Head of the secretariat of the organization concerned in order that the question of its admissibility may be brought before the competent organ of such organization.108 Waldock explained that this had been inserted ‘to cover a point to which attention is drawn in paragraph 81 of the Summary of the Practice of the Secretary-General’ (ST/LEG/7), where it is said: If the agreement should be a constitution establishing an international organization, the practice followed by the Secretary-General and the discussions in the Sixth Committee show that the reservation would be submitted to the competent organ of the organization before the State concerned was counted among the parties. The organization alone would be competent to interpret its constitution and to determine the compatibility of any reservation with its provisions.109 59. It is hardly surprising that Waldock raised the issue, because three years earlier the problem had arisen with respect to a reservation by India to the Convention on the InterGovernmental Maritime Consultative Organization. The Secretary-General of the United Nations, who was depositary of the Convention, communicated the text of the Indian reservation to the Organization. It had actually been formulated on the opening day of the first session of the General Assembly of the Inter-Governmental Maritime Consultative Organization. The Secretary-General suggested that the Secretariat refer the matter ‘for decision’ by its General Assembly. When challenged about the procedure, the SecretaryGeneral said that the practice was consistent with the provisions of the Convention in

question, with precedents applicable to deposit when an organ is able to pronounce on a reservation, and the views expressed on the subject by the General Assembly in earlier debates about reservations to multilateral treaties.110 The Secretary-General said that in previous cases reservations had been formulated to multilateral treaties in force that were the constitutions of organizations or that created deliberative bodies, and that he had always considered that the matter should be referred to the organ empowered to interpret the treaty in question.111 Examples that he gave included the reference to the World Health (p. 609) Assembly of the 1948 reservation by the United States to the Constitution of the World Health Organization112 and the 1949 reservations of the South African Custom Union to the General Agreement on Tariffs and Trade.113 In the 1997 Summary of Practice, the Secretary-General gave as another example of consistent practice in this area: when Germany and the United Kingdom accepted the Agreement establishing the African Development Bank of 17 May 1979, as amended, they made reservations which had not been contemplated in the Agreement. The Secretary-General, as depositary, duly communicated the reservations to the Bank and accepted the deposit of the instruments only after the Bank had informed him that it had accepted the reservations.114 60. Despite the silence of Article 23 on this point, the ILC specified, in the second paragraph of guideline 2.1.5 entitled ‘Communication of reservations’, adopted in 2002: ‘A reservation to a treaty in force which is the constituent instrument of an international organization or to a treaty which creates an organ that has the capacity to accept a reservation must also be communicated to such organization or organ’.115 61. At the same time, as the word ‘also’ indicates, the Commission clearly signalled that the reservation must be communicated not only to the organization itself but also to the member States. The accompanying commentary explains this as follows: Two arguments are advanced in support of this position. The first is that it is by no means evident that an organization's acceptance of the reservation precludes member States (and international organizations) from objecting to it …Secondly, there is a good practical argument to support this affirmative reply: even if the reservation is communicated to the organization itself, it is in fact its own member States (or international organizations) that will decide. It is therefore important for them to be aware of the reservation. A two-step procedure is a waste of time.116

Modalities of communication of reservations, express acceptance, and objection Procedure for communication of reservations 62. Article 23(1) requires the communication of reservations to certain recipients, albeit somewhat enigmatically, but it does not identify the person who is responsible for such communication. In most cases, this will be the depositary, a conclusion that also results from Article 78 of the Convention, which provides some indications on the modalities of the communication and its effects. However, according to both Article 77 and the general scheme of the Convention governing reservations, the role of the depositary is strictly confined, essentially to that of a transmission belt between the author of the reservation and the States to which it must be communicated. (p. 610) 63. As early as 1951, the ILC considered that the depositary was required ‘to communicate the text of any reservation to the Governments of all States on whose behalf the Convention has been signed or who are parties or entitled to become parties to the Convention’.117 In his Fourth Report, in 1965, Waldock specified the communication of reservations ‘by written notification to the depositary of instruments relating to the treaty and, failing any such depositary, to every State which is or is entitled to become a party to the treaty’.118 This language was not retained by the Commission, which preferred to consolidate all the rules relevant to notification and communication in a single provision, which became Article 78 of the Convention.119 It expressly requires the depositary, if there is one, to receive all notifications and communications relating to the treaty (para. (a)). Moreover, in accordance with Article 77, the depositary is assigned to inform ‘the parties and the States entitled to become parties to the treaty of acts, notifications and communications relating to the treaty’. 64. Obviously, the communication of reservations, express acceptance, and objection are those ‘relating to the treaty’. In its 1966 draft, the ILC expressly required the depositary to examine ‘whether a signature, an instrument or a reservation is in conformity with the provisions of the treaty and of the present articles’.120 The expression was replaced at Vienna with more general language: ‘the signature or any instrument, notification or communication relating to the treaty’,121 although this does not imply the exclusion of reservations from the scope of this provision.122 It is therefore beyond question that where there is a depositary, it is the initial recipient of communications by States concerning reservations. The depository bears the responsibility to notify other interested States. 65. In its 1966 commentary the ILC ‘underline[d] the obvious desirability of the prompt performance of this function by a depositary’.123 It is an important issue, because the reservation, express acceptance, and objection do not produce legal effects until they are received by the States to whom they are destined, rather than from the date of their formulation. If the communication is made directly by the author of the declaration, it is obvious that it has the responsibility for its prompt transmission. However, if there is a depositary, it must act with diligence, failing which the system breaks down: the reservation is without effect, and the State to whom it is destined may not react.124 (p. 611) 66. The ILC and its Special Rapporteur on reservations to treaties have collected 125

information from the major international organizations that are depositaries of treaties125 which shows that with modern methods of communication (fax and email in particular) the lapse of time involved in communication is extremely brief, varying between 24 hours and a few weeks.126 67. Based upon these observations, in 2002 the Commission adopted its guideline 2.1.6 (Procedure for communication of reservations), which was revised in 2008 and now reads as follows: Unless otherwise provided in the treaty or agreed by the contracting States and contracting international organizations, a communication relating to a reservation to a treaty shall be transmitted: (i) If there is no depositary, directly by the author of the reservation to the contracting States and contracting international organizations and other States and international organizations entitled to become parties to the treaty; or (ii) If there is a depositary, to the latter, which shall notify the States and international organizations for which it is intended as soon as possible. A communication relating to a reservation shall be considered as having been made with regard to a State or an organization only upon receipt by that State or organization. Where a communication relating to a reservation to a treaty is made by electronic mail or by facsimile, it must be confirmed by diplomatic note or depositary notification. In such a case the communication is considered as having been made at the date of the electronic mail or the facsimile. 68. These provisions apply to ‘Communication of reservations’ as a whole, and may also cover express acceptance and objection. They are based upon Articles 77 and 78 of the Vienna Convention, reflect established practice, and may be viewed as pure codification, subject perhaps to some hesitation with respect to the role of transmission by facsimile and electronic mail.127

Functions of the depositary 69. However, this is not the case with respect to the positions taken by the ILC concerning the procedure to be followed in the case of reservations that are manifestly forbidden, a matter that belongs to progressive development of the law rather than codification. 70. The general provisions concerning the international character of the functions of the depositary and the obligation to act impartially, which are found in Article 76(2), obviously apply with respect to reservations. This has a concrete application in Article 77(2), which treats the depositary as a ‘letter box’ that remains entirely neutral with respect to the various difficulties that may arise concerning a State party or a signatory. 71. These provisions are of particular importance with respect to reservations, because it is as a result of problems that arose with certain reservations that considerable limitations were imposed upon the functions of the depositary. 72. As early as 1927, when problems arose with respect to reservations that Austria intended to subject to its deferred signature of the International Opium Convention of (p. 612) 19 February 1925, the Council of the League of Nations adopted a resolution endorsing the conclusions of a Committee of Experts128 and giving instructions to the Secretary-General of the League on what conduct to adopt.129 But it is in the context of the United Nations that the most serious problems have arisen. 73. The main stages in the evolution of the role of the Secretary-General as depositary in respect of reservations should be recalled:130 initially, the Secretary-General seemed to determine alone his own rules of conduct in this area,131 subjecting the admissibility of reservations to the unanimous acceptance of the contracting parties or the international organization whose constituent instrument was involved.132 Following the Advisory Opinion of the International Court of Justice (ICJ) of 28 May 1951 on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide,133 the General Assembly adopted its first resolution calling on the Secretary-General in respect of future conventions: (i) To continue to act as depositary in connection with the deposit of documents containing reservations or objections, without passing upon the legal effect of such documents; and (ii) To communicate the text of such documents relating to reservations or objections to all States concerned, leaving it to each State to draw legal consequences from such communications.134 These guidelines were extended to all treaties for which the Secretary-General assumes depositary functions under Resolution 1452 B (XIV) of 7 December 1959, adopted as a result of the problems related to the reservations formulated by India to the constituent instrument of the International Maritime Consultative Organization (IMCO).135

References 74. This is the practice followed since then by the Secretary-General of the United Nations and, apparently, by all international organizations (or the heads of the secretariats of international organizations) with regard to reservations where the treaty in question does not contain a reservations clause.136 And this is the practice that the ILC drew on in formulating

the rules to be applied by the depositary in this area, tending to impose increasing limits on its powers.137 They were further restricted by the Vienna Convention to simple review of the form of communications regarding the treaty, including reservations and objections.138 75. As the ICJ noted in its 1951 Advisory Opinion, ‘the task of the Secretary-General would be simplified and would be confined to receiving reservations and objections and (p. 613) notifying them’.139 ‘This may be regarded as a positive innovation, or perhaps clarification of the modern law of treaties, especially of reservations to multilateral treaties, and is likely to reduce or at least limit the “dispute” element of unacceptable reservations.’140 But bearing in mind the practice of the Secretary-General and its consolidation in the 1969 Convention, this might also be viewed as a system that is unnecessarily complex,141 to the extent that the depositary is no longer able to impose even a degree of coherence and consistency in the interpretation and implementation of reservations.142 76. Guideline 2.1.7, which was included in 2002 in the Guide to Practice by the ILC, does not challenge these principles and confines itself essentially to formulating the general rules of Article 76(1)(d) and (2) of the 1986 Convention, applying them specifically to reservations:143

2.1.7 Functions of depositaries The depositary shall examine whether a reservation to a treaty formulated by a State or an international organization is in due and proper form and, where appropriate, bring the matter to the attention of the State or international organization concerned. In the event of any difference appearing between a State or an international organization and the depositary as to the performance of the latter's functions, the depositary shall bring the question to the attention of: (a) The signatory States and organizations and the contracting States and contracting organizations; or (b) Where appropriate, the competent organ of the international organization concerned. 77. But the ILC decided to go beyond this prudent approach, although not without hesitation, as can be gleaned from its reports to the General Assembly.144 It adopted guideline 2.1.8 which reads as follows:

2.1.8 Procedure in case of manifestly invalid reservations Where, in the opinion of the depositary, a reservation is manifestly invalid, the depositary shall draw the attention of the author of the reservation to what, in the depositary's view, constitutes the grounds for the invalidity of the reservation. If the author of the reservation maintains the reservation, the depositary shall communicate the text of the reservation to the signatory States and international organizations and to the contracting States and international organizations and, where appropriate, the competent organ of the international organization concerned, indicating the nature of legal problems raised by the reservation.145 (p. 614) 78. This is obviously a constructive innovation, because if the author of a reservation decides to maintain it, the normal procedure is followed. Nevertheless, it is a break with the tendency, which is reflected in the Vienna Convention, to limit the depositary to purely mechanical functions. 79. For their part, guidelines 2.6.9 (Procedure for the formulation of objections)146 and 2.8.5 (Procedure for formulating express acceptance) respectively align mutatis mutandis those procedures on that applicable to reservations and, very logically, the ILC considered that the rules of procedure applicable to the formulation of a reservation apply mutatis mutandis to that of express acceptances.147

C. Confirmation of reservations, acceptance, and objection 80. Article 23(2) deals with the question of confirmation of reservations, while Article 23(3) concerns express acceptance and objection, formulated or made before148 the reserving State has expressed its consent to be bound by the treaty. In the case of a reservation, it must be confirmed by the reserving State when expressing its consent to be bound by the treaty. This formality is not required in the case of express acceptance and objection.

A necessary formality (reservations) 81. Both the definition of reservations in Article 2(1)(d) and Article 19 of the 1969 Vienna Convention make it clear that a reservation must be formulated, in principle, at the time of signature, ratification, approval, or accession.149 It is not unusual during negotiation of a treaty for a State to declare its intent to formulate a reservation. Moreover, in the case of treaties in solemn form, signature only manifests the agreement of the State with the text of the instrument and is not an expression of its willingness to be bound. In such cases, the reservation must be formally confirmed when it expresses its agreement to be bound, in accordance with Article 23(2).150 82. The text results from a remark in the First Report by Sir Humphrey Waldock: ‘The present draft takes the line that the reservation will be presumed to have lapsed unless some indication is given in the instrument of ratification that it is maintained.’151 The Special

Rapporteur acknowledged candidly: ‘Clearly, different opinions may be held as to what exactly is the existing rule on the point, if indeed any rule exists at all’.152 83. The Commission accepted the idea contained in draft Article 18(2), which was adopted on first reading in 1962. The commentary is of interest, because it explains concisely the rationale for the rule, while at the same time hinting at some discontent with (p. 615) the institution of reservations. It required the State to ‘formally reiterate the statement in some manner in order that its intention actually to formulate a reservation should be clear’.153 The text was simplified on second reading,154 but the requirement that the reservation be confirmed was retained. Interesting comments were made on the ‘status’ of a reservation formulated upon signature and while awaiting ratification.155 At the time, the Special Rapporteur insisted that rules concerning acceptance of reservations should only apply once the reservation was confirmed, ‘otherwise, it might be difficult to frame a rule governing the case of tacit consent’.156 84. The only difference between draft Article 18(2) as finally adopted157 and the text of Article 23(2) of the Convention is the reference to reservations ‘formulated on the occasion of the adoption of the Text’, which was dropped at the Vienna Conference under circumstances described as ‘mysterious’.158 The commentary on the provision repeats almost verbatim the 1962 text,159 adding: Paragraph 2 concerns reservations made [after the negotiation]: on the occasion of the adoption of the text or upon signing the treaty subject to ratification, acceptance or approval. Here again the Commission considered it essential that, when definitely committing itself to be bound, the State should leave no doubt as to its final standpoint in regard to the reservation. The paragraph accordingly requires the State formally to confirm the reservation if it desires to maintain it. At the same time, it provides that in these cases the reservation shall be considered as having been made on the date of its confirmation, a point which is of importance for the operation of paragraph 5 of article 17 [Art. 20 in the Convention].160 85. Although there can hardly be any doubt that when Article 23(2) of the 1969 Convention was adopted, the text was rather more a matter of progressive development than codification,161 today it seems safe to consider that the obligation of formal confirmation of reservations formulated at the time of signature of treaties in solemn form is now a rule of general international law. Crystallized in the 1969 Convention, confirmed in 1986, and endorsed in guideline 2.2.1 of the ILC's Guide to Practice,162 it is followed in practice and seems consistent with opinio necessitatis juris such that it may be described as a customary norm. 86. In an aide-mémoire dated 1 July 1976, the Legal Counsel of the United Nations, describing the ‘practice of the Secretary-General in his capacity as depositary of multilateral treaties regarding …reservations and objections to reservations relating to treaties not containing provisions in that respect’, relied on Article 23(2) of the 1969 Vienna Convention in concluding: ‘If formulated at the time of signature subject to ratification, the reservation has only a declaratory effect, having the same legal value as the signature itself. It must be confirmed at the time of ratification; otherwise, it is deemed to have (p. 616) been withdrawn’.163 In 1980, the Council of Europe modified its practice in this respect.164 Article 23(2) has met with general approval from academic commentators165 although this was not always the case.166 87. At the initiative of the Special Rapporteur,167 when the ILC considered the question of confirmation of reservations, it also asked whether ‘embryonic’ reservations168 formulated at the time of initialling and signature ad referendum, which are referred to in Article 10 of the Convention along with signature, as means of authenticating the text of a treaty, should also be confirmed in the same way as reservations to signature. Concerned about ‘encouraging a growing number of statements which were intended to limit the scope of the text of the treaty, were formulated before the adoption of its text and were thus not in keeping with the definition of reservations’, a majority of members of the Commission was opposed to including a guideline on the subject in the Guide to Practice.169 88. Nevertheless, the ILC provided three useful clarifications of the text of Article 23(2), even if these appear almost obvious. 89. First, in guideline 2.2.2, the Commission reached the conclusion, based on an a contrario reading of the text of the provision, that the obligation to confirm applies exclusively to reservations to treaties in solemn form, and not to agreements that enter into force by mere signature:170

2.2.2 Instances of non-requirement of confirmation of reservations formulated when signing a treaty A reservation formulated when signing a treaty does not require subsequent confirmation when a State or an international organization expresses by its signature the consent to be bound by the treaty.171 90. Secondly, basing itself upon practice that was predominant but not constant at the time, the ILC considered, not without some hesitation, that confirmation is not required (p. 617) where a reservation is formulated at the time of signature of a treaty that expressly allows reservations to be made at this stage.172 91. Finally, basing itself on the adverb ‘formally’ in Article 23(2), the Commission said that ‘[f]ormal confirmation of a reservation must be made in writing’.173 This requirement reflects the same concerns as those that justify reservations themselves to be made in writing.174

A superfluous formality (acceptance and objection) 92. The result is quite different for express acceptances (where this is necessary) and objections. According to Article 23(3), if these are made prior to confirmation of the reservation they do not themselves require confirmation.175 An express acceptance of, or an objection to, a reservation made previously to confirmation of the reservation does not itself require confirmation. This explains why, in contrast with paragraph 2 which uses the word ‘formulated’, paragraph 3 uses the word ‘made’. Unlike reservations, acceptances and objections are sufficient in and of themselves, and require no other special condition.176 If they are ‘made’ prior to the confirmation of the reservation, this presents itself as premature. The act is without effect as long as the reserving State has not confirmed its reservation. However, once the reservation is ‘established’,177 the acceptance or objection produces its effects pursuant to Article 20 of the Vienna Convention. 93. However, although it was presented at that time as lex ferenda,178 this is a commonsense rule. Formulation of a reservation concerns all contracting States or those that may become contracting States. Acceptance and objection are a matter for the bilateral relations between the reserving State and the State that accepts or objects. The reservation is an ‘offer’ addressed to the contracting States as a whole, and they may accept or refuse it. The reserving State imperils the integrity of the treaty, threatening to reduce it to a series of bilateral relationships. Whether acceptance or objection takes place before or after confirmation of the reservation has no significance. What is important is that the reserving State be aware of the intent of its partners.179 This is the case as long as the latter respect the rules of notification in paragraph 1. 94. The rule in Article 23(3) only appeared in the final stages of the work of the ILC, in draft Article 18(3), adopted on second reading in 1966.180 It was without explanation or illustration, and was plainly presented as lex ferenda.181 It only referred to objections, (p. 618) the mention of express acceptance being added at the Vienna Conference following proposals from Hungary and Ceylon,182 probably driven by a desire for parallelism with Article 23(1).183 95. State practice concerning confirmation of objections is sparse and uncertain. The provision contained in Article 23, paragraph 3 of the 1969 Vienna Convention was included only at a very late stage of the drafting history of the Convention. It was only in 1966 that the non-requirement of confirmation of an objection was expressed in draft Article 18, paragraph 3, adopted on second reading in 1966,184 without explanation or illustration. 96. Sometimes, States confirm earlier objections with the reserving State once the latter has confirmed its reservation, but sometimes they do nothing.185 Aside from the fact that the second approach seems to be more common, the existence of confirmations does not negate the validity of the rule set out in Article 23(3). Rather, such confirmations are made out of caution, and not because they indicate the belief that there is any legal obligation (opinio juris). 97. One problem was overlooked during the preparatory work. It results from Article 20(4)(b) of the Vienna Convention, which requires that an objection to a reservation be made by a contracting State.186 This restriction should not be taken as an invitation to States to make objections. It means simply that only an objection made by a State that has agreed to be bound by the treaty may have legal effect.187 Under these conditions, it would have been useful to provide that an earlier objection be confirmed when a State indicates its consent to be bound. A proposal along these lines made at the Vienna Conference by Poland188 was not considered, and there is a gap in the Convention.189 98. In its Advisory Opinion of 1951 on reservations to the Genocide Convention, the ICJ wrote: Pending ratification, the provisional status created by signature confers upon the signatory a right to formulate as a precautionary measure objections which have themselves a provisional character. These would disappear if the signature were not followed by ratification, or they would become effective on ratification …The reserving State would be given notice that as soon as the constitutional (p. 619) or other processes, which cause the lapse of time before ratification, have been completed, it would be confronted with a valid objection which carries full legal effect.190 The Court seemed to admit that the effectiveness of the objection was automatic as a simple result of ratification, without confirmation being necessary.191 It did not take a formal position on the point. 99. There is almost no practice in this area,192 and the 1969 Convention is silent. In its 1951 Advisory Opinion, the ICJ seemed to take the view that objections made by non-party States do not require confirmation.193 Moreover: It is possible …to deduce from the omission from the text of the Vienna Conventions of any requirement that an objection made by a State or an international organization prior to ratification or approval should be confirmed that neither the members of the Commission nor the delegates at the Vienna Conference194 considered that such a confirmation was necessary. The fact that the Polish amendment,195 which aimed to bring objections in line with reservations in that respect, was not adopted further confirms this argument.196 For these reasons and others,197 the ILC adopted, in 2008, guideline 2.6.12 providing that there is no need for confirmation of an objection formulated prior to the expression of consent to be bound by a treaty, except in the case when the objecting State or international organization had not signed the treaty when it had formulated the objection.

References

D. Form and procedure for withdrawal of reservations and objections Form of withdrawal 100. Article 23(4) specifies that withdrawal of a reservation or of an objection198 ‘must be formulated in writing’. The provision should be read together with Article 22, which deals more generally with ‘Withdrawal of reservations and of objections to reservations’. The separation of the two is arbitrary, and Article 23(4) logically belongs with Article 22.199 (p. 620) 101. During the preparatory work of the Convention, the two provisions were considered in parallel as a general rule.200 The requirement of written form, although conceived somewhat differently, was already present at the first phase of draft Article 40(3), proposed in 1956 by Sir Gerald Fitzmaurice: ‘A reservation …may be withdrawn by formal notice at any time.’201 Waldock returned to the idea in draft Article 17(6), which appeared in his First Report, in 1962: ‘Withdrawal of the reservation shall be effected by written notification to the depositary of instruments relating to the treaty and, failing any such depositary, to every State which is or is entitled to become a party to the treaty’.202 Draft Article 19(5) applied the same approach to objections.203 102. Article 22 of the draft adopted on first reading by the ILC in 1962 took the same approach, but more indirectly, by providing that withdrawal of a reservation ‘takes effect when notice of it has been received by the other States concerned’,204 the word ‘notice’ implying that this be in writing. On second reading, any allusion to written form had disappeared, both in draft Article 18 on ‘Procedure regarding reservations’ and draft Article 20 on withdrawal of reservations. Only during the Vienna Conference was paragraph 4 added to Article 23, pursuant to amendments proposed by various States205 with a view to making the provision consistent with Article 22.206 Although K. Yasseen considered this to be a useless additional condition for a procedure that ‘should be facilitated as much as possible’,207 the principle was adopted by 98 to 0.208 The provision was reproduced without change in the 1986 Vienna Convention.209 103. Unquestionably, the procedure for withdrawal ‘should be facilitated as much as possible’.210 However, the small burden imposed by the requirement of written form should not be exaggerated. Furthermore, even if parallelism is not an absolute principle in international law,211 it would be incongruous that a reservation or an objection that must necessarily be in writing212 could be withdrawn orally. This could lead to considerable uncertainty for other contracting States, who would have received the written text of the reservation but might not have been informed of its withdrawal.213 104. Examining the issue of the form and procedure for withdrawal of reservations within the framework of the topic ‘Reservations on treaties’, the ILC considered whether (p. 621) withdrawal of a reservation might be implied and result from circumstances other than formal withdrawal.214 105. Certainly, withdrawal of a reservation cannot be presumed,215 but the question nevertheless arises as to whether certain acts or behaviour by a State should not be deemed as withdrawal of a reservation. For example, agreement by the same parties to a subsequent treaty with provisions identical to those in the treaty to which reservation was made might, in the absence of a reservation to the subsequent treaty, have the same effect as withdrawal of the initial reservation.216 But that would involve a distinct instrument, and the obligation of the reserving State would be defined by that second instrument rather than withdrawal of the reservation to the former. If, for example, a third State were to become a party to the first treaty, the reservation would continue to produce its full effects in relations between that State and the reserving State.217 106. The ICJ considered the possibility that a reservation had been withdrawn in the absence of formal notification in writing to the depository of the treaty, in the case between the Democratic Republic of the Congo and Rwanda. Rwanda had formulated a reservation to Article IX of the Genocide Convention at the time of ratification, but had subsequently indicated its intent to withdraw the reservation and had even adopted legislation authorizing the withdrawal. The Court signalled the absence of any agreement by which a reservation could be withdrawn in the absence of notification to the depositary.218 According to the Court: the adoption of that décret-loi and its publication in the Official Journal of the Rwandese Republic cannot in themselves amount to such notification. In order to have effect in international law, the withdrawal would have had to be the subject of a notice received at the international level.219 Furthermore: It observes that this Convention is a multilateral treaty whose depositary is the Secretary-General of the United Nations, and it considers that it was normally through the latter that Rwanda should have notified withdrawal of its reservation. Thus the Court notes that, although the Convention does not deal with the question of reservations, Article XVII thereof confers particular responsibilities on the United Nations Secretary-General in respect of notifications to States parties to the Convention or entitled to become parties; it is thus in principle through the medium of the Secretary-General that such States must be informed both of the making of a reservation to the Convention and of its withdrawal. Rwanda notified its reservation to

Article IX of the Genocide Convention to the Secretary-General. However, the Court does not have any evidence that Rwanda notified the Secretary-General of the withdrawal of this reservation.220 (p. 622) The Court made no reference to Article 23 of the Vienna Convention in its ruling. The matter was not addressed in any of the dissenting or individual Opinions.

References 107. It seems impossible to conclude that an expired reservation has been withdrawn. There are cases where a clause in a treaty limits the duration of the validity of reservations.221 But while withdrawal is a unilateral act, expiration is the consequence of the juridical event constituted by the lapse of a fixed period of time. The same can be said of reservations made for a pre-determined period.222 The reservation ceases to be in force not because of a particular act by the reserving State but as a result of the terms of the text itself. 108. The case of what are called ‘forgotten reservations’223 is more troublesome. A reservation is ‘forgotten’, in particular, when it forms part of a provision of domestic law which has subsequently been amended by a new text that renders it obsolete. This situation, which generally results from the negligence of the relevant authorities or insufficient consultation between the relevant services, has its drawbacks. Indeed, it can lead to legal chaos, particularly in States with a tradition of legal monism. Judges are expected to apply treaties (taking into account any reservations) that have been properly ratified. They take precedence over domestic legislation, even if it is posterior.224 The result can be a paradox, where a State that has brought its domestic law into conformity with a treaty may see the treaty itself prevail, minus the provisions subject to reservation, if the reservation itself has not been withdrawn properly. Moreover, since domestic laws are ‘merely facts’ from the standpoint of international law,225 a reservation which has not been withdrawn, having been made at the international level, will continue, in principle, to be fully effective and the reserving State will continue to avail itself of the reservation with regard to the other parties, although such an attitude could be questionable in terms of the principle of good faith.

References 109. Although it did not consider that a ‘forgotten reservation’ amounted to withdrawal, the Commission was alive to the growing concerns of various organs charged with implementation and oversight of treaties, especially although not exclusively in the area of human rights.226 During the presentation of periodic reports, human rights treaty bodies more or less systematically request States that have formulated reservations to (p. 623) review them and to consider their withdrawal.227 Accordingly, in 2003 the ILC adopted guideline 2.5.3 recommending that States and international organizations periodically review the usefulness of reservations that they have formulated.228

Procedure for withdrawal of reservations and objections 110. Although the purpose of adding paragraph 4 to Article 23 was to align the procedure for withdrawal of reservations and objections with that applicable to their formulation,229 the Convention contains no express norm to this effect. The ILC has endeavoured to fill this gap in its Guide to Practice. 111. For this purpose, it has adopted three guidelines which reproduce, mutatis mutandis, the corresponding provisions of the guidelines relative to the procedure for the formulation of reservations, to the absence of consequences at the international level for the breach of relevant domestic rules, and to the communication of reservations.230 112. The transposition of norms pertaining to the formulation of reservations is not without posing some difficulties. It is not obvious that the rule of parallelism of form belongs to international law. Referring to draft Article 51 on the law of treaties concerning the end of a treaty or the withdrawal of consent of the parties, in 1966 the Commission considered that ‘this theory reflects the constitutional practice of particular States and not a rule of international law. In its opinion, international law does not accept the theory of the “acte contraire” ’.231 However, as Paul Reuter noted, the Commission ‘is really taking exception only to the formalist conception of international agreements: it feels that what one conceptual act has established, another can undo, even if the second takes a different form from the first. In fact, the Commission is really accepting a non-formalist conception of the theory of the acte contraire’.232 According to the ILC: This nuanced position surely can and should be applied to the issue of reservations: it is not essential that the procedure followed in withdrawing a reservation should be identical with that used for formulating it, particularly since a withdrawal is generally welcome. The withdrawal should, however, leave all the Contracting Parties in no doubt as to the will of the State or the (p. 624) international organization which takes that step to renounce its reservation. It therefore seems reasonable to proceed on the basis of the idea that the procedure for withdrawing reservations should be modelled on the procedure for formulating them, although that may involve some adjustment and fine-tuning where appropriate.233

References 113. There is no real reason not to transpose these rules to the withdrawal of reservations.

Their justification with respect to formulation of reservations also applies to their withdrawal. The reservation has altered the respective obligations of the reserving State and the other contracting parties. It must emanate from the same individuals or organs as those with the authority to engage the State at the international level. The same must therefore apply, a fortiori, to the withdrawal, which completes the commitment of the reserving State. 114. The Legal Counsel of the United Nations took a clear position in this respect in an opinion dated 11 July 1974.234 He noted that: on several occasions, there has been a tendency in the Secretary-General's depositary practice, with a view to a broader application of treaties, to receive in deposit withdrawals of reservations made in the form of notes verbales or letters from the Permanent Representative to the United Nations. It was considered that the Permanent Representative duly accredited with the United Nations and acting upon instructions from his Government, by virtue of his functions and without having to produce full powers, had been authorized to do so.235 115. Since then, the Secretary-General of the United Nations seems to have reconsidered his position, and no longer accepts notification of the withdrawal of reservations from permanent representatives accredited to the Organization. In the most recent edition of the Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, the Treaty Section of the Office of Legal Affairs indicated that ‘[w]ithdrawal must be made in writing and under the signature of one of the three recognized authorities, since such withdrawal shall normally result, in substance, in a modification of the scope of the application of the treaty’.236 On the other hand, publications of the Council of Europe indicate that reservations may be formulated and withdrawn by letters from permanent representatives accredited to the Organization.237 116. As for the procedure for communication of withdrawal of reservations, the practice of the Secretary-General of the United Nations and that of the Council of Europe are the same. They both follow the procedure applicable to the communication of reservations. They are the recipients of reservations formulated by States with respect to those treaties for which they are the depository, and they communicate these to other States parties and those capable of becoming States parties.238 Moreover, when express (p. 625) conventional provisions deal with the procedure for withdrawal of reservations, they generally follow the model applicable to their formulation.239 In its guideline 2.7.3, adopted in 2008, the ILC has stated that the rules applicable to the withdrawal of reservations ‘are applicable mutatis mutandis to the withdrawal of objections to reservations’.240 *

ALAIN PELLET

 WILLIAM SCHABAS **

Footnotes: 1 The idea of a provision devoted to the procedure was proposed by the special rapporteur of the ILC in 1965: ‘Fourth Report on the Law of Treaties, by Sir Humphrey Waldock, Special Rapporteur’, A/CN.4/177 and Add.1 and 2 (1965), YILC, 1965, vol. II, pp 53–4, paras 13–20. The Drafting Committee decided to place it at the end of the section on reservations to multilateral treaties, as this provision ‘applied to all the matters dealt with in that section’ (United Nations Conference on the Law of Treaties, First Session, Official Records, Summary Records, A/CONF.39/11/Add.1, 29th plenary meeting, 19 May 1969, p 159, para 11). 2 See the commentary on Art. 21 and Section 4.1 of the ILC Guide to Practice (Establishment of a Reservation). 3 See the commentary on Art. 19, Section C. 4 See the bibliography at the beginning of this chapter. 5 See draft Art. 10(2) (formal communication), proposed by J. L. Brierly in his First Report, YILC, 1950, vol. II, pp 239–40, paras 90–2 and draft Art. 37(2) (in writing, formal communication), proposed by Sir Gerald Fitzmaurice in his First Report, YILC, 1956, vol. II, pp 115 and 126–7. 6 See draft Art. 17, paras 3–6 (in writing, confirmation, formal communication, withdrawal), YILC, 1962, vol. II, pp 60–1 and 66; see also draft Art. 19, paras 2 and 5, on procedure concerning formulation and withdrawal of objections to reservations, ibid, pp 62 and 68. 7 YILC, 1962, vol. II, pp 175–6 and 180. 8 See the Fourth Report of Sir Humphrey Waldock, YILC, 1965, vol. II, pp 45–56. 9 Ibid, draft Art. 20, p 53, para. 13. 10 YILC, 1965, vol. I, 803rd meeting, 16 June 1965, pp 197–9, paras 30–56; for the draft text, see ibid, vol. II, p 73. 11 YILC, 1966, vol. II, p 270, para. 1 of the commentary on draft Art. 73. 12 See Art. 78 (79 in the Vienna Convention of 1986) and, on the functions of the depositary in this area, Arts 76 and 77 (77 and 78 in the 1986 Convention). 13 YILC, 1966, vol. II, p 208. 14 However, see infra paras 50 and 84. 15 See especially United Nations Conference on the Law of Treaties between States and International Organizations or between International Organizations, Official Records, Documents of the Conference, A/CONF.39/11/Add.2, Art. 18 (Procedure regarding reservations), pp 138–9, paras 190–6, and the references cited. See also Summary Records of the Plenary Meetings and of the Meetings of the Committee of the Whole, Vienna, 18 February–21 March 1986 (A/CONF.129/16), 23rd meeting, 11 April 1968, pp 124–5, paras 29–

42. 16 See infra para. 100. 17 See the commentary on Art. 23 of the 1986 Convention. 18 No more than the term ‘withdrawal’—see the commentary on Art. 22(3) and (4), and infra paras 101–3. 19 See the commentary on this provision. On the definition of acceptance and objection, see the commentary on Art. 20. 20 This was added to Art. 2(d) of the 1986 Vienna Convention. 21 See the commentary on Art. 19. 22 Implying that the State (or international organization) must specify in its objection that it is opposed to the entry into force of the treaty between itself and the reserving State—see the commentary on this provision. 23 See supra para. 5. 24 See the commentaries on Arts 2(1)(d) and 19. 25 See the commentary on Art. 22. 26 See infra paras 29–44. 27 See infra paras 109–15. 28 See the commentary on Art. 21. 29 See the commentary on Art. 19. 30 The most recent version of the guideline is in the 2010 annual report of the Commission, 65/10. 31 This requirement concerning the form of a reservation and its notification to States and organizations that are parties to the treaty, as well as confirmation of a reservation, is confirmed in guidelines 2.1.1, 2.1.2, and 2.1.5 of the ILC Guide to Practice. See, on this point, the comments of the Special Rapporteur, 56/10, para. 120. The most recent version of the guideline is in the 2010 annual report of the Commission, 65/10. 32 See the comments of J. L. Brierly in his First Report on the Law of Treaties: YILC, 1950, vol. II, p 239; also, G. G. Fitzmaurice, draft Art. 37(2), YILC, 1956, vol. II, p 115 (see also draft Art. 39(1)(b)(ii); ibid); Sir H. Waldock, YILC, 1962, vol. II, p 60. 33 57/10, p 66. Academic commentators have been cited by the Commission in support: F. Horn, Reservations and Interpretative Declarations to Multilateral Treaties (The Hague: TMC Asser Instituut, 1988), p 44; and L. Lijnzaad, Reservations to UN Human Rights Treaties: Ratify and Ruin (The Hague: Martinus Nijhoff, 1994), p 50. 34 See the commentary on Art. 20. 35 Article 23(4) creates a symmetry between the formulation and the withdrawal of reservations and objections. See infra para. 103. 36 See YILC, 1966, vol. II, p 208. 37 In his First Report, in 1950, Brierly had proposed the following: Unless the contrary is indicated in a treaty, the text of a proposed reservation thereto must be authenticated together with the text or texts of that treaty or otherwise formally communicated in the same manner as an instrument or copy of an instrument of acceptance of that treaty. (YILC, 1950, vol. II, p 239) 38 Draft Art. 37(2), YILC, 1956, vol. II, p 115. 39 See YILC, 1962, vol. II, p 60. 40 Ibid, pp 175–6. 41 YILC, 1966, vol. II, p 208. 42 In its 2002 report, the Commission does not exclude the possibility of a verbal reservation, noting that the form is of no importance provided that a written document is required subsequently: 57/10, p 67. 43 It seems that Waldock did not totally exclude the possibility during discussion in the ILC, but what he had in mind was announcement during negotiations that a reservation would be made (see YILC, 1962, vol. I, 663rd meeting, 18 June 1962, p 223, para. 34). 44 F. Horn, supra n 33, p 44; see also L. Lijnzaad, supra n 33, p 50. 45 See the commentary on Art. 21. 46 See the commentary on draft Art. 19 adopted on first reading in 1962 in YILC, 1962, vol. II, p 180. The 1966 commentary omits to deal with objections (see YILC, 1966, vol. II, p 208). 47 For the commentary of this guideline, see ILC report 2008, A/63/10, pp 195–7. 48 See ibid, pp 184–9. 49 See ibid, pp 203–6. 50 D. W. Grieg, ‘Reservations: Equity as a Balancing Factor?’, Australian Yearbook of Int'l L, 1995, p 120. In the same sense, see also F. Horn, supra n 33, p 124. L. Lijnzaad, supra n 33, p 46; R. Riquelme Cortado, Las reservas a los tratados: Lagunas y ambigüedades del régimen de Viena (Murcia: Universidad de Murcia, 2004), pp 211 ff; and D. Müller, commentary on Art. 20.

51 See the examples cited in ILC report 2009, A/64/10, p 234, para. 7 of the commentary of guideline 2.8.3 (Express acceptance of a reservation). 52 See the commentary on Art. 2, para. 1(d). 53 Guideline 1.2 of the ILC Guide to Practice concerning reservations; see the text and the accompanying commentary in YILC, 1999, vol. II, Part Two, pp 97–103. 54 See guideline 2.4.3 in YILC, 2001, vol. II, Part Two, pp 192–3. 55 Ibid. 56 See the definition proposed in guideline 1.2.1 of the Guide to Practice (YILC, 1999, vol. II, Part Two, p 103). 57 Significantly, although the ILC initially had devoted a series of guidelines specifically addressed to conditional interpretative declarations, it finally confined itself to a reference to the rules applicable to reservations (see A/63/10, p 141); see also Pellet, Seventh Report on Reservations to Treaties, A/CN.4/526, para. 43. 58 The following discussion (paras 29–79) is largely based upon the Sixth Report of Alain Pellet to the ILC on reservations to treaties, A/CN.4/518/Add.1, paras 54–133 and Add.2, paras 134–73. They are largely reflected in the commentaries that the Commission accompanied to guidelines 2.1.3–2.1.8 and 2.4.1, 2.4.2, and 2.4.7 of the Guide to Practice concerning reservations (see the ILC Report to General Assembly, 2002, A/57/10, pp 75–131 (YILC, 2002, vol. II, Part Two, pp 30–48)). 59 First Report on the Law of Treaties, draft Art. 17, para. 3(a) (YILC, 1962, vol. II, p 60). 60 See the commentary on Art. 7. 61 See Art. 8 of the Convention. 62 UNJY, 1976, pp 218–19, para. 7. 63 Summary of Practice of the Secretary-General as Depositary of Multilateral Agreements— United Nations Publications, ST/LEG/7, p 49, para. 161. 64 The same passage refers to paras 121 and 122, ibid, p 36. 65 Ibid, p 62, para. 208; reference to Ch. VI of Summary of Practice of the Secretary-General as Depositary of Multilateral Agreements (Full powers and signatures). 66 This is confirmed, by analogy, in the case involving India and Pakistan before the ICJ relating to the aerial incident of 10 August 1999. The oral pleadings show that in an initial communication dated 3 October 1973, the Pakistan Mission to the United Nations notified its intention to succeed to British India as a party to the Arbitration Act 1928. In a note dated 31 January 1974, the Secretary-General requested that this notification be made ‘in the form prescribed’, ie by one of the three authorities mentioned supra; this subsequently took the form of a new communcation (formulated somewhat differently than that of the previous year) dated 30 May 1974, signed by the Prime Minister of Pakistan (see the pleadings of Sir Elihu Lauterpacht for Pakistan, 5 April 2000, CR/2000/3, and A. Pellet for India, 6 April 2000, CR/2000/4). Although the episode concerned a notification of succession and not the formulation of a reservation, in a general sense it attests to the vigilance of the SecretaryGeneral in applying rules that concern the intent of States to express their consent to be bound by treaties. 67 See the reply of the OAS in ‘Depositary practice in relation to reservations’, SecretaryGeneral's Report submitted in accordance with Res. 1452 B (XIX) of the General Assembly, A/5687, reprinted in YILC, 1965, vol. II, p 84. 68 See ETS no. 24. The rules applied to States ought also to be applicable to international organizations in a more complete manner than is suggested by Art. 7(2) of the Vienna Convention on the Law of Treaties 1986. Specifically, the head of the secretariat of an international organization or its representatives accredited to States or to another organization should be considered competent to engage the organization. 69 See para. 17 of the commentary on guideline 2.1.3, YILC, 2002, vol. II, Part Two, p 32.. 70 The Guide to Practice covers treaties concluded between States and those to which international organizations are parties. 71 See the commentary on Art. 7. 72 P. Daillier, M. Forteau, and A. Pellet, Droit international public (8th edn, Paris: LGDJ, 2009), pp 161–2, fn 85. 73 P. Reuter, Introduction au droit des treaties (3rd revised and expanded edn by Philippe Cahier, Paris: PUF, 1995), pp 84–5, para. 133* (‘[n]ational constitutional practices concerning reservations and objections vary from one country to another’—own translation). Paul Reuter, Introduction to the law of treaties (trans. Jose Mico and Peter Haggenmacher, London, New York: Kegan Paul International/J. Wiley & Sons, 1995). 74 In para. 3 of the commentary on guideline 2.1.4 of the Guide to Practice (YILC, 2002, vol. II, Part Two, p 32), the ILC notes that ‘of the 23 States which replied to the Commission's questionnaire on reservations to treaties and whose answers to questions 1.7, 1.7.1, 1.7.2, 1.8, 1.8.1 and 1.8.2 134 are utilizable, competence to formulate a reservation belongs to: the executive branch alone in six cases; the Parliament alone in five cases; and it is shared between them in 12 cases’, according to various modalities (references omitted). 75 A. Pellet, ‘Commentaire de l'article 53’ in Fr. Luchaire and G. Conac, La Constitution de la République française de 1958 (2nd edn, Paris: Economica, 1987), pp 1047–50. 76 See para. 7 of the commentary on guideline 2.1.4, YILC, 2002, vol. II, Part Two, p 33.

77 Ibid, p 75. 78 See R. Baratta, Gli effetti delle riserve ai trattati (Milan: Giuffrè, 1999), pp 339–41. 79 See supra paras 31–8. 80 See supra para. 25. Conditional interpretative declarations follow rules of form and procedure applicable to reservations. See supra para. 26. 81 Ibid. 82 See guideline 2.4.1 adopted by the ILC in 2002 (YILC, 2002, vol. II, Part Two, p 46). Also, guideline 2.4.2 (Formulation of an interpretative declaration at the internal level), ibid, p 47. 83 See also Art. 2(1)(f) of the 1986 Convention and Art. 2(k) of the Vienna Convention on Succession of States in respect of Treaties of 1978, which adopt the same definition of ‘contracting States’. 84 Sir R. Jennings and Sir A. Watts, Oppenheim's International Law, vol. I, Peace (9th edn, Harlow: Longman, 1992), p 1248, fn 4. 85 YILC, 1951, vol. II, p 16. 86 Ibid, p 130, para. 34. In 1953, Lauterpacht proposed a more vague formulation: ‘The text of the reservations received shall be communicated by the depositary authority to all the interested States’ (YILC, 1953, vol. II, p 92). Fitzmaurice contemplated ‘all the States which have taken part in the negotiation and drawing up of the treaty or which, by giving their signature, ratification, accession or acceptance, have manifested their interest in it’ (draft Art. 39(1)(b)(ii), YILC, 1956, vol. II, p 115). 87 First Report on the Law of Treaties, YILC, 1962, vol. II, p 60. The language subsequently underwent some modifications: Sir Humphrey Waldock, Fourth Report, YILC, 1965, vol. II, p 45 (see infra para. 64) and the 1965 report of the Commission, ibid, p 162. 88 Draft Art. 18(3), YILC, 1962, vol. II, p 176. 89 Draft Art. 18(1), YILC, 1966, vol. II, p 208. 90 Explanation provided by Briggs, president of the Drafting Committee, YILC, 1966, vol. I, Part Two, p 293. 91 Official Records of the United Nations Conference on the Law of Treaties, 1st and 2nd sessions (Documents of the Conference), 23rd session of the Plenary Committee, 11 April 1968, para. 38, referring to A/CONF.39/C.1/L.151. Jochen A. Frowein has noted that the United States expressed the same concern in the General Assembly in 1966 when the draft Articles of the ILC concerning the depositary were discussed by the General Assembly in 1966 (A/6309/Rev.1, p 176) (‘Some Considerations Regarding the Function of the Depositary— Comments on Art. 72 Para 1 (d) of the ILC's Draft Articles on the Law of Treaties’ [1967] ZaöRV, 1967, p 533); see also S. Rosenne, ‘More on the Depositary of International Treaties’, AJIL, 1970, vol. 64, pp 847–8. 92 A/CONF.39/C.1/L.149, para. 192(i). For the text that was adopted, see ibid, para. 196. 93 On the origin of these provisions, see notably Brierly's 1951 report (YILC, 1951, vol. II, p 27), and the conclusions of the Commission (ibid, p 130, para. 34(1)); Arts 17(4)(c) and 27(6) (c) of Waldock's 1962 draft (YILC, 1962, vol. II, pp 60 and 82), and Art. 29(5) of the draft adopted by the Commission on first reading (ibid, pp 185–6); and the draft Art. 72 adopted definitively by the Commission in 1966 (YILC, 1966, vol. II, p 269). 94 And by Ushakov during the discussions in the Commission in 1977 (see YILC, 1977, vol. I, 1451st meeting, 1 July 1977, pp 193–4). 95 Although some States may not be a party to the United Nations Convention on Privileges and Immunities of 1947 and are not eligible to ratify it, the specialized bodies of the United Nations receive communications concerning reservations that are formulated by these States. See Summary of Practice, supra n 63, pp 60–1, paras 199–203. 96 eg see Art. K(1) of 3 May 1996 version of the European Social Charter: ‘This Charter shall be open for signature by the member States of the Council of Europe’. Or Art. 32(1) of the Criminal Law Convention on Corruption of 27 January 1999. 97 eg Art. XXI of the Inter-American Convention against Corruption of 29 March 1996. 98 eg Art. 12(1) of the Lusaka Agreement on Co-operative Enforcement. Operations directed at Illegal Trade in Wild Fauna and Flora. 99 See Art. XIII of the 1973 Convention on the Suppression and Punishment of the Crime of Apartheid: ‘The present Convention is open for signature by all States’; or Art. 84(1) of the Vienna Convention of 1986: ‘The present Convention shall remain open for accession by any State, by Namibia, represented by the United Nations Council for Namibia, and by any international organization which has the capacity to conclude treaties’. See also Art. 305 of the United Nations Convention on the Law of the Sea of 1982 which is open not only to ‘all States’, but also to Namibia (prior to its independence) and to autonomous territories and States. Article 81 of the 1969 Vienna Convention, on the other hand, specifies that only States may become parties. 100 See the commentary on Art. 15 of the Vienna Convention of 1969 in the present work. 101 See the commentary on Art. 74 of the Vienna Convention of 1969 in the present work. 102 Supra n 63, ch. V, pp 21–30, paras 73–100. 103 See esp. J. A. Frowein, supra n 91, pp 533–9, and S. Rosenne, supra n 91, pp 847–8. 104 See supra, 600. There is, however, practice with respect to acceptance of reservations to constitutive acts of international organizations. See infra paras 57–63.

105 See P. H. Imbert, Les réserves aux traités multilatéraux (Paris: Pedone, 1979), p 151, or R. Baratta, supra n 78, pp 342–3. With respect to treaties under the auspices of the Council of Euorpe, the Secretary-General of the Organization communicates objections to all member States: J. Polakiewicz, Treaty-Making in the Council of Europe (Strasbourg: Council of Europe Publishing, 1999), p 99. 106 In contrast to conditional interpretative declarations, which are subject to the same legal regime as reservations. 107 See supra para. 22. 108 YILC, 1962, vol. II, p 61. 109 Ibid, para. 12 of the commentary on draft Art. 17, p 66. 110 ‘Reservations to Multilateral Treaties: Convention creating the Inter-Governmental Maritime Consultative Organization’, A/4235, para. 18. See also O. Schachter, ‘The Question of Treaty Reservations at the 1959 General Assembly’, AJIL, 1960, vol. 54, p 372. 111 A/4235, para. 21. 112 See also O. Schachter, ‘Development of International Law through the Legal Opinions of the United Nations Secretariat’, BYBIL, 1948, vol. 24, p 124. 113 A/4235, para. 22. 114 Supra n 63, p 59, para. 198 (references omitted). For another example, concerning France's reservation to the Agreement of 12 August 1977 for the creation of the Asia-Pacific Institute for Broadcasting Development, see F. Horn, supra n 33, pp 346–7. 115 YILC, 2002, vol. II, Part Two, p 47. The reference to ‘an organ that has the capacity to accept a reservation’ recalls Waldock's allusion to ‘deliberative organs’ in the Summary of Practice (see supra para. 5) and which probably contemplated the GATT. In its commentary on this provision, the Commission said: It would seem justifiable to apply this same rule to reservations to constituent instruments stricto sensu and to reservations to treaties creating oversight bodies that assist in the application of the treaty whose status as international organizations might be subject to challenge. (ibid, p 38, para. 28 of the commentary on guideline 2.1.5) 116 Ibid, p 38, para. 31 of the commentary on guideline 2.1.5. 117 See supra para. 48. 118 YILC, 1965, vol. II, p 56. In observations on draft Art. 22 adopted on first reading, Israel had suggested that reservations should be notified to the depositary (see YILC, 1966, vol. II, p 336, para. 14). 119 See supra para. 5. 120 YILC, 1966, vol. II, p 293, draft Art. 72(1)(d), emphasis added. 121 Article 77(1)(d). The new language came from an amendment proposed by the Byelorussian SSR, adopted by the Plenary Committee by a majority of 32 to 24, with 27 abstentions (Official Records of the United Nations Conference on the Law of Treaties, 1st and 2nd sessions (Documents of the Conference), paras 657(iv) and 660(i)). 122 As the ILC explained in the commentary on draft Art. 73 (which became Art. 78 of the 1969 Convention), the rule set out in para. (a) of this provision ‘relates essentially to notifications and communications relating to the “life” of the treaty—acts establishing consent, reservations, objections, notices regarding invalidity, termination, etc.’ (YILC, 1966, vol. II, p 270, para. 2, emphasis added). 123 YILC, 1966, vol. II, para. 5, p 270. 124 See the commentary on draft Art. 72 in the 1966 ILC Report (YILC, 1966, vol. II, pp 170– 1, paras 3–6). See also T. O. Elias, The Modern Law of Treaties (Leiden: Sijthoff; Dobbs Ferry: Oceana, 1974), pp 216–17. 125 The United Nations, the International Metereological Association, the Council of Europe, and the Organization of American States. 126 See the commentary on guideline 2.1.6 of the Guide to Practice, YILC, 2002, vol. II, Part Two, pp 40–1, paras 14–17. 127 See the commentary on this provision (ibid, pp 39–42). 128 See the report of the Committee, composed of Messrs Fromageot, McNair, and Diéna, in JOSdN, 1927, p 881. 129 Resolution of 17 June 1927. See also Res. XXIX of the Eighth Conference of American States (Lima 1938), which established the rules to be followed by the Pan American Union with regard to reservations. 130 See also, eg, Pierre-Henri Imbert, ‘A l'occasion de l'entrée en vigueur de la Convention de Vienne sur le droit des traités—Réflexions sur la pratique suivie par le Secrétaire général des Nations Unies dans l'exercice de ses fonctions de dépositaire’, AFDI, 1980, pp 528–9, or Shabtai Rosenne, Developments in the Law of Treaties 1945–1986 (Cambridge: Cambridge University Press, 1987), pp 429–34. 131 Jacques Dehaussy, ‘Le dépositaire de traités’, RGDIP, 1952, p 514. 132 See the Summary of the Practice of the Secretary-General as Depositary of Multilateral Treaties, supra n 63, pp 50–1, paras 168–71. 133 ICJ Reports 1951, p 15.

134 Resolution 598 (VI) of 12 January 1952, para. 3(b). 135 See supra para. 59. 136 See the Summary of the Practice of the Secretary-General as Depositary of Multilateral Treaties, supra n 63, pp 60–1, paras 168–71. 137 Compare draft Art. 29(5), adopted on first reading in 1962 (YILC, 1962, vol. II, p 185) and draft Art. 72(1)(d) (YILC, 1966, vol. II, p 293) and the commentary on this provision (ibid, pp 293–4). 138 See Art. 77(1)(d). 139 ICJ Reports 1951, p 27. 140 S. Rosenne, supra n 130, pp 435–6. 141 P. H. Imbert, supra n 130, p 534. The writer speaks only of the practice of the SecretaryGeneral, and seems to consider that the Vienna Convention simplifies the issues, a questionable conclusion. 142 The depositary may play a not insignificant role in the ‘reservation dialogue’ by bringing together, where appropriate, the conflicting views of the reserving State and the State or States that object to the reservation. See H. Han, ‘The UN Secretary General's Treaty Depositary Function: Legal Implications’, Brooklyn J Int'l L, 1988, vol. 14 pp 570, 571. 143 Corresponding perfectly to Art. 77 of the Vienna Convention of 1969, subject only to the mention of international organizations. 144 See the 2001 report, YILC, 2001, vol. II, Part Two, p 18, para. 25 and the commentary on guideline 2.1.8 in its 2002 report, YILC, 2002, vol. II, Part Two, pp 45–6. 145 This version was adopted in 2006 in order to replace the word ‘impermissible’ which had been placed in square brackets until the Commission would have reconsidered the appropriate terminology (see para. 7) of the commentary on the 2002 draft, ibid, p 114). The new text, with the adapted commentary, appears in the 2006 report, A/61/10, pp 359–61. 146 For the text and the commentary on guideline 2.6.9, see ibid, pp 198–203. 147 For the text and the commentary on guideline 2.8.5, see ibid, p 236. 148 On the distinction between the two terms, see the commentary on Art. 21 in this work. 149 See supra paras 21–6. 150 The material that follows is largely based on the Fifth Report by Special Rapporteur Alain Pellet of the ILC on reservations to treaties, A/CN.4/508/Add.3, paras 235–78 (YILC, 2000, vol. II, Part One). They were incorporated in large part into the commentaries adopted by the Commission to its guidelines 2.1.2, 2.2.1–2.2.3, 2.4.4, and 2.4.5 of the Guide to Practice (see the reports of the ILC to the General Assembly for 2002, A/57/10, pp 67–8 (guideline 2.1.2) and YILC, 2001, vol. II, Part Two, pp 180–4 and 193–4. 151 Draft Art. 17(3)(b), YILC, 1962, vol. II, p 60. 152 Ibid. 153 YILC, 1962, vol. II, p 186. 154 See supra para. 19. 155 See esp. the comments of Bartoš and Lachs, YILC, 1965, vol. I, 813rd meeting, pp 268–9. 156 Ibid, p 269. 157 YILC, 1966, vol. II, p 208. 158 M. Ruda, ‘Reservations to Treaties’, RCADI, 1975, vol. 146, p 195. 159 See supra para. 49. 160 YILC, 1966, vol. II, p 208. 161 See the First Report of Sir Humphrey Waldock, supra n 59, para. 82. Also D. W. Greig, ‘Reservations: Equity as a Balancing Factor?’, Australian Yearbook of Int'l L, 1995, p 28, and F. Horn, supra n 33, p 41. 162 See YILC, 2001, vol. II, Part Two, p 180. 163 UNJY, 1976, p 211. In reality, non-confirmation of the reservation does not amount to withdrawal. See infra n 104. See also: M. M. Whiteman, Digest of International Law, 1970, vol. 14, pp 158 and 159. Curiously, the United Nations Secretary-General includes reservations formulated at the time of signature in the publication Multilateral Treaties Deposited with the Secretary-General, regardless of whether they have been confirmed, and even when the State has formulated other reservations at the time it expresses its consent to be bound definitively. See the examples provided in the commentary on guideline 2.2.1 of the ILC Guide to Practice, YILC, 2001, vol. II, Part Two, p 181, n 1107. 164 See F. Horn, supra n 33, p 41; J. Polakiewicz, supra n 105, p 96. 165 See D. W. Greig, supra n 161, p 28; P. H. Imbert, ‘A l'occasion de l'entrée en vigueur de la Convention de Vienne sur le droit des traités’, supra n 130, p 285. 166 See the authors cited by P. H. Imbert, ibid, pp 253–4. 167 Alain Pellet, Fifth Report on Reservations to Treaties, 2000, A/CN.4/508/Add.3, paras 352–8. 168 Ibid. 169 Commentary on guideline 2.2.1 (Formal confirmation of reservations formulated when signing a treaty), YILC, 2001, vol. II, Part Two, p 183, para. 17.

170 On the distinction between treaties in solemn and in simplified form, see: C. Chayet, ‘Les accords en forme simplifiée’, AFDI, 1957, p 1; P. Daillier, M. Forteau, and A. Pellet, supra n 72, pp 157–60; P. F. Smets, La conclusion des accords en forme simplifiée (Brussels: Bruylant, 1969). The distinction is more common in academic literature of the Romano-germanique tradition than that of the common law, which generally refers to executive agreements, a concept that is not identical to that of agreements in simplified form (see G. J. Horvath, ‘The Validity of Executive Agreements’, ÖZöRV, 1979, pp 105–31). However, Sir Ian Sinclair (The Vienna Convention on the Law of Treaties (Manchester: Manchester University Press, 1984), p 41) and I. Brownlie (Principles of Public International Law (7th edn, Oxford: Oxford University Press, 2008), p 611) refer to the concept of ‘agreements’ or ‘treaties in simplified form’. 171 YILC, 2001, vol. II, Part Two, p 183. 172 See guideline 2.2.3 and the commentary, ibid, pp 183–4. 173 Guideline 2.1.2, ‘Form of formal confirmation’. See the Report of the ILC to the General Assembly, YILC, 2002, vol. II, Part Two, pp 29–30. 174 See supra para. 16. 175 For another view—although a mere affirmation, made en passant—see the position taken by Tunkin during the debates in the ILC, YILC, 1965, vol. I, 799th meeting, 10 June 1965, p 167, para. 38. 176 See the commentary on Art. 21(1) supra. 177 Ibid. 178 ‘The Commission did not consider that an objection to a reservation made previously to the latter's confirmation would need to be reiterated after that event’ (ibid, para. 5 of the commentary). 179 In its Advisory Opinion of 28 May 1951, the ICJ described an objection made by a signatory State as a ‘notice’ given to the reserving State (ICJ Reports 1951, p 29). 180 YILC, 1966, vol. II, p 208. That rule was mentioned neither in the draft adopted in 1962, nor in the proposals by Waldock in his Fourth Report (1965), his last report dealing with reservations. 181 ‘[T]he Commission did not consider that an objection to a reservation made previously to the latter's confirmation would need to be reiterated after that event’ (ibid, para. 5 of the commentary). 182 See Official Records of the United Nations Conference on the Law of Treaties, 1st and 2nd sessions (Documents of the Conference), 23rd meeting, 11 April 1968, paras 31 (Hungary —A/CONF.39/C.1/L.138) and 37 (Ceylon—A/CONF.39/C.1/L.151), and 70th meeting, 14 May 1968, para. 26. 183 Nevertheless, no change was made to the text during the drafting of the 1986 Convention (see infra commentary on Art. 23 of the 1986 Convention, para. 23). 184 YILC, 1966, vol. II, p 208. 185 eg Australia and Ecuador did not confirm the objections that they formulated to reservations made upon signature of the 1948 Genocide Convention by Byelorussia, Ukraine, Czechoslovakia, and the Soviet Union when these States confirmed their reservations at the time of ratification. Similarly, Ireland and Portugal did not confirm objections made to a reservation formulated by Turkey upon signature of the Convention on the Rights of the Child when the reservation was confirmed upon ratification. However, Sweden confirmed its objection to a reservation by Qatar to the Convention on the Rights of the Child; Sweden had objected to the reservation made upon signature, and acted again when the reservation was confirmed upon ratification. 186 See the commentary on this provision in this work, supra. 187 P. H. Imbert, ‘A l'occasion de l'entrée en vigueur de la Convention de Vienne sur le droit des traités’, supra n 130, p 150. 188 A/CONF.39/6/Add.1, p 19. 189 See F. Horn, supra n 33, p 137. 190 ICJ Reports 1951, pp 28–9. 191 F. Horn, supra n 33, p 137. 192 See however the ‘observation’ of 26 May 1971, made with respect to a reservation formulated by Syria to the Vienna Convention itself. The United States, which is not a party to the Convention, considered the reservation to be contrary to the object and purpose of the Convention and indicated that it ‘intends, at such time as it may become a party to the Vienna Convention on the Law of Treaties, to reaffirm its objection to the foregoing reservation’. The United States made a similar statement with respect to Tunisia. 193 See ICJ Reports 1951, pp 28–9. 194 See in this sense F. Horn, supra n 33, p 137. 195 See Mimeograph A/CONF.39/6/Add.1, p 18. 196 Commentary on guideline 2.6.12, para. 4, ILC Reports 2008, A/63/10, p 209. 197 See the whole commentary on guideline 2.6.12, ibid, pp 208–13. 198 Withdrawal of an objection is extremely rare. See P. H. Imbert, ‘A l'occasion de l'entrée en vigueur de la Convention de Vienne sur le droit des traités’, supra n 130, p 293; F. Horn, supra n 33, pp 226–8 (with some examples); L. Migliorino, ‘La revoca di riserve e di obiezioni a

riserve’, RDI, 1994, p 328; L. Lijnzaad, supra n 33, p 50. 199 The decision was taken quite late in the proceedings of the Vienna Convention, on 19 May 1969. See Official Records of the United Nations Conference on the Law of Treaties, 1st and 2nd sessions (Documents of the Conference), paras 10–13. See also J. M. Ruda, supra n 158, p 194, for a brief overview of the preparatory work; L. Migliorino, supra n 198, p 319. 200 See the commentary on Art. 22 in this work, paras 7–15. 201 YILC, 1956, vol. II, p 116. 202 YILC, 1962, vol. II, p 61. 203 Ibid, p 62. 204 Ibid, p 181. The 1962 draft did not mention withdrawal of objections. On the effective date of withdrawal of a reservation, see the commentary on Art. 22 in this work, paras 29–42. 205 See the amendments proposed by Austria and Finland (A/CONF.39/C.1/L.4 and Add.1), Hungary (A/CONF.39/C.1/L.178 and A/CONF.39/L.17), and the United States (A/CONF.39/C.1/L.171), reproduced in Official Records of the United Nations Conference on the Law of Treaties, 1st and 2nd sessions, Vienna, 26 March–24 May 1968 and 9 April–22 May 1969, Documents of the Conference. See Documents of the Committee of the Whole, 25th plenary meeting, 16 April 1968, p 138. 206 Explanation of Ms Bokor-Szegó (Hungary), Official Records, ibid, 11th plenary meeting, 30 April 1969, p 36, para. 13. 207 Ibid, p 38, para. 39. 208 Ibid, p 38, para. 41. 209 See the commentary on this provision, infra. 210 See supra para. 102. 211 See infra para. 110. 212 Article 23(1). 213 J. M. Ruda, supra n 158, pp 195–6. 214 The material that follows is largely based on the Seventh Report by Alain Pellet to the ILC on reservations to treaties, A/CN.4/526/Add.2, paras 91–151 (YILC, 2002, vol. II, Part One). They were incorporated in large part into the commentaries adopted by the Commission on its guidelines 2.5.2–2.5.6 of the Guide to Practice (see the reports of the ILC to the General Assembly for 2003, A/58/10, pp 200–26). 215 J. F. Flauss, ‘Note sur le retrait par la France des réserves aux traités internationaux’, AFDI, 1986, pp 857–8; contra: F. Tiberghien, La protection des réfugiés en France (Paris: Economica, 1984), pp 34–5 (cited by Flauss, ibid, p 858, fn 8). 216 J. M. Ruda, supra n 158, p 196. 217 Likewise, the non-confirmation of a reservation upon signature, when a State expresses its consent to be bound, cannot be interpreted as being a withdrawal of the reservation, which may well have been ‘formulated’ but, for lack of formal confirmation, has not been ‘made’ (see supra para. 92). Contra: P. H. Imbert, ‘A l'occasion de l'entrée en vigueur de la Convention de Vienne sur le droit des traités’, supra n 130, p 286. 218 Armed activities on the territory of the Congo (New application: 2002) (Democratic Republic of the Congo v Rwanda), ICJ Reports 2006, 3 February 2006, p 26, para. 42. 219 Ibid. 220 Ibid, p 26, para. 43. 221 See the examples provided by P. H. Imbert, ‘A l'occasion de l'entrée en vigueur de la Convention de Vienne sur le droit des traités’, supra n 130, p 287, fn 21; S. Spiliopoulou Kermaark, ‘Reservation Clauses in Treaties Concluded Within the Council of Europe’, ICLQ, 1999, vol. 48, pp 499–500 or by the ILC in the commentary on draft guideline 2.5.2 in its 2003 report to the General Assembly, A/58/10, p 205, fn 362. 222 See ibid, p 205, para. 10 of the commentary and fn 364. 223 J. F. Flauss, supra n 215, p 861; F. Horn, supra n 33, p 223. A reservation may also be ‘forgotten’ when a State omits to take into account a fundamental change in circumstances (including withdrawal of the reservation itself) with respect to withdrawal of an objection; see F. Horn, ibid and P. H. Imbert, ‘A l'occasion de l'entrée en vigueur de la Convention de Vienne sur le droit des traités’, supra n 130, p 293. 224 eg Art. 55 of the French Constitution and the numerous constitutional provisions in francophone Africa that are inspired by it. 225 PCIJ judgment of 25 May 1926, German interests in Polish Upper Silesia, Series A, no. 7, p 19. 226 For recent examples: ‘Rights of the child’, A/RES/64/146, para. 3; ‘Torture and other cruel, inhuman or degrading treatment or punishment’, A/RES/64/153, para. 25; ‘International Covenants on Human Rights’, A/RES/64/152, para. 8. See also Res. 2000/26 of the Subcommission on the Promotion and Protection of Human Rights of 18 August 2000 (para. 1), the Declaration of the Committee of Ministers of the Council of Europe adopted on 10 December 1998 on the occasion of the fiftieth anniversary of the adoption of the Universal Declaration of Human Rights and, more generally (in that it is not limited to human rights treaties), Parliamentary Assembly of the Council of Europe Recommendation 1223 (1993), para. 7, dated 1 October 1993.

227 eg ‘Concluding observations of the Human Rights Committee, Australia’, CCPR/C/AUS/CO/5, para. 9; ‘Concluding observations of the Human Rights Committee, Sweden’, CCPR/C/SWE/CO/6, para. 6; ‘Concluding observations of the Human Rights Committee, Netherlands’, CCPR/C/NLD/CO/4, para. 4; ‘Concluding observations of the Human Rights Committee, Switzerland’, CCPR/C/CHE/CO/3, para. 4. 228 See the text and the commentary on the guideline in Report to the General Assembly, 2003, A/58/10, pp 207–9. 229 See supra para. 50. 230 Guidelines 2.5.4 (Formulation of the withdrawal of a reservation at the international level) which corresponds to guideline 2.1.3—see supra para. 38, 2.5.5 (Absence of consequences at the international level of the violation of internal rules regarding the withdrawal of reservations), corresponding to guideline 2.1.4—see supra para. 43, and 2.5.6 (Communication of withdrawal of a reservation) which refers to guidelines 2.1.5 and 2.1.6 (see the text and the commentaries on these provisions, A/58/10, pp 209–26). 231 Paragraph 3 of the commentary on draft Art. 51, YILC, 1966, vol. II, p 249. See also the commentary on Art. 35, ibid, pp 231–5. 232 Supra n 73, p 141, para. 211; see also Sir I. Sinclair, supra n 170, p 183. For a more flexible position on denunciation of a treaty, see: Aerial Incident of 10 August 1999 (Pakistan v India), Jurisdiction of the Court, Judgment (2000), ICJ Reports 2000, p 12 at p 25, para. 28. 233 Commentary on guideline 2.5.4, Report to the General Assembly, 2003, A/58/10, pp 209– 18. 234 UNJY, 1974, pp 190–1. 235 Ibid. This is also confirmed by an aide-mémoire of 1 July 1976: ‘On this point, the Secretary-General's practice in some cases has been to accept the withdrawal of reservations simply by notification from the representative of the State concerned to the United Nations’ (UNJY, 1976, p 211, fn 121). The same problem arises with respect to the formulation of reservations themselves. See supra para. 34. 236 ST/LEG/7/Rev.1, p 63, para. 216. 237 European Committee on Legal Co-operation (CDCJ), Reservations to CDCJ Conventions, notes from the Secretariat of the Directorate General of human rights and legal affairs, 30 March 1999, CDCJ (99), p 36. 238 See the examples provided in the commentary on guideline 2.5.6 of the Guide to Practice, ILC Report to the General Assembly, 2003, A/58/10, p 223, fns 420 and 421. 239 For examples, see ibid, fns 422–4. 240 See the text and the commentary on that guideline in ILC report 2008, A/63/10, pp 230– 1. * Professor, Université Paris Ouest, Nanterre–la Défense; Member and former President of the ILC; Associate of the Institute de Droit International; Special Rapporteur on reservations to treaties. ** Professor of human rights law, National University of Ireland, Galway; Director, Irish Centre for Human Rights, Ireland.

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Volume I, Part II Conclusion and Entry into Force of Treaties, s.2 Reservations, Art.23 1986 Vienna Convention Alain Pellet, William Schabas From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Treaties, reservations and declarations — Treaties, ratification

(p. 626) 1986 Vienna Convention Article 23 Procedure regarding reservations 1. A reservation, an express acceptance of a reservation and an objection to a reservation must be formulated in writing and communicated to the contracting States and contracting organizations and other States and international organizations entitled to become parties to the treaty. 2. If formulated when signing the treaty subject to ratification, act of formal confirmation, acceptance or approval, a reservation must be formally confirmed by the reserving State or international organization when expressing its consent to be bound by the treaty. In such a case the reservation shall be considered as having been made on the date of its confirmation. 3. An express acceptance of, or an objection to, a reservation made previously to confirmation of the reservation does not itself require confirmation. 4. The withdrawal of a reservation or of an objection to a reservation must be formulated in writing.

Bibliography See the general bibliography on reservations under Articles 19 and 23 of the 1969 Vienna Convention 1. Article 23 did not raise any particular difficulties during the drafting of the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations. 2. In his Fourth Report, Paul Reuter simply copied the text of Article 23 of the 1969 Vienna Convention, adding only the reference to international organizations.1 Along the same lines, in his Fifth Report the Special Rapporteur proposed a rewording of paragraph 2 so as to ‘take into account the notion of “formal confirmation” introduced in draft article 11, adopted by the International Law Commission at its twenty-seventh session’.2 3. Endorsed by the Commission,3 this approach led to the adoption of a final draft that repeated the 1969 text with which it differed ‘only by [the] mention [in paras 1 and 2] of international organizations in addition to States’4 and the reference to ‘formal confirmation’ together with ratification, acceptance, and approval in paragraph 2. As for paragraphs 3 and 4, they replicate exactly the 1969 text. The draft was adopted without change by the 1986 Vienna Conference. (p. 627) 4. The only issue that led to significant discussion concerned the reference to ‘other States and international organizations entitled to become parties to the treaty’ in Article 23(1). 5. Although the Special Rapporteur had not addressed this in his reports, when the draft was being discussed by the ILC in 1977, several members were concerned that there could be problems in determining the scope of ‘international organizations entitled to become parties to the treaty’. Ushakov noted that: In the case of treaties of a universal character concluded between States and international organizations, such communications would thus have to be made to all existing States. For the same category of treaties and also treaties concluded between international organizations only, it would, however, be more difficult to determine what international organizations were ‘entitled to become parties’. If 10 international organizations were parties to a treaty, to what other international organizations would the communications have to be sent?5 6. Schwebel said ‘an international organization was entitled to become a party to a treaty if there was a link between the basic function for which it had been created and the object and purpose of the treaty’.6 This view was not shared by Reuter. Noting that the expression ‘entitled to become parties to the treaty is not defined in the 1969 Convention’, he said this ‘meant that entitlement to become party to a treaty concluded between States was necessarily determined by the treaty itself’. Treaties concerning all States should be open to all States, and it should be the same for international organizations.7 7. Ushakov, who continued to disagree with the text adopted by the Drafting Committee, made a formal proposal in the plenary session aimed at limiting communications concerning reservations for treaties between States and one or several international organizations8 to ‘contracting organizations’. He failed to win support,9 but it was agreed that his proposal should be mentioned in a footnote in the commentary.10 8. This endorsement of the text of Article 23 of the 1969 Convention by the ILC and by the Conference itself11 confirms its status as a codification of custom.12 *

ALAIN PELLET

 WILLIAM SCHABAS **

Footnotes: 1 YILC, 1975, vol. II, p 38. 2 YILC, 1976, vol. II, Part One, p 146.

3 However, note the fleeting consideration by the Commission in 1977 of a distinct system for reservations depending upon whether they concerned treaties between several international organizations or between States and international organizations, particular Arts 23 and 23bis adopted at first reading, YILC, 1977, vol. II, Part Two, pp 115–16. 4 Commentary on Arts 21, 22, and 23, adopted on second reading, YILC, 1981, vol. II, Part Two, p 140 (see also YILC, 1982, Part Two, p 37). 5 YILC, 1977, vol. I, 1434th meeting, 6 June 1977, p 101, para. 42. 6 Ibid, p 102, para. 48; similarly, Verosta, ibid, para. 45. 7 Ibid, para. 51; similarly, Calle y Calle, ibid, para. 46. 8 But not treaties concluded between several international organizations. 9 Probably out of a questionable concern not to depart from the language of the 1969 Convention, and to make no distinction between the rights of States and those of international organizations. 10 YILC, 1977, 1451st meeting, 1 July 1977, p 194, para. 11. For the footnote, see YILC, 1977, vol. II, Part Two, p 116, fn 485. 11 See Official Records of the United Nations Conference on the Law of Treaties between States and International Organizations and between International Organizations, Vienna, 18 February–21 March 1986, vol. I, Summary Records of the plenary sessions and of meetings of the plenary commission, vol. I, 5th plenary session (18 March 1986), paras 62 and 63. 12 See the commentary on Art. 23 of the 1969 Convention, at paras 7 and 85. * Professor, Université Paris Ouest, Nanterre–La Défense; Member and former President of the ILC; Associate of the Institute de Droit International; Special Rapporteur on reservations to treaties. ** Professor of human rights law, National University of Ireland, Galway; Director, Irish Centre for Human Rights, Ireland.

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Volume I, Part II Conclusion and Entry into Force of Treaties, s.3 Entry Into Force and Provisional Application of Treaties, Art.24 1969 Vienna Convention Anthony Aust From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Treaties, entry into force — Treaties, ratification — Customary international law — Treaties, signature — UNCLOS (UN Convention on the Law of the Sea)

(p. 628) 1969 Vienna Convention Article 24 Entry into force 1. A treaty enters into force in such manner and upon such date as it may provide or as the negotiating States may agree. 2. Failing any such provision or agreement, a treaty enters into force as soon as consent to be bound by the treaty has been established for all the negotiating States. 3. When the consent of a State to be bound by a treaty is established on a date after the treaty has come into force, the treaty enters into force for that State on that date, unless the treaty otherwise provides. 4. The provisions of a treaty regulating the authentication of its text, the establishment of the consent of States to be bound by the treaty, the manner or date of its entry into force, reservations, the functions of the depositary and other matters arising necessarily before the entry into force of the treaty apply from the time of the adoption of its text. A. General characteristics 629 B. Paragraphs 1, 2, and 3 630 Express provisions 630 Amendment treaties 633 No provision or agreement on entry into force 634 Date of entry in force 634 Ratification after the treaty has entered into force 635 Who determines the date of entry into force? 635 Time of entry into force 636 Date from which the treaty speaks 636 Effect of withdrawal of an instrument or extinction of a State 636 Reservations attached to instruments 637 C. Paragraph 4 637

Bibliography Aust, A., Modern Treaty Law and Practice (2nd edn, Cambridge: Cambridge University Press, 2007) Blix, Hans and Emerson, Jirina H. (eds), The Treaty Maker's Handbook (New York: Oceana, 1973) McNair, A., Law of Treaties (2nd edn, Oxford: Oxford University Press, 1961) Sinclair, I., The Vienna Convention on the Law of Treaties (Manchester: Manchester University Press, 1984)

(p. 629) A. General characteristics 1. ‘The treaty becomes international law after 40 countries have ratified [the treaty].’1 This statement in a serious British newspaper shows the general lack of knowledge about treaties and treaty procedures. It suggests that all States are bound by a multilateral treaty once it has entered into force. Unfortunately, this is a common misconception, even among some diplomats. When a multilateral treaty has entered into force, it binds only those States which have consented to be bound by it. A treaty is therefore not like national legislation which, once in force, applies to all to whom it is directed. A treaty is much closer to a contract. But, if a multilateral treaty reflects (or comes to reflect) rules of customary international law, a State which is not a party to the treaty can be bound by those rules, though only as customary international law.2

References 2. Whether the treaty enters into force for a State will depend on whether the treaty is already in force, or whether further consents are needed to bring it into force. A State's consent may of course have the effect of bringing the treaty into force if it is the last one needed to do that. 3. Each of the States for which a treaty is in force then becomes a ‘party’.3 Thereafter it should never be referred to by the—uninformative and misleading—term ‘signatory’. In the media, (and all too often even in foreign ministries) it is said that a State is a ‘signatory’ of a treaty, with the implication that it is a party. As will have been evident from the Commentary on Article 11, there are several ways in which consent to be bound can be expressed. Signature is only one way, and is usually subject to ratification. And, even when the signature has been ratified, that does not mean that the treaty has entered into force. Only when it has entered into force would the State then be a ‘party’. ‘Signatory’ is therefore a loose and

misleading term, and should be avoided except when it is abundantly clear that it refers only to the fact that a State has signed, and nothing more. So, to avoid misunderstandings, if one wants to say merely that a State has signed, it is still preferable to say just that, adding, if appropriate, that it is subject to ratification. If a State has ratified, one should say exactly that. When a treaty is in force for a State, including when the treaty enters into force on signature, one should always describe the State as a ‘party’. One also sometimes hears a government minister saying that the State has ‘signed up to’ a treaty. In English, the expression usually means being bound legally, but not always. So, being a loose term, it should be avoided. 4. Article 24, paragraphs 1 to 3 is a prime example of the flexibility of the law of treaties, as expressed in the Vienna Convention 1969. It leaves it to the negotiating States to decide exactly how the treaty will enter into force. Paragraphs 1 and 3 each contain provisions which clearly show that if the negotiating States want to provide otherwise than the rule set out in paragraph 2, they can do so: hence the phrases ‘upon such date as [the treaty] may provide or as the negotiating states may agree’ (para. 1); and ‘unless the treaty otherwise provides’ (para. 3). 5. It must be remembered that Article 24 (as for most of the Articles of the Convention) applies both to bilateral and multilateral treaties. Although most of the problems of (p. 630) determining if and when a treaty has entered into force concern multilateral treaties, sometimes there can even be problems with bilateral treaties. 6. Although there is no need from a strictly legal point of view to include in some treaties when they will enter into force, it has for many years been exceptional not to find an express provision on entry into force in both bilateral and multilateral treaties. Unless there are special circumstances, a treaty which does not have a provision on entry into force is very likely to have been badly drafted.

B. Paragraphs 1, 2, and 3 7. Paragraphs 1, 2, and 3 do not say that much, and so could be easily combined, as follows: Unless the treaty otherwise provides or the negotiating States have otherwise agreed, a treaty enters into force as soon as all the negotiating States have consented to be bound by it. Unless the treaty provides otherwise, when a State consents to be bound by a treaty after it has already entered into force, it enters into force for that State when it consents to be bound by the treaty. So, we will take paragraphs 1, 2, and 3 together, and then deal with paragraph 4.

Express provisions 8. There are various ways in which a treaty specifies how and when it will enter into force. (a) On ratification4 by both (bilateral treaty) or all (multilateral treaty) signatory States. If a multilateral treaty requires ratification by all the negotiating States, entry into force may be expressed to be on, or at a specific time after, the deposit of the last instrument of ratification. The (EU) Europol Convention 1995,5 Article 45(1), provides that: This Convention shall enter into force on the first day of the month following the expiry of a three-month period after the notification [that it has completed its constitutional requirements] by the Member State which, being a member of the European Union on the date of adoption by the Council of the Act drawing up this Convention, is the last to fulfil that formality. This apparently elaborate formula is essential. First, it ensures that the treaty cannot enter into force until all EU member States have consented to be bound. Second, it has the effect of excluding from that calculation any new member State. Since the treaty gives them the right to accede at any time, without the emphasized words entry into force could be delayed for many years if one or more new States join the EU before all the member States at the time of the adoption of the treaty have consented to be bound. Third, without the special formula, the treaty might not enter into force at all if not all new member States were to consent to be bound. Some non-EU treaties fall into this trap.6 An alternative is for the treaty to prohibit accession by new member States until the treaty is in force, or simply not to count their accession for the purpose of entry into force. (p. 631) (b) On ratification (or, occasionally, signature) by a minimum number of the negotiating States (see eg Art. 84(1) of the Vienna Convention 1969 itself). Although it usually requires several ratifications, the lowest number for a treaty, whether bilateral or multilateral, can be two. The four Geneva Conventions of 1949, their Additional Protocols of 1977,7 and other treaties on international humanitarian law, require only two ratifications to enter into force. Although the treaty will at first bind only the two States, this reflects the nature of such treaties, the purpose of which is to protect military personnel of the parties to a conflict and civilians. A humanitarian law treaty therefore creates, in effect, a network of bilateral treaties between its parties. But for most multilateral treaties, the number for entry into force is rather larger, sometimes much more than the 35 needed to bring the Vienna Convention 1969 into force. The UN Convention on the Law of the Sea 1982 (UNCLOS) needed 60 ratifications, as did the International Criminal Court Statute 1998.8 A large number is usually chosen to ensure that the treaty has received a broad measure of acceptance before it enters into force. This will be important if it requires parties to make significant financial contributions to a new international organization. In the case of UNCLOS, this aim was not realized because the industrialized States did not ratify until after entry into force, and then only after UNCLOS had, in effect, been amended by the 1994 Implementation Agreement.9 The 1984 Protocol 10

amending the Chicago Convention 194410 required no less than 102 ratifications, and so, not surprisingly, did not enter into force until 1998. Certain treaties to which international organizations are parties, in particular regional economic integration organizations, such as the European Union, provide that, in addition to its member States, the organization can become a party in its own right, except that its instrument of ratification shall not be counted in addition to those deposited by its member States.11 (c) Conditional on the ratification (or, occasionally, signature) of certain States specified by number, name, or category. The Nuclear Non-Proliferation Treaty 1968 provided for entry into force after ratification by 40 signatory States, including ratification by the three depositary States: the Soviet Union, the United Kingdom, and the United States.12 The entry into force of the Long-Range Transboundary Air Pollution Convention (EMEP) Protocol 1984 required ratification by 19 States and organizations within the geographical scope of the Protocol which, being Europe, meant that the instruments deposited by Canada and the United States before the entry into force of the Protocol did not count for that purpose.13 The Comprehensive Nuclear-Test-Ban Treaty 1996 cannot (p. 632) enter into force until all 44 States named in Annex 2 to the Treaty have ratified.14 Article 27(3) of the EU Mutual Assistance in Criminal Matters Convention 200015 provides that the Convention shall enter into force after eight States, which were EU member States at the time of adoption of the Convention, have consented to be bound. (d) As in (b) or (c) supra, the minimum number of States or organizations must also fulfil other conditions. These are often financial, economic, or scientific. They are designed to ensure that the treaty does not enter into force until the States which have a significant interest in the subject matter have ratified or, as in the case of commodity agreements, there is a balance between producing and consuming States. Article 10(1)(b) of the EMEP (see (c) supra) imposed a further condition for entry into force: that the aggregate of the UN assessment rates for the European States which ratify had to exceed 40 per cent. The Montreal Protocol on Substances that Deplete the Ozone Layer 1987 had a similar provision, entry into force being dependent on 11 ratifications ‘representing at least two-thirds of the 1986 estimated global consumption of the controlled substances [ie CFCs]’.16 Since the Protocol did not define ‘estimated global consumption’, the UN Secretary-General, as depositary, notified the entry into force of the Protocol only after having obtained confirmation, in the form of data provided by the States concerned, that the necessary conditions for entry into force had been met.17 The Kyoto Protocol 1997 could enter into force only when it had received 55 ratifications, including the parties listed in Annex I who accounted in total for at least 55 per cent of the total carbon dioxide emissions for 1990. In practice, this required either Russia or the United States to ratify, which Russia did in 2004, the Protocol entering into force the following year. (e) On the exchange of instruments of ratification (bilateral treaty). (f) On notification by each signatory State to the other (or others) of the completion of its constitutional requirements. This formula can be used even if the other State (or some of the other States) does not have to satisfy any such requirements, in which case the notification is a mere formality. The notification is usually by third-person diplomatic note. Again, this is more common for bilateral treaties or multilateral treaties which are between only a few States. (g) In the case of a treaty constituted by an exchange of notes, on the date of the reply note, though a further stage (such here supra) is frequently added. (h) As here supra, but on a date earlier or later than that of the reply note. (i) On a date specified in the treaty. The parties are free to specify a date later than that of signature, or even for the treaty to operate retrospectively. Because of the difficulties in getting multilateral treaties ratified, it is unusual for them to specify a date for entry into force. Inserting a specific date may serve a political purpose by encouraging States—or, perhaps more to the point, their parliaments—to meet the deadline. Such a provision is therefore usually subject to a proviso. Article 16 of the Montreal Protocol on Substances that Deplete the Ozone Layer 1987 provided that it would enter into force on 1 January 1989, but only if by then it had been ratified by 11 States or regional economic integration (p. 633) organizations, and certain other conditions had been satisfied.18 Article 5 of the Poland-United Kingdom Prepayment of Certain Obligations by Poland Agreement 200519 is unclear as to its meaning or effect: this Agreement shall enter into force on the day of signing, in line with the laws applicable to each of the parties. (j) On a date to be agreed. The Lockerbie Agreement 1998 (Netherlands–United Kingdom) on a Scottish trial in the Netherlands for those accused of the Lockerbie outrage, provided that it would enter force on a date to be agreed.20 (k) On a date later than the treaty envisages. Paragraph 19(a) of the International Nickel Study Group Terms of Reference 1986 provided that the treaty would enter into force once at least 15 States, which in total account for over 50 per cent of the world trade in nickel, had consented to be bound. But sub-paragraph (b) provided that if the treaty had not entered into force by 20 September 1986, those who had consented would meet to decide whether or not the treaty should enter into force between them. It eventually entered into force on 23 May 1990.21 (l) On signature only by all the negotiating States. This is common for bilateral treaties when they do not have to be approved by parliaments, and is sometimes found in treaties between a few States (plurilateral treaties) even when the subject is of major importance, such as the Dayton Agreement 199522 or the London Agreement 1945, which established the Nuremberg Tribunal.23

References

Amendment treaties 9. There can be other, even more complex, entry into force provisions, especially for amendment treaties. Most careful drafting is needed when it is desired that, before the amendment treaty enters into force, all the parties to the original treaty are bound by the amendment treaty. Article 35 of the 1998 Protocol amending the Council of Europe Transfrontier Television Convention 198924 gets it right, albeit tortuously and, even then, not quite: 1. This Protocol shall enter into force on the first day of the month following the date on which the last of the parties to the [1989] Convention has deposited its instrument of acceptance.…[This is not limited to the parties as at the time of adoption of the amending treaty.] 2. However, this Protocol shall enter into force following the expiry of a period of two years after the date on which it has been opened to acceptance, unless a Party to the Convention has notified…an objection to its entry into force. The right to make an objection shall be reserved to those States or the European Community which expressed their consent to be bound by the Convention prior to the expiry of a period of three months after the opening for acceptance of this Protocol. (p. 634) 3. Should such an objection be notified, the Protocol shall enter into force on the first day of the month following the date on which the Party to the Convention which has notified the objection has deposited its instrument of acceptance. Article 35 of that Convention provides that it shall enter into force once all the parties to the Convention have so accepted. But this is followed by a proviso that the Protocol shall nevertheless enter into force in two years (ie tacit acceptance),25 unless a party to the Convention has formally objected to this. The right to object is limited to those parties to the Convention which consent to be bound by it before the expiry of three months from when the Protocol was opened for acceptance. This restriction to existing parties to the Convention is to prevent a State which later consents to be bound by the Convention from objecting to the entry into force of the Protocol. But, if a valid objection is notified, the Protocol will not enter into force until the objecting State accepts the Protocol. Luckily, there were none.

No provision or agreement on entry into force 10. If the treaty has no express provision on entry into force, and there is no other agreement about it between the negotiating States, the treaty will enter into force as soon as all those States have consented to be bound (Art. 24(2)). The Iraq–United Nations Memorandum of Understanding 1996 (which is, despite its name, a treaty) had no provision for ratification or entry into force.26 Entry into force may be implicit. No express provisions were needed in the Norway–United Kingdom Brent Spar Agreement 1995,27 concerning the disposal of the Brent Spar offshore installation, since it contains only assurances by the United Kingdom about the eventual disposal of the installation.

References

Date of entry into force 11. In the case of multilateral treaties it is usual to provide that the date of entry into force will be a specified number of days, weeks, or months following the deposit of the last instrument of ratification which is needed to bring the treaty into force (see eg Art. 84(1) of the Vienna Convention 1969 itself). The period may be of any length, but the normal range is from 30 days to 12 months. This breathing space gives the depositary time to notify the contracting States of the forthcoming entry into force. In addition, contracting States may need time to bring into effect implementing legislation which they have previously enacted (or even to enact it). It also allows time for other necessary preparations. 12. One must be careful in calculating the date of entry into force. If the period is 30 days following deposit of the last necessary instrument, the time runs from the day after the date of deposit. If that date is 14 January, the treaty will enter into force on 13 February. If the period is one month, it will run from the date of deposit. If that is 14 January, the treaty will enter into force on 14 February, the same date one month later. When there is no corresponding date (eg no ‘30 February’ or ‘31 April’), the treaty will enter into force on the last day of that month, that being the nearest corresponding day.28 (p. 635) 13. Another formula provides that the treaty shall enter into force ‘on the first day of the second [or third] month’ following the deposit of the last instrument of ratification needed for entry into force. The Council of Europe Protection of National Minorities Framework Convention 1995 provides that it: shall enter into force on the first day of the month following the expiration of a period of three months after the date on which twelve Member States of the Council of Europe have expressed their consent to be bound.29 This apparently convoluted way of saying that the treaty will enter into force after three complete calendar months have passed, nevertheless has the merit of certainty, leaving no doubt as to precisely when the treaty will enter into force.

References 14. In the case of a bilateral treaty, it is good practice to confirm the date in the Certificate of Exchange of Instruments of Ratification. Once instruments have been exchanged, it is not usual to provide for a further delay before entry into force.

Ratification after the treaty has entered into force 15. When a State ratifies after the entry into force of the treaty, it will enter into force for that State on the date of deposit of its instrument, unless the treaty otherwise provides (Art. 24(3)). A multilateral treaty will usually provide that it will enter into force for such a State once a specified period has elapsed following deposit. This is often the same period as for the original entry into force of the treaty, and gives time for the depositary to notify the existing parties. Particular care must be taken in drafting the clause; and there is a surprising range of them. One should try to avoid a formula such as: The present Convention shall enter into force three months after the date on which [20] States have deposited their instruments of ratification. For each State which thereafter [or subsequently] ratifies, the present Convention shall come into force three months after deposit of its instrument of ratification. In this example it is not clear if ‘thereafter’ (or ‘subsequently’) refers to (a) the date of fulfilment of the conditions for entry into force (ie the date when the minimum number of instruments has been received), or (b) the actual date of entry into force, which is usually later. It has been the consistent practice of the UN Secretary-General, when acting as depositary, to interpret such terms in accordance with alternative (a), and most treaties now adopt the formula in Article 84(2) of the Vienna Convention 1969:30 (1) The present Convention shall enter into force on the thirtieth day following the date of deposit of the thirty-fifth instrument of ratification or accession. (2) For each State ratifying or acceding to the Convention after the deposit of the thirty-fifth instrument of ratification or accession, the Convention shall enter into force on the thirtieth day after deposit by such State of its instrument of ratification or accession. Similar problems arise with termination clauses.

Who determines the date of entry into force? 16. In the case of a multilateral treaty, the date on which it will enter into force is normally determined by the depositary, who will notify the parties and other States concerned (p. 636) by a formal note. If there are doubts whether the conditions for entry into force have been met, the depositary may have to consult the interested States.

Time of entry into force 17. On occasion, it may even be necessary to determine the precise time on a given day that the treaty will enter into force.31 In the overwhelming majority of cases a treaty is expressed to enter into force after a certain number of days have elapsed following the deposit of the two instruments of ratifications (bilateral) or of a specified number of instruments (multilateral). Then there can be no doubt that the treaty will enter into force at the first moment of the day (a well-known domestic law principle) so identified. There could, however be a problem with a bilateral treaty if, instead of providing that it shall enter into force on the ‘date’ of the exchange of instruments of ratification, it provides that it shall enter into force on their ‘exchange’, or provisions having similar effect.32 When the problem can be foreseen it is therefore preferable to cover the point in the treaty. This is especially so when—as is often the case with bilateral treaties—the parties are located in different time zones. Very similar, and very practical, problems can arise with termination clauses.

Date from which the treaty speaks 18. When drafting a treaty which provides, for example, for the transfer of rights, it is important to make clear if the rights are those existing at the date of adoption, signature, or entry into force, or at some other date.33

Effect of withdrawal of an instrument or extinction of a State 19. In calculating whether the minimum number of instruments of ratification needed to bring a treaty into force have been deposited, the depositary should discount any which have been withdrawn. But if the instrument is withdrawn after deposit of the last instrument needed to bring the treaty into force, it appears to have been the practice of the UN Secretary-General not to regard the withdrawal as affecting satisfaction of the conditions for entry into force. Thus, if, say, 40 ratifications are needed for entry into force, the conditions would be satisfied even if one of the 40 is then withdrawn before entry into force.34 This may, however, be too literal an approach, and consequently not a correct application of the essential premise that all conditions for entry into force must have been satisfied. One of the conditions, albeit implicit, must surely be that on entry into force there will still be the minimum number of parties, ie 40, not 39. The same considerations apply if a ratifying State should cease to exist, as does happen.

(p. 637) Reservations attached to instruments 20. The depositary does not necessarily have to disregard any ratification containing reservations to which other contracting States may have objected. In the case of the Vienna Convention 1969 itself, several of the first 35 instruments of ratification needed for it to enter into force contained reservations to which objections had been lodged. The UN SecretaryGeneral, as depositary, consulted the contracting States, stating his assumption that, for the purpose of calculating the date of entry into force, account should be taken of all 35 instruments. No one objected.35

C. Paragraph 4 21. As from the moment the text is adopted, the most obvious matters which have to be attended to so that the treaty can enter into force will apply from the time of the adoption of the text of the treaty. The matters are authentication of the text, establishment of the consent of States to be bound by the treaty, the manner or date of the entry into force of the treaty, reservations, the functions of the depositary, and other matters necessarily arising before entry into force of the treaty. Other rights and obligations will also arise during the period before the treaty enters into force if the Convention or the treaty in question so provides, such as in relation to a preparatory commission (see the Commentary on Art. 25). *

ANTHONY AUST

Footnotes: 1 The Times, London, 26 June 1998, on the entry into force of the Landmines Convention 1997. 2 See A. Aust, Modern Treaty Law and Practice (2nd edn, Cambridge: Cambridge University Press, 2007), pp 11–14 and 260. For the position of third States, see the commentaries on Arts 34–8 in this work. 3 See the commentary on Art. 2(1)(g). 4 Or analogous procedure such as acceptance, approval, accession, or any other agreed means such as the notification of the completion of constitutional requirements. For simplicity, we will refer simply to ratification. 5 2156 UNTS 200. 6 See Art. 4 of Protocol No. 11 to the European Convention on Human Rights (2061 UNTS 12, No. 2889); ILM, 1994, p 960. Similar problems can occur with amendments to treaties. 7 Geneva Conventions: 75 UNTS 3; Additional Protocols: 1125 UNTS 3; ILM, 1977 p 1391. 8 2187 UNTS 91; ILM, 1998, p 998. 9 1836 UNTS 42; ILM, 1994, p 1313. 10 Protocol Relating to an Amendment to the Convention on International Civil Aviation [Art. 3bis]. The subject of this Protocol is the non-use of weapons against civil aircraft in flight. Signed at Montreal on 10 May 1984, ILM, 1984, p 705; UKTS (1999) 68. 11 See Art. 305(1)(f) of, and Art. 8 of Annex IX to, UNCLOS (1833 UNTS 397; ILM, 1982, p 1261); and Art. XI(2) of the Compliance Agreement 1993 (2221 UNTS 120; ILM, 1994, p 968). Nor can the organization and its member States usually have more votes in aggregate than the total votes of the member States. 12 729 UNTS 161; ILM, 1968, p 809. See also Art. XIV(3) of the Outer Space Treaty 1967 (610 UNTS 205; ILM, 1967, p 386). 13 1480 UNTS 216 (No. 25247); ILM, 1988, p 701; see Art. 10(1)(a). See also Art. 6 of the Implementation Agreement 1994 (1836 UNTS; ILM, 1994, p 1313). 14 ILM, 1996, p 1443. So far, 35 of the 44 have ratified. The nine who have not yet ratified are China, Egypt, India, Indonesia, Iran, Israel, North Korea, Pakistan, and the United States. 15 OJ 2000 No. C 197/3. 16 1522 UNTS; ILM, 1987, p 1550. The deadline was met. 17 See also Art. 15 of the Bribery Convention 1997 (ILM, 1998, p 1). See further examples in Summary of the Practice of the Secretary-General as Depositary of Multilateral Treaties, available at: http://untreaty.un.org/ENGLISH/Summary.asp, paras 226–32. 18 1522 UNTS 3; ILM, 1987, p 1550. See also the Maastricht Treaty 1992, Title VII, Art. R (UKTS (1994) 12). 19 UKTS (2005) 17. 20 2062 UNTS 82; ILM, 1999, p 926; UN Doc. S/1995/795. It entered into force on 8 January 1999. 21 See 1566 UNTS 29. The treaty is strangely worded, but the text supra translates it into more normal treaty language. 22 ILM, 1996, p 75. See also Art. 2(3) of the EU Mutual Assistance in Criminal Matters Convention 2000 (OJ 2000 No. C 197/3). 23 82 UNTS 279. 24 2206 UNTS 312; ILM, 1989, p 862; ETS 171. 25 The Council of Europe has used this tacit acceptance procedure before: see the Explanatory Report on Art. 35 at: http://conventions.coe.int/Treaty/en/Reports/Html/171.htm.

26 1926 UNTS 10; ILM, 1996, p 1097. 27 UKTS (1995) 65; UNTS No. 35102, but no text. For the termination of the treaty, see UKTS (1998) 46. 28 UN Depositary Practice, supra n 26, para. 236. 29 ILM, 1995, p 353; ETS 157. 30 UN Depositary Practice, supra n 26, paras 244–5. 31 A. McNair, Law of Treaties (2nd edn, Oxford: Oxford University Press, 1961), pp. 198–9, cites a perceived time problem with the Treaty of Versailles 1919 (225 CTS 188) 4. But its final clauses provided for it to enter into force ‘[f]rom the date of [the] first procès-verbal’ recording the deposit of certain ratifications. So, the exact time of the signing of the procès-verbal was not relevant. 32 See Hans Blix and Jirinia H. Emerson (eds), The Treaty Maker's Handbook (New York: Oceana, 1973), pp 75–82, examples 2, 8, 9, 12–14, 23, and 26. 33 See McNair, supra n 31, pp 204–5. 34 UN Depositary Practice, supra n 26, para. 159. 35 I. Sinclair, The Vienna Convention on the Law of Treaties (Manchester: Manchester University Press, 1984), p 45. * Consultant on international law to law firms, governments, and international organizations.

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Volume I, Part II Conclusion and Entry into Force of Treaties, s.3 Entry Into Force and Provisional Application of Treaties, Art.24 1986 Vienna Convention Anthony Aust From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Treaties, entry into force — Treaties, ratification

(p. 638) 1986 Vienna Convention Article 24 Entry into force 1. A treaty enters into force in such manner and upon such date as it may provide or as the negotiating States and negotiating organizations or, as the case may be, the negotiating organizations may agree. 2. Failing any such provision or agreement, a treaty enters into force as soon as consent to be bound by the treaty has been established for all the negotiating States and negotiating organizations or, as the case may be, all the negotiating organizations. 3. When the consent of a State or an international organization to be bound by a treaty is established on a date after the treaty has come into force, the treaty enters into force for that State or that organization on that date, unless the treaty otherwise provides. 4. The provisions of a treaty regulating the authentication of its text, the establishment of the consent of States to be bound by the treaty, the manner or date of its entry into force, reservations, the functions of the depositary and other matters arising necessarily before the entry into force of the treaty apply from the time of the adoption of its text.

Bibliography Watts, A., The International Law Commission 1949–1998 (Oxford: Oxford University Press, 1999) 1. For treaties between States and international organizations, or between international organizations, only the Vienna Convention 1986 can apply, though this is of little practical importance given that the 1986 Convention follows the Vienna Convention 1969 very closely by replicating its principles and rules. 2. So there is nothing more useful one can say about Article 24 of the 1986 Convention except that (as the International Law Commission said when it presented the UN General Assembly with final draft Articles for the 1986 Convention) the 1986 Convention differs only from the corresponding Articles of the 1969 Convention as is necessary to cater for the distinction between treaties between States and treaties between States and international organizations or treaties between international organizations.1 *

ANTHONY AUST

Footnotes: 1 For the ILC's draft Art. 24, see A. Watts, The International Law Commission 1949–1998 (Oxford: Oxford University Press, 1999), pp 869–70. * Consultant on international law to law firms, governments, and international organizations.

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Volume I, Part II Conclusion and Entry into Force of Treaties, s.3 Entry Into Force and Provisional Application of Treaties, Art.25 1969 Vienna Convention Denise Mathy From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Treaties, provisional application — Customary international law — Treaties, entry into force — Treaties, ratification — Codification — Good faith — Pacta sunt servanda

(p. 639) 1969 Vienna Convention Article 25 Provisional application 1. A treaty or a part of a treaty is applied provisionally pending its entry into force if (a) the treaty itself so provides; or (b) the negotiating States have in some other manner so agreed. 2. Unless the treaty otherwise provides or the negotiating States have otherwise agreed, the provisional application of a treaty or a part of a treaty with respect to a State shall be terminated if that State notifies the other States between which the treaty is being applied provisionally of its intention not to become a party to the treaty. A. General characteristics 640 Object and purpose of the Article 640 Customary status 640 Appropriateness of the presence of the Article and its usefulness 641 B. Provisional application and internal law 643 Contradiction 643 Remedies 645 Internal law paralyses a provisional application 645 C. Terminology 646 Provisional entry into force 647 Provisional application or application on a provisional basis 648 D. The agreement on provisional application (negotium and instrumentum) 649 Provisional application is prescribed by the treaty 650 Provisional application is prescribed by a separate agreement 650 Provisional application arises ‘in some other manner’ 651 E. Legal effects of the agreement on provisional application 652 Obligation to perform in good faith the engagement providingfor the provisional application (pacta sunt servanda) 652 Termination of the engagement on provisional application 652

Bibliography Do Nascimento E Silva, G. E., ‘Le facteur temps et les traités’, RCADI, 1977, vol. 154, pp 229–35 Garcia Fernandez, J., La aplicación provisional de los tratados, La celebracion de tratados internacionales por España: problemas actuales (Madrid : Ministerio de asuntos exteriores, 1990), pp 95–101 Krenzler, Die vorläufige Awendung völkerrechtlicher Verträge (Heidelberg: 1963), p 143 Neri, S., ‘Sull'applicazione provisoria dei trattati internazionali non ancora ratificati’, Revue Suisse de Propriété Intellectuelle, October–December 1962, vol. 24(4), pp 588–91 Picone, P., L'applicazione in via provisoria degli accordi internazionali (Naples: Eugenio Jovene, 1973), p 238 (p. 640) Rogoff, Martin A. and Gauditz, Barbara E., ‘The Provisional Application of International Agreements’, Maine L Rev, 1987, vol. 29, pp 29, 43–51 Rosenne, S., The Law of Treaties (Leiden: Sijthoff, 1970), p 443; ‘Legislative history of Article 25’, pp 192–5 Vignes, D., ‘Une notion ambiguë: la mise en application provisoire des traités’, AFDI, 1972, pp 181–99 —— ‘The Law of Treaties, Provisional Application, Contemporary practice of the United States’, AJIL, 1980, vol. 74(4) (October), pp 931–3

A. General characteristics Object and purpose of the Article 1. Article 25 of the Vienna Convention on the Law of Treaties prescribes the modes of application of all or of certain substantive provisions of a treaty prior to its entry into force, as well as the modes in which a provisional application may be terminated. The same provision is found in Article 25 of the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations of 20 March 1986.1 The purpose of a provisional application is to give immediate effect to all or certain substantive

provisions of a treaty without waiting for the fulfilment of the formal requirements for its entry into force. The last Rapporteur of the ILC on the law of treaties commented on his draft Article 20, Mode and Date of Entry into Force, paragraph 6 of which provided that a treaty may specify that it shall come into force provisionally, pending its full entry into force ‘when the required ratifications or acceptances have taken place’.2 He recognized in his comment that ‘the device of provisional entry into force [was] being used merely because there was no expectation of Parliamentary approval for ratification within due time’.3

Customary status 2. The Article was introduced into the Vienna Convention to recognize the existence of an extended practice.4 Nothing indicates that, at the time of codification, this practice was supported by an opinio juris. In addition, reference to custom was never brought up either at the ILC or at the Conference of Vienna.5 Generally speaking, the ILC considered that its work on the law of treaties constituted both codification and progressive development and that it was difficult to determine what fell into each category.6 P. Reuter did not cite Article 25 when he drew up a list of the Articles of the Vienna Convention (p. 641) which could be considered to be codifications of custom.7 It is nevertheless probable that the first part of Article 25 resulted in a crystallization of custom. 3. In contrast, the second part of the Article, concerning the manner in which unilaterally to terminate a provisional application,8 could constitute a rule of progressive development.9 Thus, the Article as a whole codifies a rather insolent practice vis-à-vis the law of treaties and it is for this reason that the question of its introduction into the Convention was largely debated.

Appropriateness of the presence of the Article and its usefulness 4. The development and refinement of Article 25 by the ILC and then by the Conference of Vienna was laborious. The Special Rapporteur deplored the distrust expressed vis-à-vis the provisional entry into force of treaties.10 Several questions were grappled with, such as the appropriateness of introducing such an Article, the terminology to be adopted—provisional entry into force or provisional application—or even the legal status of such a situation and its relation with the constitutional law of States. No one denied that the practice of provisional entry into force existed, but its codification was troubling particularly because its nature and legal consequences were not definite.11 The Rapporteur recognized that ‘the resulting situation may be anomalous and not easy to define with precision …’.12 The draft Article was troubling owing to its consequences from a constitutional perspective13 although it was useful to obtain ratification.14 The Expert Consultant emphasized that the majority of constitutions, ‘even those with very strict provisions’, recognized that procedure.15 In addition, provisional application gave greater flexibility to international law,16 by offering ‘a useful intermediate position between a treaty in simplified form and a (p. 642) treaty which entered into force only after all requirements as to ratification had been satisfied’.17 5. The ILC insisted on maintaining the Article because, in its own words, the practice ‘require[d] notice in the draft Articles’.18 Failing to retain it in the Convention may have led some to infer that such well-established practice did not exist.19 At the Conference of Vienna, that practice was accepted20 and obtained a non-negligible number of votes in favour.21 The States which had explicitly stated the existence of constitutional objections to the provisional application of treaties abstained, but did not vote against the Article.22 They were able to present reservations at the time of signature or ratification of the Convention.23 6. It was difficult to ignore a frequent practice which was used in treaty arrangements of the most varied nature. One must recall the success of provisional application within important codification conventions;24 within basic commodities conventions; or within a great number of both bilateral and multilateral conventions dealing with a wide range of subject matter, some post-dating25 and some ante-dating26 the Vienna Convention.

References (p. 643) 7. The usefulness of Article 25 was stressed;27 it is based on urgency,28 sometimes backed by other reasons, mainly the concern not to create any legal gaps.29 For this reason, whenever a future agreement must be adapted to a new situation of a functional international organization, either the new or old provisions are applied provisionally pending the entry into force of the treaty in order to allow for a continuity of functions. Provisional application may be used to amend the provisions of a prior convention without having resort to the amendment procedure.30 It enables useful measures to be taken which31 the negotiating States agree to apply provisionally. It is particularly useful when constitutional difficulties delay ratification.32 The response to the urgency by way of the provisional application of treaty provisions is not, however, free from the risk of clashes with domestic law and, especially, with constitutional law.

References

B. Provisional application and internal law Contradiction 8. One of the reasons for the reluctance to introduce the practice of provisional application

into the Convention codifying the law of treaties lay in the contradiction arising from such practice. It opposed treaty provisions regarding the mode of expression of consent to be bound, which meet internal law requirements; and the agreement on provisional application, which does not. It has been said that the practice bypasses internal law regimes33 or that it alters the constitutional order.34 While using the terminology ‘provisional entry into force’, the Special Rapporteur observed that: (p. 644) There is a certain anomaly, from the point of view of constitutional law, in dealing with ‘provisional entry into force’ as an ordinary case of ‘entry into force under the terms of a treaty’ which for constitutional reasons has been made subject to ratification or approval.35 Before ratification, the question already arises regarding the extent to which a government or its negotiators have the power, according to their domestic law, to provisionally bind a State.36 Since that application affects constitutional provisions, it may give rise to delicate issues;37 for example, in a country where the constitution precludes the creation of treaty obligations, unless such treaties have first been approved by the legislature, it is possible that: although the government might subsequently decide not to participate in the treaty, the obligations created during the period of provisional application [may] have given rise to legal relations whose validity [is] questionable, and that might lead to objections on the ground of their unconstitutional character.38 Noticeably, the practice of provisional application ‘[is] an awkward [question], because it cut[s] across the dividing line between international law and internal law’.39 However, there are circumstances under which: agreements must be concluded and performed without delay and it is in this manner that constitutional rules as strict as these are impracticable; they are not faithfully respected, but the resulting situation generates painful tensions.40 Despite this uncertain environment, resort to provisional application is frequent.

(p. 645) Remedies 9. States whose domestic law does not in any way enable effect to be given to a treaty before parliamentary approval will avoid any engagements ‘without complying with the procedure prescribed by internal law unless they [are] certain that ratification [will] not give rise to any political difficulty’.41 10. As in practice, the use of provisional application is common, and as it concerns treaties dealing with very diverse subject matters,42 the governments which use it know how to adopt solutions allowing them to avoid any problems with their domestic laws. This is done, for example, by accepting provisions on the provisional application of treaties the subject matter of which need not be submitted to parliamentary control,43 by making sure that new budgetary arrangements are not necessary, even by taking advantage of prior acquiescence, or finally by concluding treaties within the framework of existing legislation44 or ‘to the fullest extent not inconsistent with existing legislation’.45 Therefore, the use each State makes of the practice will depend on the ‘circumstances and upon their internal laws’.46 Eventually, the use of provisional application will not raise any difficulty in international law,47 only in domestic law.

References

Internal law paralyses a provisional application 11. Every treaty is governed by international law (Art. 2). However, the provisions of internal law apply to both the conclusion and performance of treaties. The Vienna Convention (p. 646) on the Law of Treaties considers only in a very restrictive manner violations of that internal law. In truth, the possibility of invoking Articles 46 (violations of internal law regarding competence to conclude treaties) and 47 (authority of a representative to express consent to be bound), concerning the validity of treaties is surrounded by preconditions rendering the implementation of those Articles reasonably impracticable. In addition, a violation of internal law cannot justify a party's failure to perform a treaty (Art. 27). Consequently, the failure to perform an agreement on provisional application owing to a violation of provisions of the internal law of a State is likely to engage its international responsibility. It must be recognized that resort to Article 46 or 47 remains residual because Article 25, paragraph 2 establishes a modality allowing a State to ‘change its decision and terminate the [provisional application] of the treaty’.48 In principle, internal law does not constitute an obstacle to a provisional application which does not deviate too widely from a State's legislative stipulations. 12. In reality, the provisional application of treaties has barely raised any disagreement. That is probably due to the fact that States are cautious not to engage in such agreements unless they are able to perform them or rapidly to obtain the necessary approval for their execution.

C. Terminology 13 A different difficulty which was confronted during the development of the Article concerned terminology. Was it necessary to retain the formulation ‘provisional entry into force’, employed by the different Rapporteurs at the ILC, or should the term ‘provisional application’ have been used? The two expressions clearly emerged in practice. 14. The practice of treaty obligations offers a choice of formulations permitting the

application of all or certain provisions of treaties prior to their entry into force. Although the ILC barely mentioned those other formulations, some are cited infra. They are witness to the concern of States to maintain great flexibility in the means to give immediate effect to provisions of conventions not yet in force. Those formulations are creative.49 Mainly, one encounters expressions such as ‘early implementation’,50 ‘application on a “de facto” basis’,51 ‘application’,52 ‘entry into force at the time of signature subject to ratification’,53 ‘to have provisional effects’ or ‘come into force (p. 647) provisionally’,54 ‘do as if the instruments of ratification had already been exchanged’,55 or even ‘the provisions of the Convention …should be taken into account to the greatest possible extent’.56 These examples are far from encompassing the great variety of such possibilities existing in practice.57 Nevertheless, the most frequently used expressions remain ‘provisional entry into force’, and, above all, ‘provisional application’.

References

Provisional entry into force 15. During the travaux on the law of treaties, all the Special Rapporteurs of the ILC limited themselves to the use of the terms ‘entry into force prior to ratification’ or ‘provisional entry into force’,58 whereas the treaties cited as examples referred to ‘provisional application’. The two Articles presented by the Special Rapporteur used the expression ‘provisional entry into force’,59 but when referring to the right to give notice of termination, they both referred to giving notice of termination of the ‘provisional application’ of the treaty.60 Those two notions cohabitated without any concern for specifying whether the respective legal nature of the situations they generated differed.61 Nevertheless, there was ‘something illogical in a treaty being brought into force provisionally and made subject to the exchange of instruments of ratification in order to have binding force’.62 In 1965, P. Reuter rebelled against the formula ‘provisional entry into force’, as ‘it was quite incorrect, for entry into force was something entirely different from the application of the rules of a treaty’.63 He made a proposal to improve the draft. It would affect the substance by showing the difference in legal status between the provisional application and entry into force of a treaty. Because the expression ‘provisional entry into force’ was a contradiction in terms, it should be replaced by ‘provisional application’. Although it was admitted that provisional application was what occurred in practice, entry into force (p. 648) was a formal legal concept.64 In addition, it was hardly possible to have two entries into force.65 Despite the fact that P. Reuter's suggestion was backed by several members of the ILC,66 the ILC did not follow suit. Nevertheless, the terminological choice of ‘provisional application’ seems more respectful of notions codified into the Convention on the Law of Treaties; particularly, that of entry into force. 16. For the Special Rapporteur, the choice of terminology was simply a doctrinal question because the law of treaties did not recognize ‘a distinct institution of treaty law known as “entry into force” that excluded cases of provisional entry into force’.67 In his view, the expression ‘provisional entry into force’ was the most commonly used and it was therefore desirable to retain it ‘notwithstanding the problems which it undoubtedly raised’,68 mainly owing to its impact on internal law. In legal systems which are prepared to admit the supremacy of international law, the norms of the treaty entering into force prevail over those of internal law, while if the matter concerns solely a provisional application, ‘most legal systems would regard that situation as a practical expedient which did not introduce the rules of international law into internal law’.69 After the intervention of P. Reuter, two possible situations were identified: either the treaty did not enter into force before the notice of ratification or approval but its provisions were applied; or the treaty entered into force at the time of signature, and ratification, if it was exercised, only served to confirm entry into force. Those two formulas could be the object of two Articles.70 17. The Special Rapporteur pointed out another issue regarding terminology. He viewed that it would be more appropriate to speak of ‘temporary’ entry into force because it was a temporal factor which was at issue. However, it was the adjective ‘provisional’, almost always used, which was eventually retained.71 Article 24 (as it was then numbered)—Entry into Force of a Treaty Provisionally—was presented at the Conference after being adopted without either votes against or abstentions.72

Provisional application or application on a provisional basis 18. After P. Reuter's proposal was not retained, it was following the initiative of the United States that the terminological amendment was reintroduced at the Conference. Presented orally and without a commentary by the US representative,73 it was supported by the submission of an amendment74 and eventually largely accepted by the Conference.75(p. 649) At the Conference it was also recalled that it was convenient not to confuse ‘mere application, which was a question of practice, and entry into force, which was a formal legal notion. Mere physical application did not involve entry into force’.76 19. However, although that terminological choice seems well suited to the situation it is supposed to govern, it does not exclude resorting to other formulae. The practice remains inconclusive, as can be seen from an opinion by the Secretariat of the United Nations: ‘[w]e are not fully informed about what provisional application and provisional entry into force mean in the actual practice of commodity organizations’.77 The same vagueness is encountered in the practice of the European Communities.78 This is a regretable situation, considering the effort made by the members of the ILC and by the Conference to analyse and clarify the legal situation being codified. Note must be taken, however, of the preoccupation expressed at the

ILC to strive for an Article which preserved the freedom of States in the drafting of such clauses.79 20. Concerning multilateral treaties, it is possible to find situations subject to entry into force for certain States and provisional application for others. Consequently, the legal link with regard to the treaty may be final for States which have been able to become a party to it, while other States may still remain at the stage of provisional application.80

D. The agreement on provisional application (negotium and instrumentum) 21. Whatever the terminology used, and regardless of whether the basic treaty is in force according to its own terms, there is an agreement for the provisional application of the provisions of the treaty and the agreement is in force.81 Article 25 specifies that provisional application may result from the provisions of the treaty or in any other manner as agreed by the negotiating States. In other words, provisional application results from an agreement82 (in the sense of negotium). This agreement may take (p. 650) different forms (instrumentum). It may be prescribed by the treaty,83 it may be the subject of a subsidiary agreement or of an exchange of notes,84 it may also exist in any other form. In every case, it constitutes a distinct agreement.85

Provisional application is prescribed by the treaty 22. When the clause for provisional application is prescribed by the treaty, ‘the States concerned could be said to be parties to an informal understanding on such application’,86 or alternatively, that provisional application is included in a ‘separate commitment’, but incorporated into the treaty.87 It may be conceived that the provision establishing the provisional application necessarily takes effect, as a final clause, before the entry into force of the treaty. Article 24(4) in the two Conventions on the law of treaties enumerates situations relating to the act itself which apply from the time of the adoption of the text of the treaty. The matter of provisional application is not mentioned in the clause. Nevertheless, the Article remains open because ‘other matters arising necessarily before the entry into force of the treaty apply from the adoption of its text’.88 Although the matter concerns the substance of the treaty, a provision for provisional application is not in itself a substantive norm, but one of procedure which must necessarily be applied before the entry into force of the treaty. The comparison cannot be taken any further. The agreement for provisional application, once concluded, is obligatory unless a party notifies that it does not intend to become a party to the treaty (Art. 25, para. 2). Such is not the case with final clauses because a signatory party is not under an obligation, unless otherwise provided, to make the treaty enter into force; that is, it does not need to notify its decision and it does not need to apply the substantive provisions of the treaty.

Provisional application is prescribed by a separate agreement 23. The provisional application of a treaty may be prescribed by a separate agreement. It is referred to as an agreement in simplified form:89 ‘the procedure in Article 22 took place (p. 651) by virtue of …a separate agreement, often a treaty in simplified form’,90 such as a protocol, an exchange of letters, ‘parallel undertakings’ between the executives of the contracting States within the limits of their respective competences,91 or even an early decision.92

Provisional application arises ‘in some other manner’ 24. According to the text of Article 25, provisional application may be agreed ‘in some other manner’. By using this language, the Drafting Committee wanted to emphasize that ‘the agreement was not necessarily prescribed by the provisions of the treaty’.93 That formulation leaves room for a broad range of options regarding the manner in which to express agreement to the provisional application of a treaty. It could occur after the negotiation of the treaty;94 it could even be implicit.95 Sometimes, without knowledge of the existence of a prior agreement, the note accompanying the publication of a treaty in the United Nations Treaty Series indicates that the convention was applied provisionally.96 Acquiescence does not seem a neglected practice either.97 Finally, unilateral declaration by every State is also a conceivable method to agree on a provisional application.98 The high degree of flexibility is aimed at allowing States the maximum freedom to express agreement on the provisional application of a treaty.99 Whether the clause on provisional application is included in a treaty, whether it is set out in a separate agreement, or whether it results from conduct, it is always the subject of an informal, international agreement the legal effects of which are those of any other international agreement.100

(p. 652) E. Legal effects of the agreement on provisional application 25. Provided that it is valid, the agreement on provisional application produces, as any other contractual engagement, legal effects at the international level. Thus, the agreement triggers the coming into play of the rule pacta sunt servanda and the prescribed modalities to terminate it.

Obligation to perform in good faith the engagement providing for the

provisional application (pacta sunt servanda) 26. The codification of the practice of provisional application conveniently recognized its legal character,101 as according to some, those provisions ‘were descriptive of an existing practice rather than expressive of a rule of law’,102 or in addition, that ‘the legal position in provisional entry into force [was] not, however, easy to formulate …’.103 In contrast, the ILC sustained that ‘there [was] no doubt that such clauses [had] legal effect and [brought] the treaty into force on a provisional basis’.104 Thus, provided that it is valid, the agreement on provisional application produces the same legal effects as any international agreement and as such, it is subject to the rule pacta sunt servanda.105 27. Because the treaty is not in force, would it not be more suitable to refer to the rule of good faith, which imposes the obligation not to deprive a treaty of its object and purpose before its entry into force?106 That said, it is not appropriate to invoke good faith. The purpose of provisional application is to apply, perform, or implement the provisions of the treaty. It does not suffice for a party to refrain from doing anything which would deprive the treaty of its object and purpose, because the agreement on provisional application is nevertheless in force and, consequently, subject to the rule pacta sunt servanda. It was thus logical for the Canadian Legal Bureau to consider that if there had been an agreement on provisional application, its violation by a party could be alleged.107 Such resort to legal action remains marginal because rather than permitting the engagement of its responsibility, a defaulting State could have recourse to the prescribed modes to terminate the provisional application on the basis of Article 25(2).

Termination of the engagement on provisional application 28. A provisional application terminates with the entry into force of a treaty. Article 25(1) actually stipulates that the treaty ‘is applied provisionally pending its entry into force’. It (p. 653) sometimes happens that the treaty does not enter into force but that it remains applied provisionally. Notably, this was the case of the GATT which was only ratified by Haiti. Despite this, the goals of the treaty may well be achieved. The Vienna Convention sets out another modality to terminate a provisional application. Unless otherwise provided, any party to an agreement on provisional application may unilaterally terminate it, by notifying the other States to which the treaty provisionally applies, of its intention not to become a party to it. It is conceivable that entry into force is unduly delayed to the point that a State may deem it no longer possible to continue to apply the prescribed provisions provisionally. It is also feasible that the treaty being applied on a provisional basis is rejected by parliament; hence, precluding that State from becoming a party to it.108

References 29. In 1962, Sir Humphrey Waldock, as his predecessor Sir G. Fitzmaurice had done, provided for the possibility of giving notice of termination of a provisional entry into force ‘if … the entry into full force of the treaty [was] unreasonably delayed’.109 That withdrawal only affected the party concerned.110 However, the ILC retained the fact that the treaty continued ‘in force on a provisional basis until either the treaty [had] entered into force definitively or the States concerned [had] agreed to terminate the provisional application of the treaty’ (Art. 24). This implied subordinating the possibility of terminating a provisional application to an agreement between the interested States.111 While referring to comments by a government,112 the Rapporteur made a new proposal; the treaty would continue to be in force on a provisional basis until either its definitive entry into force or until ‘it [would] have become clear that one of the parties [would] not ratify or, as the case may be, approve it’.113 That proposal did not dispel all doubts. Eventually, the Commission, still using the notion of entry into force, decided to delete the provision relating to the termination of such entry into force, while at the same time it suggested leaving ‘the point to be determined by the agreement of the parties and the operation of the rules regarding termination of treaties’.114 30. At the Conference, the representative of the United States proposed the following text: Provisional application of a treaty or part of a treaty may terminate as agreed by the States concerned or upon notification by one of those States to the other State or States that it does not intend to become definitively bound by the treaty.115 (p. 654) This provision was completed with the submission of two amendments;116 one demanding the absence of any contrary provision, and the other, the necessity to give notice of termination of a provisional application. However, the obligation to obtain an agreement on a provisional application was disposed of. The Drafting Committee117 took into consideration the content of the two amendments and the Committee of the Whole adopted the text submitted to it without putting it to the vote.118 *

DENISE MATHY

Footnotes: 1 See infra, Convention on the Law of Treaties between States and International Organizations or between International Organizations. 2 YILC, 1962, vol. II, for Art. 20(6), pp 68–9, for the commentary, p 71, para. 7. 3 YILC, 1962, vol. I, 657th meeting, p 180, para. 17. 4 Commentary by the ILC on Art. 24, Provisional Entry into Force, YILC, 1962, vol. II, p 182, also the Special Rapporteur, YILC, 1965, vol. I, 791st meeting, pp 112–13, para. 55; the

representatives of States at the Conference of Vienna on the law of treaties, at the 26th and 27th meetings of the Committee of the Whole, Official Records, 1st session, pp 138–46; at the 11th plenary meeting, Official Records, 2nd session, pp 36–9, and at the 29th plenary meeting, pp 159–60. 5 Neither the Harvard draft nor that of Lord McNair contained Articles relating to provisional application. 6 Report of the ILC on the work of its 34th session, YILC, 1982, vol. II, Part Two, pp 15–16, para. 55. 7 P. Reuter wrote that other Articles could be added to his list but ‘in a more questionable manner’; he did not give any examples, La convention de Vienne sur le droit des traités (Paris: Armand Colin, 1970), p 7. 8 First report on the Law of Treaties by Sir Humphrey Waldock, YILC, 1962, vol. II, Art. 21(2) (b), Legal Effects of Entry into Force, commentary, p 71, para. 4. 9 Ibid. 10 YILC, 1965, vol. I., 791st meeting, pp 112–13, para. 55. The Rapporteur still maintained the terminology ‘provisional entry into force’. 11 Comment by the government of Japan on Art. 24, Entry into Force Provisionally, Fourth Report by Sir Humphrey Waldock, YILC, 1965, vol. II, p 58. The United States even questioned whether that practice required notice in the Convention, ibid. During an ILC meeting, Elias expressed his opposition to the Article, YILC, 1965, vol. I, 790th meeting, p 107, para. 84; at the Conference, at the Committee of the Whole, the United States, 26th meeting, para. 23, Vietnam, para. 26, Japan, para. 40, and at the 27th meeting, Malaysia, para. 7, showed their dissatisfaction with the draft Article, Official Records, 1st session, pp 140–4. 12 Article 24, Provisional Entry into Force, YILC, 1965, vol. II, Observations and proposals of the Special Rapporteur, p 58, para. 1. 13 The Special Rapporteur, YILC, 1965, vol. I. 791st meeting, pp 112–13, para. 55; at the Conference, 11th plenary meeting, Guatemala, paras 52–4, Costa Rica, para. 67, Uruguay, paras 77 and 78, Colombia, para. 86, and El Salvador, para. 104, Official Records, 2nd session, pp 36–9. At the United Nations Conference on the Law of Treaties between States and international organizations or between international organizations, Brazil, due to the constitutional difficulties created by those Articles in the two Conventions, ascribed to them a residual nature. In this manner, it expressed the opinion that a State is not required to engage in the provisional application of a treaty: Official Records, 2nd session, p 11. 14 Comments of the Swedish government, YILC, 1965, vol. II, p 58; Jiménez de Aréchaga, YILC, 1965, vol. I, 790th meeting, p 106, para. 76 and 791st meeting, p 112, para. 50. 15 Official Records, 1st session, 27th meeting of the Committee of the Whole, p 146, para. 25. 16 Costa Rica, Official Records, 2nd session, 11th plenary meeting, paras 67 and 82; Italy, ibid, para. 83. 17 El Erian, YILC, 1965, vol. I, 790th meeting, p 108, para 98. 18 A/5209, YILC, 1962, vol. II, Report to the General Assembly, commentary on Art. 24, p 182 and A/6309 Rev.1, YILC, 1966, vol. II, commentary on Art. 22, Entry into Force provisionally, p 210, para. 1. 19 Official Records, 2nd session, Summary Records, 11th plenary meeting, Expert Consultant, p 43, para. 89. 20 Particularly at the 26th, 27th, and 72nd meetings of the Committee of the Whole and at the 11th, 28th, and 29th plenary meetings. 21 The Committee of the Whole had approved Art. 22 on provisional application, without a vote, Official Records, 1st session, 72nd meeting, p 427, para. 28. The text did not suffer further modifications and was adopted at the Conference by 87 votes to 1, with 13 abstentions, Official Records, 2nd session, Summary Records, 11th plenary meeting, p 43, para. 101. 22 Colombia voted in favour of the Article, 11th plenary meeting, paras 85 and 86, Costa Rica, Guatemala, Uruguay, and Cameroon abstained, same meeting paras 52–4, 67, 72, and 77, Official Records, 2nd session, pp 36–9. 23 eg Colombia, Costa Rica, Guatemala, Multilateral Treaties Deposited with the SecretaryGeneral, December 1999. 24 Among others, the Vienna Convention on Succession of States in respect of Treaties, 22 August 1978 (Arts 27–9), the Convention on Succession of States in respect of State Property, Archives and Debts, 6 April 1983 (Art. 4), the Convention on the Law of the Sea of Montego Bay, 10 December 1982, in Art. 308(4), as well as Res. I and II, one relating to the Preparatory Commission for the International Seabed Authority and for the International Tribunal, and the other on the preparatory investments for the preliminary activities in respect of polymetallic nodules. Article 308(4) specified that ‘[t]he rules, regulations and procedures drafted by the Preparatory Commission shall apply provisionally pending their formal adoption by the Authority in accordance with Part XI’; on the scope of that provisional application, D. Vignes, Note on the end of the work of the Second Conference on the Law of the Sea and the scope of the texts adopted at Montego Bay, 10 December 1982, AFDI, 1982, pp 794–810; Tullio Treves, ‘L'entrée en vigueur de la convention des Nations Unies sur le droit de la mer et les conditions de son universalisme’, AFDI, 1993, pp 850–73; Tullio Treves, ‘Réflexions sur quelques conséquences de l'entrée en vigueur de la Convention des Nations Unies sur le droit de la mer’, AFDI, 1994, pp 849–63; the Convention on Long-range Transboundary Air Pollution, Geneva, 16 November 1979, C. Kiss, ‘La coopération pan européenne dans le domaine de la

protection de l'environnement’, AFDI, 1982, pp 719–25. 25 eg the Energy Charter Treaty, Lisbon, 17 December 1994 was applied provisionally by the parties pending its entry into force after ratification by 30 parties. 26 The International Wheat Agreement, 4 April 1966, Art. 39 of which invites certain States to deposit a declaration of provisional application with the government of the United States; the Convention concerning the Encouragement of Capital Investment and the Protection of Property, between the BLEU and Morocco, 28 April 1965, Art. 8 of which provides for provisional application of certain provisions pending the entry into force of the Convention. 27 Castrén, YILC, 1965, vol. I, 790th meeting, p 106, para. 78. 28 ‘Owing to the urgency of the matters dealt with in the treaty or for other reasons’, YILC, 1962, vol. II, Report of the Commission, commentary on draft Art. 24, p 182, para. 1, and YILC, 1966, vol. II, Report of the Commission, commentary on Art. 22, p 110, para. 1; urgency was again invoked by the Expert Consultant, Sir Humphrey Waldock, at the Conference, Official Records, 2nd session, Summary Records, 11th plenary meeting, para. 89; also the award the Government of the State of Kuwait v American Independent Oil Cy. (AMINOIL), P. Reuter, President, A. Sultan, and Sir Gerald Fitzmaurice, ILM, 1982 (September), p 1005, para. 32 and Répertoire de la jurisprudence internationale, Book III, vol. 1, no. 3011, pp 26 and 27; I. Sinclair, The Vienna Convention on the Law of Treaties (2nd edn, Manchester: Manchester University Press, 1984), p 46. 29 Resolution 1289 of the Security Council, 7 February 2000, on the situation in Sierra Leone: 16. Reiterates its request to the Government of Sierra Leone to conclude a status-offorces agreement with the Secretary-General within 30 days of the adoption of this resolution, and recalls that pending the conclusion of such an agreement the model status-of-forces agreement dated 9 October 1990 (A/45/594) should apply provisionally. 30 Tullio Treves, citing Mrs Albright, AFDI, 1993, p 858, and the option of provisional application of the Agreement relating to the application of Part XI of the Convention, ibid, pp 869 ff, also AFDI, 1994, pp 856–8. 31 Sir Humphrey Waldock, Expert Consultant, 11th plenary meeting, para. 89, Official Records, 2nd session, p 43. It is the case of the Convention on Long-range Transboundary Air Pollution, supra; also the two articles by Tullio Treves, supra n 24. 32 YILC, 1965, vol. I, Jiménez de Aréchaga, 790th meeting, para. 76 and 791st meeting, p 112, para. 50; the Expert Consultant, YILC, 1962, vol. I, 657th meeting, p 180, para. 17. 33 Switzerland, Conference of the United Nations on the Law of Treaties, Official Records, 1st session, 26th meeting, Committee of the Whole, p 142, para. 46. 34 Opinion given on 14 March 1960 by the Council of State on the bill to approve the European Monetary Agreement and the Protocol on its provisional application, both from 4 August 1955, Documents Parlementaires, House, 1959–1960, preamble of the bill, 614–1; those agreements were approved by law of 11 August 1961, Moniteur belge, 19 October 1961. 35 Observations and proposals of the Special Rapporteur, on Art. 24, Provisional Entry into Force, YILC, 1965, vol. II, p 58, para. 1. 36 Switzerland, Official Records, 1st session, 26th meeting of the Committee of the Whole, p 142, para. 46. The same concern was expressed by the representatives of Guatemala, Costa Rica, Colombia, and Uruguay, under the constitutions of which ‘a preponderant part in forming the will of the State was given to the Legislature, whose consent was essential for the entry into force and application of every international agreement that had been concluded by the Executive’ (English language version) Official Records, 2nd session, 11th plenary meeting, Uruguay representative, para. 77; also Greece, Official Records, 2nd session, Summary Records, 11th plenary meeting, p 41, para. 73. 37 P. Reuter, La convention de Vienne sur le droit des traités, supra n 7, p 11. 38 Guatemala, Official Records, 2nd session, Summary Records, 11th plenary meeting, p 39; Greece declared that that could ‘lead to a conflict between international law and the constitutional law of a State and thereby give rise to delicate situations’, Official Records, 2nd session, Summary Records, 11th plenary meeting, p 41, para. 73. 39 Switzerland, 26th meeting of the Committee of the Whole, para. 46, ibid. 40 P. Reuter, Introduction au droit des traités (3rd edn, Paris: PUF, 1995), pp 17 and 18; in Belgium, at the same time as a bill for the approval of several agreements signed with Turkey, within the framework of Belgian participation at the Organisation for Economic Co-Operation and Development, eg a Loan Agreeement of Belgium to Turkey of 28 November 1958. They were all approved by law of 29 June 1960, Moniteur belge, 20 August 1960. The Loan Agreement had to enter into force on the day of exchange of ratifications (3 September 1966), but the contracting parties agreed to apply it provisionally (Art. 6) at the latest on 15 December 1958. The Council of State, in its opinion of 27 November 1959, criticized the payments made by Belgium before parliamentary approval. 75 million francs had been released to be made in three payments. This despite the fact that treaties which could put a burden on the State (Art. 68(2) of the Constitution) could not be implemented unless assent had been given by the Chambers, Documents parlementaires, House, 1959–1960 no 384/1, statement of reasons, p 4. Parliamentarians were also critical and certain of them even refused to vote on the law to approve the treaties. The Foreign Affairs Minister explained that the treaty consisted of a multilateral agreement, and for that reason it ‘was dangerous for Belgium to delay the performance of an engagement it had taken’, Annales parlementaires, House, 31

March 1960, pp 5–8. Concerning the issue of finding the funds without prior budgetary approval, the minister revealed that it was the National Society for Trade Credit and not the State which effectuated the payments. On this agreement see L. Leon Gomez, Le statut juridique des prêts interétatiques dans la pratique belge (Brussels: Bruylant, 1986), pp 383, 144. 41 Venezuela, Official Records, 1st session, 26th meeting of the Committee of the Whole, p 141; Uruguay, ibid, 2nd session, 11th meetng of the Committee of the Whole, p 41, para. 78; Canada, ibid, para. 80; Italy, ibid, para. 84; the Expert Consultant, Sir Humphrey Waldock, ibid, 2nd session, 11th plenary meeting, p 43, para. 89. 42 Regarding economic matters, it is worth noting the GATT agreements on basic commodities, agreements on air transport, but also matters such as privileges and immunities, the law of the sea, telecommunications, the establishment of boundaries, military service, environmental protection, treaty succession; this list is far from being comprehensive. 43 Certainly for States, provisional application may be admitted under their respective constitutions mainly in commercial matters. Costa Rica, for treaties concluded within the framework of the Central American Common Market, Official Records, 2nd session, 11th plenary meeting, pp 40–1, para. 67; Venezuela, Official Records, 1st session, 26th meeting Committee of the Whole, p 141, para. 31. In France, legislative authorization is given to the government by virtue of the law of 1919, which covers various matters, but also the practice of decrees. P.-M. Eisemann noted that France accepted provisional application of agreements on basic commodities without any protest, L'organisation internationale du commerce des produits de base (Brussels: Bruylant, 1982), p 288. In the Netherlands, the Constitution (Arts 62 and 63) authorizes the provisional application of conventions covering certain matters or those providing for engagements not exceeding one year, H. F. van Panhuys, ‘The Netherlands Constitution and International Law’, AJIL, 1964, vol. 58 (January), pp 88–108. 44 This is what was affirmed by the Belgian government when it presented the convention BLEU-Morocco of 28 April 1965 for approval by the chambers. Article 8 of that Convention prescribed provisional application of Arts 2 and 3, Documents parlementaires, House 1965–66, preamble to the bill, 256–1, 18 July 1966, p 2 or RBDI, 1968, vol. 280, p 556. 45 Article 1(b) of the Protocol on provisional application of GATT concerning the provisional application of Part II of the Agreement; a more recent example, the Energy Charter Treaty of 17 December 1994. 46 Venezuela, Official Records, 1st session, 26th meeting of the Committee of the Whole, p 141, para. 33. 47 eg the Secretariat of the United Nations affirmed not having received any complaints or knowing of a dispute in respect of an organization dealing with basic commodities, on the matter of an incomplete application, by a State which would have made a declaration on provisional application prior to ratification, Letter addressed to the executive Director of the International Cocoa Organization, 10 September 1976, by the Secretariat of the United Nations, UNJY, 1976, p 222. 48 The Expert Consultant, Official Records, 2nd session, 11th plenary meeting, p 43, para. 90. 49 See examples cited by D. Vignes, supra n 24, pp 182–5. 50 Preamble to an exchange of notes of 28 February 1975 between the President of the Council of the European Communities and the President of the Council of Ministers of the African, Caribbean and Pacific Group of States, Moniteur belge, 4 May 1976. 51 Particularly within the framework of the GATT on the matter of State succession, Succession of States to Multilateral Treaties, Studies prepared by the Secretariat of the United Nations, A/CN/.4/200/Rev.2, YILC, 1968, vol. II, p 74. 52 Agreement relating to Scheduled Air Transport Services concluded between Switzerland and Argentina on 25 January 1956, Art. 19: This Agreement shall be applied from the date of its signature by the competent authorities of the Contracting Parties. It shall enter into force on the day on which the Contracting parties shall have notified each other through the diplomatic channel of its ratification. (UNTS, vol. 559, p 146) 53 The Madrid Convention, 3 July 1880, on the protection of foreign nationals in Morocco, providing for the exchange of ratifications, stipulates that ‘By exceptional consent of the high contracting parties the stipulations of this convention shall take effect on the day on which it is signed at Madrid’, de Martens, Nouveau recueil général des traités, 2nd series, VI, p 624. 54 Agreement of 10 July 1970 concerning the establishment of an International Investment Bank ‘came into force provisionally on 1 January 1971, and definitively on …’, UNTS, vol. 801, p 342. 55 ‘until such ratification, said agreement shall be deemed to be in full force and effect and shall be implemented as if such instruments of ratification had been already exchanged’, Agreement of 7 November 1962 between Greece and Ethiopia on tax exemptions on income earned by Greek and Ethiopian air transport companies, UNTS, vol. 550, p 189. 56 Resolution No. 1 of the Final Act of the Conference for the establishment of a European Space Agency of 30 May 1975, approved by law of 28 July 1978, Moniteur belge, 1 December 1978; in the preamble to the bill of 18 January 1977, the Belgian government explained that to the extent that it did not conflict with the previous agreements ELDO and ESRO, the new Convention for the Establishment of a European Space Agency ‘[was] already being applied “de facto” pending its entry into force “de jure” ’, Documents parlementaires, House, 1976– 1977, no 1062 p. 5; A. Manin, ‘Le nouveau cadre de la coopération spatiale en Europe:

l'Agence spatiale européenne’, RTDE, 1974, vol. 2, pp 233–67. 57 Reuter, YILC, 1965, vol. 1, 791st meeting, p 111, para. 34. 58 The term ‘entry into force prior to ratification’ was proposed by Brierly, Art. 6(b), Third Report, A/CN23, para. 108, YILC, 1950, vol. II, pp 242–3; H. Lauterpacht, First Report, A/CN.4/63, YILC, 1953, Art. 6(2)(b) and commentary, para. 5, vol. II, p 113; Sir Gerald Fitzmaurice contemplated provisional entry into force in two Articles; one regarding the modalities of entry into force and the other its legal effects, Arts 41 and 42, A/CN.4/101 and 107 YILC, 1956, vol. II, paras 105 and 106. 59 First Report, Arts 20 and 21, A/CN.4/144, YILC, 1962, vol. II, pp 68–9. 60 First Report, Arts 21al. (2)(b) and Art. 24 of the Report of the ILC, A/5209, YILC, 1962, vol. II, p 182. 61 27th meeting of the Committee of the Whole at the Conference of Vienna, paras 16 and 17, Official Records, 1st session, p 140. 62 Bartoš, YILC, 1962, vol. I, 668th meeting, p 259, para. 40. 63 YILC, 1965, vol. I, 790th meeting, p 106, para. 75. 64 T. O. Elias, The Modern Law of Treaties (Leiden: Sijthof, 1974), p 39. 65 Czechoslovakia, 26th meeting of the Committee of the Whole, para. 37, Official Records, 1st session, p 141. 66 YILC, 1965, vol. I, 790th meeting, Jiménez de Aréchaga, p 106, para. 76, Verdross, p 106, para. 81, De Luna, p 106, para. 91, Lachs, p 108, para. 100 and 791st meeting, Briggs, p 108, para. 3, Ago, p 109, paras 5–7. 67 YILC, 1965, vol. I, 814th meeting, p 274, paras 39 and 40. 68 Official Records, 1st session, 26th meeting of the Committee of the Whole, p 146, paras 15–19. 69 Bartoš, YILC, 1965, vol. I, 791st meeting, p 110, para. 21. 70 Notably Ago, YILC, 1965, vol. I, 791st meeting, p 110, paras 5–8 and pp 109–11, para. 40. 71 Sir Humphrey Waldock, YILC, 1965, vol. I, 791st meeting, p 113, para 58. 72 By 17 votes to 0, YILC, 1965, vol. I, p 285. The draft Article was presented at the Conference as Art. 22, Official Records, 1st and 2nd sessions, p 30. 73 After proposing the deletion of the Article, the US representative considered that if, however, the Article was to be retained, it was preferable to replace the expression ‘entry into force provisionally’ by ‘provisional application’, 27th meeting [pas 26th] of the Committee of the Whole, paras 22 and 24, Official Records, 1st session, p 140. 74 Deposited by Czechoslovakia and Yugoslavia (A/CONF.39/C.1/L.185 and Add.1), Report of the Committee of the Whole, Official Records, 1st and 2nd sessions, Summary Records, p 144. 75 See supra n 17. 76 Italy, Official Records, 1st session, Summary Records, 26th meeting of the Committee of the Whole, p 142, para. 43. 77 Letter addressed to the Executive Director of the International Cocoa Organisation on 10 September 1976, UNJY, 1976, p 222. 78 D. Vignes, supra n 24, p 190. 79 YILC, 1965, vol. 1, 791st meeting, esp. Reuter, paras 34–8, Ago, para. 42, Lachs, p 123, para. 44, Cadieux, para. 48, Amado, para. 49, Toukine, p 112, para. 54. 80 That aspect was evoked at the 11th plenary meeting of the Conference by the United Kingdom, paras 56 and 57, India, para. 69, Greece, para. 74 and by I. Sinclair, supra n 28, p 46. That situation is encountered in several agreements on basic commodities, eg in Art. 39 of the International Agreement on Jute and Jute Products, 1 October 1982: A signatory Government which intends to ratify, accept or approve this Agreement, or a Government for which the Council has established conditions for accession but which has not yet been able to deposit its instrument, may, at any time, notify the depositary that it will apply this Agreement provisionally either when it enters into force in accordance with Article 40 or, if it is already in force, at a specified date. Also, Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of Montego Bay of 28 July 1994. 81 Sir Humphrey Waldock, Official Records, 1st session, 27th meeting, Committee of the Whole, pp 114–15, paras 17 and 25. 82 The Expert Consultant admitted at the Conference that ‘because of a certain urgency in the matter at issue …it was highly desirable that certain steps should be taken by agreement in the very near future’, Official Records, 2nd session, 11th plenary meeting, p 43, para. 89. Also the representative of Israel, Official Records, 2nd session, 12th meeting of the Committee of the Whole, p 49, para. 62. 83 In 1962 the ILC questioned whether the treaty entered into force by virtue of the treaty or ‘of a subsidiary agreement concluded between the States concerned in adopting the text’, Report of the ILC to the General Assembly, YILC, 1962, vol. II, para. 1 of commentary on Art. 24, p 182. 84 The Expert Consultant, Official Records, 1st session, 27th meeting of the Committee of the Whole, pp 145–6, paras 17 and 25.

85 Tounkine, YILC, 1965, vol. 1, 791st meeting, p 112, para. 54; ‘the procedure in Article 22 took place by virtue of special consent embodied either in the main text of the treaty or in a separate agreement, often a treaty in simplified form’, Expert Consultant, Official Records, 1st session, 27th meeting of the Committee of the Whole, p 146, para. 25; P. Reuter, Introduction au droit des traités, supra n 40, p 62. 86 Briggs, YILC, 1965, vol. I, 791st meeting, p 109, para. 4; Ago also uses the term ‘secondary agreement’, ibid, paras 5 and 17; Tsuruoka, ibid, para. 11. 87 Reuter, YILC, 1965, vol. I, 791st meeting, p 111, para. 36; Ago: ‘a secondary agreement, distinct from the treaty even if it was laid down in a clause of the treaty or was implied in the text’, YILC, 1965, vol. I, 791st meeting, p 110, para. 17. 88 It is worth noting that that Article did not speak of the entry into force of the final clauses but of their applicability. Thus, the treaty is not in force and it may never even enter into force. But States agreed on giving effect to those clauses. 89 Observations of the Special Rapporteur, YILC, 1965, vol. II, p 58; of the Expert Consultant, Official Records, 1st session, 27th meeting of the Committee of the Whole, p 146, para. 25; the arbitral tribunal presided by P. Reuter affirmed that ‘it can be concluded in simplified form,— such is its raison d’être', Arbitral award of 24 March 1982, Kuweit c AMINOIL, Clunet, 1982, pp 877 and 878, para. 33. 90 Expert Consultant, Official Records, 1st session, 27th meeting of the Committee of the Whole, p 146, para. 25; P. Reuter, Introduction au droit des traités, supra n 40, p. 62. 91 Japan, para. 40, 26th meeting of the Committee of the Whole, Official Records, 1st session, p 141. 92 eg administrative arrangements are established in the Agreement on Air Services between France and Monaco, 24 January 1991, which ‘shall enter into force provisionally upon signature, and on a final basis upon entry into force of the Agreement’, UNTC, vol. 1668, p 338. 93 Sir Humphrey Waldock, YILC, 1965, vol. I, 814th plenary meeting, p 275, para. 55. YILC, 1966, vol. II, Report of the ILC on the work of its 18th session, Commentary on Art. 22, Entry into Force Provisionally, p 210, para. 2. 94 Paragraph 7 of Art. 20, Mode and Date of Entry into Force, which also concerned the provisional entry into force, read as follows: Nothing in the present Article is to be understood as precluding the possibility of the provisions of a treaty being brought into force by the subsequent agreement or subsequent acts of the States concerned. (First Report by Sir Humphrey Waldock, A/CN.4/144, YILC, 1962, vol. II, p 69) 95 First Report by Sir Humphrey Waldock, ibid Ago, YILC, 1965, vol. I, 791st meeting, p 110, para. 17; Tsuruoka speaks of a tacit agreement, ibid, p 110, para. 27; Tounkine, ibid, para. 28. 96 Rosenne raised the question of registration of treaties and of the need to modify the regulations giving effect to registration as a result of the Article, YILC, 1965, vol. I, 790th meeting, p 107, para. 94; Art. 80, Registration and Publication of Treaties. 97 A memorandum of 31 May 1997 by the Canadian Legal Bureau: …In the meantime both Parties appear to have acted as though the Agreement is being applied provisionally although there has been no formal action (such as an exchange of notes) confirming that it is to be applied provisionally …their conduct reflects tacit acquiescence that the Agreement should be applied provisionally. (Canadian Yearbook of Int'l L, 1978, p 376) 98 Reuter, YILC, 1965, vol. I, 791st meeting, p 111, para. 37. 99 Lachs, YILC, 1965, vol. I, 791st meeting, p 112, para. 44; Reuter even proposed that the Article be deleted unless it could be reworded in a manner that expressed the flexibility in practice, para. 38. 100 J. Salmon, ‘Les accords non formalisés ou “solo consensu”’, AFDI, 1999, p 6. 101 Observations and proposals of the Special Rapporteur, A/CN.4/177, YILC, 1965, vol. II, p 58. 102 Tounkine, YILC, 1965, vol. I, 791st meeting, p 110, para. 28. 103 Observations and proposals of the Special Rapporteur, YILC, 1965, vol. II, p 58. 104 Reports of the Commission to the General Assembly, YILC, 1962, vol. II, p 182 and 1966, vol. II, p 211. 105 The United Kingdom, at the 11th plenary meeting, para. 58, Greece para. 74, Official Records, 2nd session, pp 39–43; Norway, 12th meeting of the Committee of the Whole, ibid, p 49, para. 30, Romania, 12th meeting of the Committee of the Whole, ibid, p 51, para. 58, Ukraine, 12th meeting of the Committee of the Whole, ibid, p 51, para. 61, Poland, 29th Plenary Meeting, ibid, p 169, para. 3; the President of the meeting, M. Ago: In the light of the interpretative statements just made, it was obvious that the expression ‘treaty in force’ also covered treaties applied provisionally and that the same was true of the expression ‘in good faith’. (12th plenary meeting, ibid, p 49, para. 63) 106 India, Official Records, 2nd session, 11th plenary meeting, p 41, para. 70.

107 Supra, Canadian Yearbook of Int'l L, 1978, p 366. 108 Comments by the Netherlands on the draft Article, YILC, 1966, vol. II, p 360. Along the same lines Ago, YILC, 1965, vol. I, 814th meeting, p 275, para. 49. 109 First Report, A/CN.4/144, YILC, 1962, vol. II, Art. 21, Legal Effects of Entry into Force, al. (2)(b) p 71: and, unless the parties have concluded a further agreement to continue the treaty in force on a provisional basis, any of the parties may give notice of the termination of the provisional application of the treaty; and when a period of six months shall have elapsed, the rights and obligations contained in the treaty shall cease to apply with respect to that party. 110 YILC, 1962, vol. II, Art. 21, Legal Effects of Entry into Force, para. 4 of the commentary, p 71. 111 Article 21, Provisional Entry into Force, Draft Report by the ILC, adopted at the 668th meeting, YILC, 1962, vol. I, p 259, para. 40 and YILC, 1962, vol. II, Report by the Commission, Art. 24, Provisional Entry into Force, p 182. 112 Particularly those made by Sweden, YILC, 1965, vol. II, p 58. 113 Fourth Report, YILC, 1965, vol. II, p 58. 114 Paragraph 4 of commentary on Art. 22, Entry into Force Provisionally, para. 4, Report of the Commission on the work of its 18th session, YILC, 1966, vol. II, p 212. 115 Oral proposal at the 26th meeting of the Committee of the Whole, Official Records, 1st session, p 140, para. 24. 116 Presented by Belgium: A/CONF.39/C.1/L.194 and by Hungary and Poland: L.198, Official Records, 1st session, Reports of the Committee of the Whole, p 144. 117 Referred to the Committee at the 27th meeting of the Committee of the Whole. 118 That text reads as follows (Art. 22(2)): Unless the treaty otherwise provides or the negotiating States have otherwise agreed, the provisional application of a treaty or a part of a treaty with respect to a State shall be terminated if that State notifies the other States between which the treaty is being applied provisionally of its intention not to become a party to the treaty. (72nd meeting of the Committee of the Whole, paras 24–8, Official Records, 1st session, p 426) At the 11th plenary meeting, several States indicated their reticence, their acceptance, or specified their interpretation of the text: Austria, para. 60, Iran, paras 62 and 71, the Expert Consultant, paras 64, 90, 91, and 94, the Chairman of the meeting, para. 65, the Chairman of the Drafting Committee, para. 66, India, para. 69, Greece, para. 75, Uruguay, para. 79, Canada, para. 81, Italy, para. 84, Poland, para. 88, Uganda, paras 92 and 93; at the 29th Plenary Meeting, Poland, paras 2 and 3. * Associate Researcher, Centre of International Law, Université libre de Bruxelles (ULB), Brussels, Belgium.

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Volume I, Part II Conclusion and Entry into Force of Treaties, s.3 Entry Into Force and Provisional Application of Treaties, Art.25 1986 Vienna Convention Denise Mathy From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Treaties, provisional application — Vienna Convention on the Law of Treaties — Treaties, entry into force

(p. 655) 1986 Vienna Convention Article 25 Provisional application 1. A treaty or a part of a treaty is applied provisionally pending its entry into force if: (a) the treaty itself so provides; or (b) the negotiating States and negotiating organizations or, as the case may be, the negotiating organizations have in some other manner so agreed. 2. Unless the treaty otherwise provides or the negotiating States and negotiating organizations or, as the case may be, the negotiating organizations have otherwise agreed, the provisional application of a treaty or a part of a treaty with respect to a State or an international organization shall be terminated if that State or that organization notifies the States and organizations with regard to which the treaty is being applied provisionally of its intention not to become a party to the treaty. 1. Article 25 of the 1986 Convention is similar to Article 25 of the Convention of 1969. As the Special Rapporteur noted, they only differ ‘with respect to the drafting changes needed in order to take account of international organizations’.1 This draft Article does not distinguish between, on the one hand, treaties concluded between States and international organizations, and on the other hand, those concluded between international organizations. During the debates, a disagreement arose regarding the assimilation between States and international organizations as parties to treaties. As a result, it was suggested that two Articles be drafted.2 On the one hand, Article 25, provisional application of treaties between international organizations; on the other hand, Article 25bis, provisional application of treaties between one or more States and one or more international organizations.3 Again, the Commission specified that these ‘two separate symmetrical articles …differ[ed] from the Vienna Convention only by the drafting changes needed to adapt them to cover the two categories of treaties with which the present draft articles are concerned’.4 2. These Articles were not the object of comments regarding substance; the Special Rapporteur simplified their wording and combined them into a single Article 25.5 The (p. 656) principle followed was that of ‘aligning the regime of international organizations on that of States’, to arrive at a text which corresponded more closely to that of Article 25 of the Vienna Convention.6 The new Article 25 differed from the corresponding Article of the 1969 Vienna Convention solely ‘in so far as necessary to cater for the distinction between treaties between international organizations and treaties between States and international organizations (art. 24, paras. 1 and 3; art. 25, subpara. 1(b) and para. 2)’.7 At the Conference, the Article, the first paragraph of which remained unchanged but the second paragraph of which regarding the notice of termination of provisional application was simplified, was adopted without vote.8 *

DENISE MATHY

Footnotes: 1 Reuter, Fourth Report, A/CN.4/285, YILC, 1975, vol. II, p 39; the draft Article was presented and examined at the 1435th meeting, paras 3, 4, 7, and 17, YILC, 1977, vol. I, pp 103–5. 2 Notably expressed by Ouchakov, ibid, paras 8–12, Sahovic, paras 14 and 15. The debate at the 1435th meeting, paras 3–32 covered the essentials of the need to emphasize that the equality between States and organizations solely applied in respect of the law of treaties. The draft Article was referred to the Drafting Committee, 1435th meeting, para. 32. 3 Presented at the 1452nd meeting, paras 44 and 45, the two Articles were approved without a vote, YILC, 1977, vol. I, p 207. 4 Report of the ILC on the work of its 29th session, YILC, 1977, vol. II, Part Two, pp 117 and 118. 5 P. Reuter, Tenth Report, A/CN.4/341 and Add.1, YILC, 1981, vol. II, p 64, para. 85. However, at the 1652nd meeting, para. 30, of the Commission, two Articles were still presented by the Chairman of the meeting, eventually deciding to refer them to the Drafting Committee. The Chairman of the Drafting Committee submitted a single Art. 25 which replaced Arts 25 and 25bis, 1692nd meeting, paras 43 and 44 where it was adopted; commentary on Arts 24 and 25, Report of the ILC on the work of its 33rd session, YILC, 1981, vol. II, p 141. 6 1692nd meeting, para. 44, YILC, 1981, vol. I, p 265. 7 YILC, 1981, vol. II, Part Two, Report of the ILC on the work of its 33rd session, p 141 and YILC, 1982, vol. II, Report of the ILC on the work of its 34th session, p 38. 8 The expression ‘the other States and organizations’ was replaced by ‘the States and organizations’ to which notification must be made. Thus, rewritten in this form, the Article was adopted without being put to the vote, 5th plenary meeting, paras 60, 65, and 67 in fine, A/CONF.129/16, Official Records, vol. I, p 15. * Associate Researcher, Centre of International Law, Université libre de Bruxelles (ULB),

Brussels, Belgium.

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Volume I, Part III Observance, Application and Interpretation of Treaties, s.1 Observance of Treaties, Art.26 1969 Vienna Convention Jean Salmon From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Pacta sunt servanda — Customary international law — Object & purpose (treaty interpretation and) — General principles of international law — Good faith — Travaux préparatoires

(p. 659) 1969 Vienna Convention Article 26 Pacta sunt servanda Every treaty in force is binding upon the parties to it and must be performed by them in good faith. A. General characteristics 660 Object and purpose 660 Sources of the principle 661 The expression of the rule in international law 661 The rule as a customary principle or as a general principle of international law 662 Is the rule a general principle of law within the meaning of Article 38(1) of the Statute of the ICJ? 662 Is the rule a principle of natural law? 663 B. Scope of the rule pacta sunt servanda 663 Doctrinal positions 663 Position of the Vienna Convention 666 The rule applies solely to treaties ‘in force’ 666 The rule applies solely to valid treaties 668 The rule applies solely to treaties the provisions of which are operative in the particular case 669 The rule applies solely between parties to the treaty 670 C. Foundation of the rule pacta sunt servanda 670 Consent as foundation 670 Good faith as foundation? 671 A fundamental axiomatic norm as foundation? 673 A principle of non-contradiction 674 D. Content of the rule 675 Placement of the Article 675 The obligatory character of the treaty to the parties: ‘Every treaty is binding upon the parties to it’ 676 The obligation to perform the treaty in good faith 677 The object of the performance: the treaty 677 The manner in which performance must take place: the observance of good faith 678 Conclusion: customary character of the rule 681 E. Consequences of the rule 681 F. ‘Exceptions’ to the rule 682 G. Determinations and sanctions of breaches of the rule 683 General conclusion 685

(p. 660) Bibliography Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals (London: Stevens, 1953), pp 112–14 Decencière-Ferrandière, A., Du principe ‘pacta sunt servanda’ considéré comme norme fondamentale du droit international (Barcelona: Missel-Lania Patxot, 1931) —— Mélanges A. Decencière-Ferrandière (Paris: Pedone, 1940), pp 131–47 Harvard Law School, Research in International Law, Part III, Law of Treaties, AJIL, Supplement 1935, vol. 29, pp 671–85 Kunz, J. L., ‘The Meaning and the Range of the Norm Pacta Sunt Servanda’, AJIL, 1945, pp 180–97 Lachs, M., ‘Pacta sunt servanda’, Encyclopedia of Public International Law (Amsterdam: Elsevier, 1984), vol. 7, pp 364 ff Lukashuk, I. I., ‘The Principle of Pacta Sunt Servanda and the Nature of Obligation under International Law’, AJIL, 1989, pp 513 ff Ripert, G., ‘Les règles du droit civil applicables aux rapports internationaux’, RCADI, 1933-II, vol. 44 Sibert, M., ‘The Rule Pacta Sunt Servanda From the Middle Ages to the Beginning of Modern Times’, Indian Yearbook of Int'l Affairs, 1956, vol. 5, pp 219–26 Wheberg, H., ‘Pacta sunt servanda’, AJIL, 1959, pp 775–86

Whitton, J. B., ‘La règle Pacta sunt servanda’, RCADI, 1934-III, vol. 49, pp 151–275

A. General characteristics Object and purpose 1. The codification of the principle pacta sunt servanda within the framework of the ILC, the Sixth Committee of the General Assembly, and the Conference of Vienna of 1968–1969, clearly indicates that, while favouring the proclamation of the classic rule according to which every treaty must be performed by the parties, the creators of those texts tried to strike a balance between the maintenance of the status quo in treaty obligations and other preoccupations such as justice and openness to change. For this reason, governmental representatives insisted on the necessity to temper the pacta sunt servanda rule with other rules of the law of treaties or general international law; particularly: • the respect owed to freedom of contract and the establishment of an invalidity regime for vices of consent; 1 • the clause rebus sic stantibus in order to reconcile stability with progress; 2 • the jus cogens, contemplating the same purposes; 3 • its close relation with the basic principles of the Charter of the United Nations. 4 (p. 661) As it is considered infra, the rule set out in Article 26 is therefore inseparable from all the other rules of the Convention prescribing its modalities and limitations.

Sources of the principle 2. An historical analysis of the rule will not be attempted here as many authors have devoted significant developments to it. The rule boasts a lengthy past, dating back to Roman times and having subsisted ever since.5 It is found in all legal traditions around the world.6 3. The fundamental character of the rule embodied in Article 26 of the Vienna Convention has been proclaimed since time immemorial. Vattel already declared that: Every thing therefore which for the common [s]afety of the people, and for the tranquillity and [s]ecurity of the human race, ought to be inviolable, is held [s]acred among nations. Who can doubt that treaties are in the number of tho[s]e things that are held [s]acred by nations?7 It is thus not surprising that the pacta sunt servanda rule appears in a great many codification texts, such as the Declaration on the Rights and Duties of Nations, proposed at the Institute of International Law in October of 1921 by Albert de Lapradelle;8 Article 20 of the 1935 Harvard Draft;9 Article 13 of the draft Declaration on Rights and Duties of States (1949)10 by the ILC; and the Declaration on Friendly Relations of 24 October 1970.11 However, the foregoing codifications leave unanswered the issue of determining the original source of the rule. Although it is undoubtedly included in numerous treaties, it may also be considered a general principle of law in the sense of Article 38(1)(c) of the Statute of the International Court of Justice (ICJ), a principle of customary law, or even of natural law.

References

The expression of the rule in international law 4. Before its codification in the Vienna Conventions on the law of treaties, the rule had already been formally included in treaties on several occasions. The protocol of 17 January 1871 adopted at the London Conference is well known in this respect: The plenipotentiaries of the North German Union, of Austria-Hungary, of Great Britain, of Italy, of Russia, and of Turkey, met to-day in conference, recognize that it is an essential principle of the Law of Nations, that not Power can liberate itself from the engagements of a treaty, nor modify the terms thereof, except by the consent of the contracting parties, amicably had.12 (p. 662) References to the necessity to respect obligations arising from treaties are also found in the preamble to the Covenant of the League of Nations; the preambles to the Locarno Treaties of 16 October 1925;13 Article 10 of the Havana Convention on Treaties, adopted on 20 February 1928 by the 6th International Conference of American States;14 the preamble to the Charter of the United Nations; and Article 14 of the Charter of the Organization of American States, also known as the Pact of Bogota of 30 April 1948.15

References 5. The principle, while expressed in a variety of forms, is presented as a conventional provision within the framework of those treaties. However, it is generally admitted that the rule is purely declaratory of the law16 and that its basis is to be found prior to those conventions. Therefore, even if the principle is expressed in a given treaty, it is nonetheless true that the principle's validity precedes it because, to be binding, the treaty must already be governed by the principle.17

The rule as a customary principle or as a general principle of international law

6. For the most part, the doctrine considers that in this context the pacta sunt servanda rule has its origin in custom or that it would be a principle of general international law.18 As Roberto Ago expressed it at the ILC, pacta sunt servanda, construed ‘as a fundamental rule of the law of treaties…was a rule of general customary law which recognized the binding force of treaty provisions’.19

Is the rule a general principle of law within the meaning of Article 38(1) of the Statute of the ICJ? 7. A minority of authors considers that the rule constitutes a general principle of law in the sense of Article 38(1)(c) of the statute of the ICJ.20 This view stems from the idea that domestic laws include the pacta sunt servanda principle in the area of private contracts (for example, Art. 1134 of the French civil code and analogous provisions in other legal systems).21 The principle that conventions must be performed in good (p. 663) faith was also mentioned by the Committee of Jurists during the elaboration of the Statute of the Court as one of the general principles embodied in Article 38(3).22 However, the rule's specific application in the context of public international law (between equal and sovereign States) and its particular limitations brought by the framework of the public international law of treaties23 proves the analogy to be superficial. The situation with regard to interstate law is entirely different from that in the private law of contract where, in addition, the parties find the autonomy of their will protected by law.

References

Is the rule a principle of natural law? 8. Finally, some authors, such as Pufendorf24 and Vattel,25 considered that the rule was grounded in natural law. Moreover, in modern times Hans Wehberg ascribed a dual nature to the rule—while at the same time showing its religious origins—based on both custom and natural law.26 Similarly, for Le Fur, the obligation to observe freely chosen engagements was one of the fundamental basis of natural law.27 Verdross saw in the rule pacta sunt servanda ‘an ethical rule; that is to say, an obvious value or one which logically emerges from an absolute rule, for example the norm suum cuique’.28 The present author aligns with the doctrine that ascribes a customary source to the rule.29

B. Scope of the rule pacta sunt servanda Doctrinal positions 9. Generally, the doctrine restricts the scope of the rule to the law of treaties.30 However, this is not necessarily obvious. The customary rule, or the general principle of international law embodying the rule, has a broader scope in the eyes of other authors, who interpret its wording as a general principle linked to any agreement between States regardless of its form.31 In fact, it is convenient to examine the meaning that should be given to the Latin term pacta. The Roman and medieval traditions from which the maxim derives permit two readings of the word. In the ius civile, used among Roman citizens, the word ‘pacta’ was connected to a formalized system of contract creation. In contrast, in the ius gentium, applicable in the relations between Roman citizens and foreigners, engagements (p. 664) were not dependent on form but were instead based on good faith.32 Thus, the word ‘pactum’ could take on the broader sense of a juridical engagement between two subjects of law, regardless of form; a conception still supported by some contemporary authors. For example, Josef Kunz emphasized that attaching the norm pacta sunt servanda to treaties only would give rise to serious problems when it came to non-written (or oral) agreements.33 It is for this reason that Dionisio Anzilotti, the spokesman of positivism, extended the scope of the rule to obligations derived from custom.34 In addition, Maurice Bourquin wrote that ‘Pacta sunt servanda is nothing more than a particular form of a broader principle which must be applied to all norms’.35 Suzanne Bastid similarly considered that the rule was: a general principle expanding beyond the law of treaties stricto sensu. The consent given by the State to a request formulated by another State [was] binding upon it in all circumstances, even if a treaty ha[d] not been formally concluded.36 Phillip Jessup took a similar stance.37 Finally, Manfred Lachs, author of the entry Pacta sunt servanda in the first edition of the Encyclopedia of Public International Law, considered that the principle applied within the framework of custom, resolutions of international organizations, unilateral acts, acquiescence, etc.38 10. If it is admitted that a ‘pactum’ may be informal, it is entirely logical to consider that the principle ‘pacta sunt servanda’ applies every time there is a commitment to be legally bound which creates an agreement between subjects of law.39 As Serge Sur noted: The commitment of the State is directly or indirectly the source to all international normativity. This is true for all norms, whatever their nature, whatever their intensity, whatever their scope. Thus, the State is solely bound by virtue of its own consent, including its consent to custom and to the norms of jus cogens. That consent can present itself in a variety of forms; it can be explicit, implicit, tacit or even presumed.40 Ultimately, if it is considered that the ‘principle pacta sunt servanda’ is the primary source of the mandatory character of the norms arising from an agreement, there is no reason to limit

its scope to formal treaties. For this reason, and taking into consideration the following excerpt by Jean Combacau, would it not be open to be interpreted as applying to any commitment, both formal and informal? …the conventional edifice juxtaposes binding conventions which emanate from sovereign States, and no concept can better bring together those elements than the principle pacta sunt servanda (what has been consented to must be respected); a metajuridical principle more than a rule of law, (p. 665) the basic axiom without which no legal assertion may be taken seriously and which imposes on subjects of law that they consider as law that to which they have agreed to be law.41 At the ILC, the two renowned jurists Grigory Tounkine42 and Roberto Ago43 took the position that the rule had a broad scope of application. Particularly, they relied on the stance of the Portuguese government which in its written comments asserted that ‘the principle “pacta sunt servanda” [was] certainly recognized as having sufficient force to be the foundation for the legal rules expressly or tacitly accepted or recognized by States’.44. The present author adheres to that opinion. 11. From the foregoing, it can be concluded that some of the teachings relating to the rule pacta sunt servanda, which are developed infra, may be similarly contemplated in regard to other forms of interstate agreements. In this respect, the application of the principle to provisional application agreements45 or collateral agreements46 is also considered hereunder. 12. As already discussed, the pacta sunt servanda rule also applies to contracts under domestic law. By transposing to public international law the principle of the mandatory character of a contract to the parties to it, some concluded that it was a general principle of law within the terms of Article 38(1)(c) of the Statute of the ICJ. This conclusion—as shown supra—was rejected by many authors who considered that the foundation of the two rules was entirely distinct and that any analogy between contracts and treaties was inaccurate. Nevertheless, it must be mentioned that the analogy led part of the arbitral jurisprudence in international commercial law, as well as the doctrine supporting it, to consider that the rule pacta sunt servanda applied to contracts concluded between States or their administrative subdivisions and private companies. That reasoning was based on the theory according to which the principle constituted a rule of international law arising from a general principle of law within the meaning of Article 38 of the Statute of the ICJ.47 This conception has been criticized by numerous authors.48

References

(p. 666) Position of the Vienna Convention 13. Regardless of the scope of the rule in general international law, according to the terms of the Vienna Convention the rule specifically applies to ‘treaties’ within the meaning of the Convention, as defined in Article 2(1)(a); that is, within the narrow sense of a ‘procedural operation’. This position is supported by the fact that the rule—as it is considered infra— concerns every treaty ‘in force’ and, as such, all the necessary formal and substantive preconditions to this effect must have been satisfied between the ‘parties’, within the meaning given to the term ‘parties’ by these conventions. Moreover, the treaty must be valid. This limitation to the scope of the rule is not surprising, since the sole object of the Vienna Convention is the treaty, for which it codifies its formal rules. The 1986 Convention adopted the same position. From the foregoing discussion, it ensues that the rule applies solely when the following conditions are fulfilled: (1) the treaty is in force; (2) the treaty is valid; (3) the provisions of the treaty apply to the particular case; (4) in addition, the rule solely applies between ‘parties’ to the treaty.

The rule applies solely to treaties ‘in force’ 14. In an Article 30, adopted in 1963, the ILC had retained the following formulation: Every treaty concluded and brought into force in accordance with the provisions of part I shall be considered as being in force and in operation with regard to any State that has become a party to the treaty, unless the nullity, termination or suspension of the operation of the treaty or the withdrawal of the particular party from the treaty results from the application of the present Articles.49 The issue was extensively debated at the Commission in 1964. The text under discussion had been excerpted from the Third Report by Sir Humphrey Waldock, whose Article 55(1) (Pacta sunt servanda) partly stated that: A treaty in force is binding upon the parties and must be applied by them in good faith in accordance with its terms and in the light of the general rules of international law governing the interpretation of treaties.50 Several members of the Commission considered that the words ‘in force’ had to be deleted. Successively, Herbert Briggs,51 Taslim, O. Elias,52 Alfred Verdross,53 Mustafa Kamil Yasseen,54 Abdul Hakim Tabibi,55 and Yuen Li Liang56 expressed opinions to that effect. Their arguments were that the words were superfluous, useless, or tautological, as a treaty which was not in force could not be binding upon the parties. Thus, the phrase was no more needed

in that Article than in any other Article of the Convention referring to the concept of ‘treaty’. In contrast, other members such as Milan Bartoš,57 Shabtai Rosenne,58 Grigory (p. 667) Tounkine,59 Roberto Ago,60 Antonio de Luna,61 and Abdullah El-Erian62 considered that the words were necessary. Their arguments were that a treaty is only binding upon the parties between whom it is in force. The controverted terms had the effect of specifying the status of the obligations under the convention across time. It distinguished between different situations, such as that of existing treaties not yet in force or of treaties no longer in force as a result of denunciation or due to an external cause. The terms also assured that only valid treaties could be in force. In particular, Roberto Ago emphasized that: It had been argued that it [the expression ‘in force’] was superfluous, because a treaty which was not in force was not binding; but at its fifteenth session the Commission had considered a number of cases in which a treaty ceased to be in force; for example, in consequence of a new peremptory norm of general international law supervening after the treaty's entry into force, or by the operation of a resolutive condition in a treaty. If Article 55 did not specify that it referred to a treaty in force, a State might require the performance of an obligation deriving from a treaty which had in fact ceased to be in force.63 The outcome of the Commission's debate eventually coincided with the Rapporteur's conclusion that it was preferable to retain the expression ‘in force’.64 The draft was submitted to the Sixth Committee of the General Assembly and it was open to comments by governments. Several States insisted on the essential character of that precondition to make the norm pacta sunt servanda applicable.65 Consequently, the application of Article 26 of the Convention is subordinated to the rest of its provisions relating to the entry into force of treaties (Arts 24 and 25 of the Convention).66 15. The argument that the treaty should be in force for the norm to be applicable raised the issue of the mandatory character of final clauses, which apply from the time the text is adopted (this issue was solved by Art. 24(4)) and the provisional application of treaties (which was the subject of Art. 25). In their comments, some governments stressed that in their view, the norm must also apply ‘to the provisional entry into force of treaties’ (wording used before the ILC made official the expression ‘provisional application’).67 The Commission agreed with this perspective: The words ‘in force’ of course cover treaties in force provisionally…as well as treaties which enter into force definitively.68 16. Moreover, the application of Article 26 of the Convention is subordinated to all other provisions relating to the termination of treaties, as well as to the suspension of their application (Arts 54–64 of the Convention)69—even if in the latter case the treaty remains formally in force, though no longer operative. It is for this reason that what had often (p. 668) been called by the doctrine ‘exceptions to the rule pacta sunt servanda’—such as the termination or suspension of a treaty's application due to the conclusion of a subsequent agreement, as a result of its violation, a supervening impossibility of performance, a fundamental change of circumstances, or a supervening new norm of jus cogens70—were in fact modalities of application of the rule, given that the treaty must be in force. As Charles Chaumont wrote, the pacta sunt servanda rule did not apply to those treaties that had become ‘unenforceable’.71

The rule applies solely to valid treaties 17. The validity requirement had already been emphasised by the Permanent Court of Internationa Justice (PCIJ) in its Advisory Opinion of 21 February 1925 on the Exchange of Greek and Turkish Populations. The Court prescribed the following formula: …a State which has contracted valid international obligations is bound to make in its legislation such modifications as may be necessary to ensure the fulfilment of the obligations undertaken.72 Sir Gerald Fitzmaurice expressly stated this idea in his Fourth Report. Article 3(1) was couched in the following terms: The immediate foundation of the treaty obligation is the consent given to it by the parties, it being an antecedent principle of international law that consent finally and validly given creates a legally binding obligation.73 And Article 4(3) added: In relation to any particular treaty, the application of the foregoing provisions [the obligation to carry them out in good faith] is conditional on the treaty possessing the necessary validity…that is to say, on its having been regularly concluded…on its possessing essential validity…74 Following in his footsteps, the Commission adopted an Article 4 entitled ‘General conditions of obligatory force’ which was worded as follows: 1. A treaty has obligatory force only if, at the material time, it combines all the conditions of validity referred to in the preceding Article. 2. In the case of multilateral treaties, obligatory force for any particular State exists only if,… the treaty [is] valid in itself…75

References (p. 669) 18. Subsequently, this Article disappeared as such, but the concept of validity was dealt with in the provisions relating to the conclusion and invalidity of treaties. During the examination of the draft Articles by the ILC in 1964, the essentials of that prerequisite were covered within the discussion relative to the expression ‘treaties in force’. Several members argued that this expression specifically referred to valid treaties, which otherwise could not be deemed to be ‘in force’. The same opinion was later endorsed in the comments by some governments.76 The discussion resurfaced in the Commission in 1966. In this respect, Abdullah El-Erian stated that: the words ‘in force’…meant that the treaty had been freely consented to, did not derogate from fundamental principles of international law and had not been secured by fraud or coercion. Thus the words conveyed that the instrument met the requirements for essential validity laid down in the draft.77 Similarly, Ago declared that ‘…if a treaty was “in force”, it must be “valid ”; if it was not “valid ”, in was not “in force”’.78 Once again, the matter came up during the Vienna Conference by way of a draft amendment which would have replaced the term ‘in force’ with the expression ‘valid’. At this juncture, numerous delegations insisted that a treaty had to be valid to be deemed ‘in force’. Eventually, the original text was retained as the Drafting Committee considered that the divergence of opinions was not based on a substantive issue but on one of drafting. That argument convinced the proponents of the amendment, which was consequently withdrawn.79 19. It thus follows that the application of Article 26 of the Convention is subordinated to all the provisions of the Convention relating to the validity and invalidity of treaties (Arts 42– 53).80 In this manner, what the doctrine had sometimes characterized as ‘exceptions’ to the rule pacta sunt servanda—such as invalidity through the violation of provisions of domestic law concerning the capacity to conclude treaties, error, fraud, corruption of a representative of a State, coercion of the representative of a State or of the State itself, and the conflict of a treaty with a peremptory norm of general international law at the time of its conclusion—turned out to be modalities of its application, given that the treaty had to be valid.

The rule applies solely to treaties the provisions of which are operative in the particular case 20. The matter of validity must be distinguished from cases where the treaty contains obligations which are subordinated to a suspensive condition. In those cases, the treaty may be both valid and in force but inapplicable because its provisions are not operative (p. 670) before the condition is fulfilled,81 as, for example, in the case of treaties which are inoperative due to the activation of a si omnes82 clause. The same holds true if the effectiveness of the treaty is affected by a suspensive condition or a resolutory condition.

The rule applies solely between parties to the treaty 21. For the norm to be applicable, the States concerned must be and continue to be ‘parties’ to the treaty.83 It is important to remember that according to Article 2 of the Convention: 1. For the purposes of the present Convention:… (g) ‘party’ means a State which has consented to be bound by the treaty and for which the treaty is in force The meaning of ‘State’ was not specifically debated during the travaux préparatoires of the Convention, other than to recall that the rule ‘pacta sunt servanda’ was binding upon all branches of government: executive, legislative, and judicial.84 In the Third Report by Sir Humphrey Waldock, paragraph 3 of the draft Article (then Art. 55) set out that the pacta sunt servanda rule applied to the territory of every State covered by the scope of a treaty because of the State's authorization, and to every State to which the provisions of a given treaty applied due to the fact that treaties create rights or obligations for third States or create objective regimes. A consensus rapidly arose from the discussion in favour of removing the paragraph and referring the matter to the Articles relating to the effect of treaties on third parties.85 The issue was never discussed further, but it does not seem questionable that, even if the effects with regard to third parties were to be explained through the eventual role of a collateral agreement, it would still fall within the scope of the rule pacta sunt servanda.

C. Foundation of the rule pacta sunt servanda 22. Different foundations of the pacta sunt servanda rule were advanced by the doctrine. At the ILC, Sir Gerald Fitzmaurice overtly advocated in favour of consent. Subsequently, Sir Humphrey Waldock, without directly addressing the issue, ascribed a determinative role to good faith. The members of the Commission only rarely positioned themselves with regard to this aspect of the matter.

Consent as foundation 23. This point of view has long had many supporters. The draft Convention by the Harvard Law School already considered that ‘treaties are binding only because the parties to them have freely consented to be bound by them and not because of any obligation resulting from some superior law’.86 In his First Report to the ILC on the law of treaties, (p. 671) Sir Gerald

Fitzmaurice saw the consent given by States as the foundation of the obligatory character of treaties (Art. 4—Ex consensu advenit vinculum).87 Many subscribed to this viewpoint, including Manfred Lachs, who saw the agreement of the State as the basis for the rule.88 Incidentally, the ICJ also took a position to that effect: It is…a generally recognized principle that a multilateral convention is the result of an agreement freely concluded upon its clauses and that consequently none of the contracting parties is entitled to frustrate or impair, by means of unilateral decisions or particular agreements, the purpose and the raison d'être of the convention.89

References

Good faith as foundation? 24. Other authors considered the rule a simple application of the principle of good faith.90 At the ILC, Antonio de Luna clearly supported the view that: …[the concept of good faith] was important not only as a rule for interpreting a treaty, but as the very foundation of the principle pacta sunt servanda.…although in international practice States had always recognized that once they had declared their will together with other States they were bound by the declaration, that was not a requirement of logic; for why should past will prevail over future will? It was a requirement of the principle of good faith, without the observance of which no society could exist.91 Further, de Luna considered ‘the principle of good faith as even more important that the rule pacta sunt servanda, which was one of the consequences of good faith in international relations’.92 By contrast, Mustapha Kamil Yasseen opposed this notion: ‘[t]he obligation laid down in paragraph 2 derived from the idea that the treaty was mandatory; he was therefore reluctant to regard that obligation as a consequence of the idea of good faith’.93 Similarly, Radhabinod Pal highlighted that ‘[g]ood faith was in essence a matter of conscience and was too subtle and imprecise a concept to be taken seriously as a basis for international order’.94 25. Although the matter regarding the foundation of the rule was never directly broached by the Commission, it was indirectly introduced during the discussion of paragraphs 1 and 2 of draft Article 55, presented by Sir Humphrey Waldock. Paragraph 1 has already been quoted: 1. A treaty in force is binding upon the parties and must be applied by them in good faith in accordance with its terms and in the light of the general rules of international law governing the interpretation of treaties.95 Paragraph 2 added the issue of good faith: 2. Good faith, inter alia, requires that a party to a treaty shall refrain from any acts calculated to prevent the due execution of the treaty or otherwise to frustrate its objects.96 (p. 672) 26. The first idea—included at the end of paragraph 1, that interpretation in good faith is an essential element to the application of treaties—originated from the fear expressed by the Rapporteur that a stricto juris interpretation of the wording of a treaty may lead to a violation of its spirit.97 This part of the clause, supported by Verdross98 and Bartoš,99 was, by contrast, countered by other members of the Commission. They considered that the issue of interpretation should be treated elsewhere in the draft and not under the rule pacta sunt servanda, as doing so would weaken the principle.100 Eventually, both the Rapporteur and the Commission endorsed Ago's proposition, according to which it was sufficient for paragraph 1 ‘to say that the treaty was binding upon the parties and must be applied by them in good faith’.101 27. The second idea, embodied in paragraph 2, came under criticism by the majority of the members of the Commission. It was criticized for only covering the negative aspects of the application of the treaty and for leaving unresolved the question of its positive application. Numerous members demanded its deletion.102 In particular, Yasseen justified it as follows: What [is] said in paragraph 2 follow[s] from the binding force of the treaty, and there [is] no reason to mention that consequence rather than the others.103 The Rapporteur eventually decided to combine both paragraphs.104 The modified text returned by the Drafting Committee read as follows: A treaty in force is binding upon the parties to it and must be performed by them in good faith. [Every party shall abstain from any act incompatible with the object and purpose of the treaty.]105 The words in square brackets were received with almost unanimous reluctance, as the majority of members hoped for a clear, short, and precise text. Their abandonment was consummated at the following meeting;106 when the amended text was returned by the Drafting Committee, on 6 July 1964, it was adopted by 16 votes to 0, with 2 abstentions (Paredes and Bartoš).107 The issue resurfaced in 1966, when two governments demanded the reinsertion of the phrase in square brackets.108 Roberto Ago disposed to that proposition by stating that: (p. 673) When a treaty was in force, it must be performed in good faith, and States parties were obliged not only to refrain from acts that might prevent its application,

but also to apply it in full. The proposed addition was therefore superfluous, and apart from the fact that it might give rise to misunderstanding, it would make the text less concise and less forceful than the Commission had intended.109 Put to the vote again in 1966, the unchanged text was adopted by 14 votes to 0.110 That formulation remained identical until the final adoption of the text at the Vienna Conference. In any event, it follows from this long controversy that good faith is the companion to the rule pacta sunt servanda, but not its source.

A fundamental axiomatic norm as foundation? 28. For some authors, the principle pacta sunt servanda is a postulate, a fundamental, indemonstrable norm relating to every agreement. Dionisio Anzilotti expressed this point of view in the following terms: The obligatory force of those norms derives from the principle that States must respect agreements concluded between them, i.e. pacta sunt servanda. This principle, precisely because it is at the basis of the norms under discussion, may not be the object of an ulterior demonstration from the standpoint of those norms themselves. It must be considered an objective, absolute value or, in other words, as the first, indemonstrable hypothesis to which this order, as any other order of human knowledge, necessarily pertains. Every legal order consists of a complex of norms which derives its obligatory character from a fundamental norm, to which they all are directly or indirectly linked. The particular fundamental norm determines which norms compose a given legal order and pulls them together into a unified system. What distinguishes the international legal order is that, in the international order, the principle pacta sunt servanda is not based, unlike domestic law, on a superior norm; it is itself the supreme norm.…111 From a normative standpoint, which is the view pertaining to the science of law, the problem may be expressed in the following terms: why must international treaties be observed? The answer, as it is already know, is given by the rule pacta sunt servanda. States must reciprocally behave in the agreed manner; original norm beyond which it is impossible to find another norm explaining its legal character, and which subsequently is taken by the science of law as an indemonstrable hypothesis or postulate.112 This was also the position taken by Kelsen who, in his first writings, saw the pacta sunt servanda rule as the Grundnorm of international law.113 Subsequently, he hesitated regarding the status to be given to the norm, between a customary norm and a ‘hypothetical legal norm’: because the rule of the compliance with treaties, basis of voluntary international law, is indeed a rule of ‘natural’ law; that is, an objectively valid legal principle, be it as a customary rule or as a legal hypothesis,114 (p. 674) to finally place the Grundnorm as pertaining to a different concept and simply according to the rule pacta sunt servanda the status of a customary norm: International law consists of…norms originally created by way of custom. They are the norms of general international law.…Among them, the norm known as pacta sunt servanda is of special significance. It empowers the subjects of the international legal community [namely, the individual states] to govern their behaviour by means of treaties…creating norms by way of the declared agreement of duly authorized organs of two or more states, norms that impose obligations on, and grant rights to, the states entering into the treaty.…The basic norm of international law…must be a norm that establishes custom—the reciprocal behavior of states—as a law-creating material fact.115 Jan Verzijl also supported the proposition that the rule is an improvable axiom.116 Similarly, again, Jean Combacau noted that: …the conventional edifice juxtaposes binding conventions which emanate from sovereign States, and no concept can better bring together those elements than the principle pacta sunt servanda (what has been consented to must be respected); a metajuridical principle more than a rule of law, the basic axiom without which no legal assertion may be taken seriously and which imposes on subjects of law that they consider as law that to which they have agreed to be law.117 For his part, Georges Scelle considered that the basis for the validity of treaties lay solely on social necessity and objective law, conceived as a superior principle ante-dating the will or the agreement between contracting States.118 The idea of a fundamental norm was criticized by Gregory Tunkin in the following manner: The norms of international law result from an agreement between States. However, that does not mean that all of international law rests on the principle pacta sunt servanda as some sort of ‘fundamental’ or ‘original’ rule. In reality, international law has not in any way developed from some ‘fundamental norm’. The principle pacta sunt servanda itself has evolved as a customary rule among many. It is intimately linked to principles such as those of the respect for the sovereignty of States, for equal treatment in law, etc. Like other fundamental principles of contemporary international law, they are connected and influence each other. They express and legally establish the fact that it is sovereign States which are engaged in contemporary international 119

relations.119

A principle of non-contradiction 29. In this respect, Charles Chaumont likened good faith to the logical principle of noncontradiction: The principle of good faith contains the rule pacta sunt servanda but it does not entirely coincide with it, in the sense that the rule cannot be considered an application of the principle. The latter rests on the logical notion of non-contradiction, that a State cannot want something and its contrary at the same time.120 30. The ILC abstained from taking a position on questions of legal theory concerning the basis for the principle pacta sunt servanda. As discussed infra, the Vienna Conference (p. 675) equated the two principles of freedom of consent and of good faith with the pacta sunt servanda rule, by inscribing them side by side in the preamble to the Convention.

D. Content of the rule 31. According to Article 26 of the Convention:

Pacta sunt servanda Every treaty in force is binding upon the parties to it and must be performed by them in good faith. Before delving into the exact content of the rule, it is not without interest to examine the placement of the Article setting out the rule in the codification draft. After clarifying this point, the two distinct concepts embodied in the pacta sunt servanda rule will be analysed; on the one hand, that every treaty possesses an obligatory character for the parties; and on the other, that the treaty must be performed in good faith. It can be concluded that, based on the treatment given to the rule by both the Commission and the Conference, they deemed it to be a customary rule.

Placement of the Article 32. There were many doubts regarding the placement of the Article. Formulating the rule at the beginning of the Convention would have meant granting it a fundamental locus, which would have governed the codification process as a whole; conveying it in the part relating to the performance of the treaty would have ascribed to it only a limited empirical reach. In the First Report on the law of treaties by Sir Gerald Fitzmaurice, the pacta sunt servanda rule was placed in the preliminary Articles of the draft.121 In the Waldock report, the text containing the rule was situated rather far into the draft, as the introduction to the chapter relative to the performance of the treaty (Art. 55). The Israeli government suggested that the rule should be introduced at the beginning of the draft Articles rather than in the chapter relative to the performance of the treaty. It invoked the fact that the rule reached beyond the simple application and effects of treaties and, particularly, that it applied to the draft Article itself.122 Other members of the Commission expressed opinions along the same lines.123 Eventually, a compromise was reached through a proposal by the Special Rapporteur, which considered that the question must be treated as soon as the Introduction (Part I) and that the issues regarding conclusion and entry into force (Part II) would also be introduced.124 This is what was done. The formally remodelled text was placed in the draft, as in the Vienna Convention of 1969, in ‘Part III—Observance, Application and Interpretation of Treaties’, ‘Section 1—Observance of Treaties’ and before ‘Part IV—Amendment and Modification of Treaties’ and ‘Part V— Invalidity, Termination and Suspension of the Operation of Treaties’. (p. 676) 33. The Special Rapporteur, Sir Humphrey Waldock, proposed, additionally, to recall the importance of the principle in the preamble to the draft Convention.125 This position was adopted in its principle by the Commission in 1966,126 which was not competent itself to formulate the wording of the preamble; it fell to the Diplomatic Conference to draft it.127 However, the Commission's report expressly wished for this outcome.128 The paragraph of the preamble adopted at the Vienna Conference indissociably combined three fundamental aspects: ‘Noting that the principles of free consent and of good faith and the pacta sunt servanda rule are universally recognized’.

The obligatory character of the treaty to the parties: ‘Every treaty is binding upon the parties to it’ 34. In his Fourth Report, Sir Gerald proposed an Article 4 that read as follows: A treaty being an instrument containing binding undertakings and creative of vested rights, the parties are under a legal obligation to carry it out.129 This wording responded to abundant State practice130 and to numerous arbitral awards or court judgments, such as: • The Van Bokkelen v Haïti (1888) case: treaties of every kind, when made by the competent authority, are as obligatory upon nations as private contracts are binding upon individuals,…and these are… to be kept with the most scrupulous good faith; 131

• The Metzger and Co v Haïti (1900) case: It need hardly be stated that the obligations of a treaty, are as binding upon nations as are private contracts upon individuals; 132 • The Designation of the Workers' Delegate for the Netherlands at the Third Session of the International Labour Conference case, Advisory Opinion of 31 July 1922: The engagement contained in the third paragraph is not a mere moral obligation. It is a part of the Treaty and constitutes an obligation by which the parties to the Treaty are bound to one another. 133

References 35. The undisputed reception of the obligatory character of treaties to the parties results particularly from the fact that States normally honour their engagements. In the (p. 677) relatively rare case where States try to repudiate them, it is worth noting that the attempt is always accompanied by a claim that a precondition to the application of the rule has disappeared, thus affecting either the effectiveness of the treaty, its validity, or its obligatory character in the particular case.134 It may suffice to recall some classic examples. • On 19–31 October 1870, by way of the famous Gortchakoff circular, Russia announced that it repudiated certain provisions of the Treaty of Paris of 18–30 March 1856 on the status of the Black Sea. It invoked violations of the treaty on the part of the other contracting parties and a change of circumstances. The other powers protested and eventually, while conceding to Russia on the substance, were able to funnel the desired modifications into a protocol. It was on that occasion that—as the homage vice pays to virtue—the pacta sunt servanda principle was solemnly recalled in the aforementioned protocol of 17 January 1871. 135 • A British protest accompanied the Austrian decision of 6 October 1908 to annex Bosnia-Herzegovina over which, according to the terms of the Berlin Treaty, the AustroHungarian Empire solely possessed administration powers. 136 • At the end of December 1958, the Soviet Union unilaterally declared null the Allied agreement on Berlin and demanded that the status of the city be changed to that of a free city. The North Atlantic Council reacted through a communiqué on 16 December 1958, which stated that ‘no State has the right, by itself, to free itself unilaterally from its contractual obligations. The Council declares that such a procedure destroys the natural trust between nations which represents one of the foundations of peace’. 137 From all this, it can be concluded that the rule of the obligatory character of a treaty to the parties is a well-established norm of general international law.

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The obligation to perform the treaty in good faith 36. In turn, this obligation is composed of two elements: on the one hand, the determination of the object which must be performed (the treaty); and, on the other, the determination of the manner in which the performance must occur (in good faith). The connection between the obligation to perform the treaty and good faith has sufficiently been repeated in practice so as to make it unnecessary to turn our attention to this issue at considerable length.

The object of the performance: the treaty 37. The pacta sunt servanda rule is a formal requirement. ‘Sunt servanda’, declares the Latin formulation. It is a command to perform the obligation arising from the pactum. Nevertheless, one may wonder whether—when the word ‘treaty’ is used—it refers to the instrument (the instrumentum) or to the obligations it contains (the negotium). Sir Gerald Fitzmaurice, in his Fourth Report to the ILC, conveyed that obligation in the following manner: (p. 678) 1. A treaty being an instrument containing binding undertakings and creative of vested rights, the parties are under a legal obligation to carry it out.138 That formulation was thus closer to the negotium than to the instrumentum. In other words, if there was an obligation to perform the pactum, it was because it contained obligatory engagements (obligations or rights). However, it is necessary to go beyond the negotium/instrumentum dichotomy, or, to recapture the distinction drawn by Paul Reuter,139 between ‘act’ and ‘norm’. Both aspects must be the object of the observance. The parties must perform the obligations ensuing both from the provisions relating to the mechanism of the juridical act constituting the treaty and the substantive norms contained in it. 38. Diplomatic and judiciary practice calling for the observance of treaties is particularly abundant. In the arbitral award of 30 April 1990, the Rainbow Warrior case, the arbitral tribunal specifically invoked Article 26 as being applicable to the case. The issue under consideration was whether the violation of a treaty was a matter related to the law of treaties or to the law of international responsibility. The Tribunal held that: both the customary Law of Treaties and the customary Law of State Responsibility are relevant and applicable. The customary Law of Treaties, as codified in the Vienna Convention, proclaimed in Article 26, under the title ‘Pacta sunt servanda’ that

Every treaty in force is binding upon the parties to it and must be performed by them in good faith. This fundamental provision is applicable to the determination whether there have been violations of that principle, and in particular, whether material breaches of treaty obligations have been committed.140

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The manner in which performance must take place: the observance of good faith 39. Sir Gerald Fitzmaurice, in his Fourth Report, adopted the following wording: 2. A treaty must be carried out in good faith, and so as to give it a reasonable and equitable effect according to the correct interpretation of its terms.141 The principle of good faith is a substantive principle which clarifies the interpretation of the obligation that must be performed. It took on a central role in Grotius' final chapter of his work The Law of War and Peace …comme le dit Cicéron, la Fidélité à tenir ce que l'on a promis est le fondement non seulement de tous les Etats, mais encore de cette grande Société qui embrasse toutes les Nations. Otez la bonne foi, il n'y aura plus de commerce entre les Hommes…142 (p. 679) International jurisprudence has frequently referred to good faith in the performance of treaties, as exemplified by various arbitral awards: • The award rendered by the Permanent Court of Arbitration on 7 September 1910 in the North Atlantic Coast Fisheries arbitration, which turned on the application of a treaty relating to the regulation by Great Britain of the fishing rights accorded to United States citizens in Canadian waters; 143 • The matter between Germany and Lithuania concerning the nationality of several people (Memel territory) (1937); 144 • The case concerning the filleting within the Gulf of St Lawrence (Canada v France) (1986). 145 As is the case with the PCIJ,146 the jurisprudence of the ICJ is particularly rich concerning the application of good faith in regard to treaties.147 As recently as 1997, the Court spoke as follows: Article 26 combines two elements, which are of equal importance. It provides ‘Every treaty in force is binding upon the parties to it and must be performed by them in good faith.’ This latter element, in the Court's view, implies that, in this case, it is the purpose of the treaty, and the intentions of the parties in concluding it, which should prevail over its literal application. The principle of good faith obliges the Parties to apply it in a reasonable way and in such a manner that its purpose can be realized.148 In his Third Report to the ILC, Sir Humphrey Waldock specified that ‘in commenting upon the rule it may be desirable to underline a little that the obligation to observe treaties is one of good faith and not stricti juris’.149 He proposed the following language to govern the subject:

Article 55.—Pacta sunt servanda 1. A treaty in force is binding upon the parties and must be applied by them in good faith in accordance with its terms and in the light of the general rules of international law governing the interpretation of treaties. (p. 680) 2. Good faith, inter alia, requires that a party to a treaty shall refrain from any acts calculated to prevent the due execution of the treaty or otherwise to frustrate its objects.150 In its report of 1964,151 the Commission refined the text of the draft Article by presenting it in the following form, which remained unchanged until its adoption at the Vienna Conference: A treaty in force is binding upon the parties to it and must be performed by them in good faith.

References 40. The second part of Sir Humphrey Waldock's proposal—‘that a party must abstain from acts calculated to frustrate the objects and purposes of the treaty’—was considered by the Commission as ‘implicit in the obligation to perform the treaty in good faith’.152 In its written comments, the Finnish government proposed to reintroduce in the text that ‘a party must abstain from acts calculated to frustrate the objects and purposes of the treaty’.153 A similar proposition was advanced by Turkey.154 The Rapporteur supported the Commission's position155 and the Article remained unchanged. Nevertheless, the concept of the interpretation of the treaty in good faith was inserted in Article 31(1) of the Convention. 41. The relation between good faith and pacta sunt servanda is, at first sight, demarcated by the preamble to the convention, which calls the former a principle and the latter a rule. As Sir Humphrey Waldock put it, ‘[t]he rule pacta sunt servanda is itself founded upon good faith’.156

This statement calls for clarification, taking the discussion to the basis and scope of the rule pacta sunt servanda. If the restrictive conception of the pactum adopted by the Vienna Convention is refuted, the scope of the good faith principle extends well beyond the treaty concerned. The work by Robert Kolb, currently the authority on the issue of good faith, clearly demonstrates this proposition.157 First of all, the principle of good faith already applies before the entry into force of the treaty.158 In addition, the principle of good faith governs all types of non-formal agreements. If the notion of pactum is broadly construed, it is the respect of the word given in an exchange of consents, which is at the same time the foundation of both the obligation to respect this promise and the way in which it must be respected (in good faith). For this reason, the same obligation of good faith operates with regard to resolutions of international organizations conceived as interstate agreements, for acquiescence, etc. This was certainly the position of Manfred Lachs, who favoured a broad conception of the pacta sunt servanda principle and who linked the principle of good faith to ‘every manifestation of an interstate agreement’.159 The ICJ established the same connection for unilateral acts. In the Nuclear Tests case of 1974, concerning formally and substantively unilateral acts, the Court considered that: One of the basic principles governing the creation and performance of legal obligations, whatever their source, is the principle of good faith.…Just as the very rule of pacta sunt servanda in the law of (p. 681) treaties is based on good faith, so also is the binding character of an international obligation assumed by unilateral declaration. Thus interested States may take cognizance of unilateral declarations and place confidence in them, and are entitled to require that the obligation thus created be respected.160 As Michel Virally emphasized: That dictum of the Court formulated a general principle that was quite analogous, for unilateral acts, to what pacta sunt servanda was for treaties. Its foundation was the same in the two cases, that of good faith.161 For Virally, as for the Court, the case was an application of the pacta sunt servanda principle applied by analogy, as it involved a unilateral act binding the State without consensual link, without pactum. Thus, a fortiori this should be the rule in any situation where the consensual link is established and where a tacit pactum clearly exists. In addition, it is worth noting that: • The Rapporteur of the ILC on unilateral acts similarly proposed the adoption in respect to such acts of a principle parallel to pacta sunt servanda, that he referred to through the expressions acta sunt servanda or declaratio est servanda. 162 As he—rightly or wrongly—contemplated to deal with unilateral acts solely outside any acceptance by third parties, his standpoint excluded, by definition, any notion of pactum. • In his report at the Institute of International Law, Michel Virally extended the obligation of good faith to the performance of political agreements. 163

References 42. Having answered the question of the difference between the scopes of the principle of good faith and of the rule pacta sunt servanda, it is unnecessary to examine which of the two, the principle or the rule, takes priority. The agreement resulting from that freedom of consent is binding upon the parties and must be performed in good faith. The three elements are indissociably linked. The rest is only talk.

Conclusion: customary character of the rule 43. It ensues from the previous exposition that, whatever the doctrinal opinions relative to the foundation of the rule or its scope in the relations between States, the Commission did not find it difficult to establish the content of the rule. And if an attempt to answer the classic question on codification is made, regarding whether the Commission proceeded from custom or from the progressive development of international law, it is undoubtedly the former proposition which was at work in this case.

E. Consequences of the rule 44. An examination of the travaux préparatoires of Article 26 shows that the commentaries regarding this Article mostly touched on its conditions of application and the (p. 682) consequences of the obligation to perform the treaty, as well as on the exceptions to the rule. 45. In this respect, regarding the conditions of application of the rule, several situations which did not affect the obligatory character of the treaty were identified. They were: (1) the succession of governments; 164 (2) the state of diplomatic relations 165 (a question now governed by Art. 63 of the Convention); (3) the question of the impact of territorial modifications on the treaty, subject to the provision on State succession (Art. 73 of the Convention). 46. Regarding the consequences of the obligation to perform the treaty, the Vienna Convention governs, by way of other provisions: • the fact that the treaty must be performed notwithstanding any contrary provision in the internal law of the State (Art. 27). International practice has long established that, if

a treaty to which a State has consented is contrary to its domestic law, it is incumbent upon that State to take, if required, any legislative measures necessary to perform its obligations, 166 to modify its legislation if needed, 167 or to take any necessary measures that must be observed by its citizens; 168 • the rules relating to the interpretation of the treaty (Art 31–3); • the fact that it cannot be terminated by way of unilateral repudiation (rules on the denunciation of a treaty) 169 (Arts 56–7); • the matter of successive treaties (Arts 30, 58, and 59); • the effect of treaties on third parties (Arts 34–8), etc.

References

F. ‘Exceptions’ to the rule 47. It is mostly in the early modern period that exceptions to the rule were overtly advocated. From the fifteenth to the nineteenth century, some authors supported the idea that the pacta sunt servanda rule could be set aside in certain circumstances; for instance to protect the superior interests of princes or their States (Machiavelli, Hobbes, Spinoza, Hegel) or owing to a state of necessity (eg Jean Bodin).170 In modern times, it was often suggested that the rule was relative and included several exceptions because of the existence of other rules governing the treaty regime. The following ‘exceptions’ have been mentioned:(p. 683) • the principle of the hierarchy of norms: Article 103 of the Charter and jus cogens; • the rules concerning the vices of consent; • the failure to perform by the other party; • the impossibility to perform; • the rebus sic stantibus clause, etc. It was particularly the last rule that unleashed the most vivid discussions. The question was brought up at both the ILC and the Sixth Committee.171

References 48. After the work of the Vienna Conference, the different ‘exceptions’, as it has been shown supra,172 are nowadays considered not ‘exceptions’ to the rule, but modalities of its scope or application, by taking into consideration other rules of the law of treaties regarding the entry into force, validity, termination, etc. which are integrated in the different chapters of the treaty regime and which are now inseparable of the pacta sunt servanda rule itself. In this respect, the wording adopted by Sir Gerald Fitzmaurice in his First Report to the ILC on the law of treaties, if it had been followed, would have had the merit to properly show the conditionality of the rule:

Art. 5. Pacta sunt servanda 1. Subject to the provisions of the present code, States are bound to carry out in good faith the obligations they have assumed by treaty.173 The reason for the removal of this phrase is unclear, as the restraints which temper the rule result less from actual exceptions than from the application of other rules of the law of treaties. 49. The only true exceptions on which the Vienna Convention did not take a stand were, on the one hand, aggression, which Article 76 does not prejudge, avoiding deciding the issue in one sense or another; and, on the other, the state of necessity which, in contrast, the Commission discussed in its draft Articles on state responsibility. A word of clarification is undoubtedly necessary with regard to these two questions. Regarding aggression, it was sustained that the pacta sunt servanda principle need not be respected in relation to lawful sanctions on an aggressor, thus dispensing the victim States with the obligation to respect certain treaties concluded with the aggressor. As regards the state of necessity, even if it had often been invoked as an exception to the rule pacta sunt servanda, it is, in the law of responsibility, a circumstance which eliminates the responsibility resulting from an unlawful act. Thus, strictly speaking, it is less a matter of an exception to the obligation to respect treaties than of a circumstance precluding the wrongfulness of the State's violation in the exceptional and restrictive circumstances where that excuse is admitted.174

G. Determinations and sanctions of breaches of the rule 50. It is commonplace for a State to invoke situations where a violation by another would dispense that State with the application of the pacta sunt servanda rule. The (p. 684) question is to know whether it is sufficient to invoke such a situation to be relieved from the application of the rule. This point was incidentally evoked at the ILC by Mr Tsuruoka, who in this respect expressed the opinion that ‘as long as a treaty was in force and its invalidity had not been established, it must be performed by the parties in good faith’,175 which meant that, in his opinion, it was not sufficient for a party to sustain that the treaty was null as an excuse for refusing to perform it. Thus, it was still necessary that the cause invalidating the treaty be established.

51. This delicate question is dealt with in a different section of the Convention, particularly in Articles 65 and 66, governing the procedure to be followed if the validity of a treaty, its termination, the withdrawal of a party, or the suspension of its application were to be challenged. The ICJ, for its part, was prompted to caution in its judgment in the GabčíkovoNagymaros Project case, regarding the possibility to invoke the termination of a treaty on the grounds that it had been breached. The Court noted: Finally, Hungary maintained that by their conduct both parties had repudiated the Treaty and that a bilateral treaty repudiated by both parties cannot survive. The Court is of the view, however, that although it has found that both Hungary and Czechoslovakia failed to comply with their obligations under the 1977 Treaty, this reciprocal wrongful conduct did not bring the Treaty to an end nor justify its termination. The Court would set a precedent with disturbing implications for treaty relations and the integrity of the rule pacta sunt servanda if it were to conclude that a treaty in force between States, which the parties have implemented in considerable measure and at great cost over a period of years, might be unilaterally set aside on grounds of reciprocal non-compliance. It would be otherwise, of course, if the parties decided to terminate the Treaty by mutual consent.176 Further, the Commission evoked the relation between the pacta sunt servanda rule and international responsibility. In his Third Report, Sir Humphrey Waldock proposed the following text as paragraph 4 of Article 55: The failure of any State to comply with its obligations under the preceding paragraphs engages its international responsibility, unless such failure is justifiable or excusable under the general rules of international law regarding State responsibility.177 As a matter of fact, the paragraph was met with little enthusiasm. With the exception of Kameel Yasseen, who was in favour of the text,178 the majority of the members favoured its elimination, deeming its first part as useless for establishing the obvious, ie that responsibility is a consequence of the violation of any international obligation, as its second part, which contemplated justifications and excuses specific to the law of responsibility therefore, implying that in those cases there was no longer an obligation to be respected.179 The Special Rapporteur was convinced by these arguments and decided to withdraw the text.180 The question of the relation between the law of treaties and international (p. 685) responsibility was broached by the arbitral award of 30 April 1990, in the Rainbow Warrior case. The Tribunal recalled that: the general principles of International Law concerning State responsibility are equally applicable in the case of breach of treaty obligation, since in the international law field there is no distinction between contractual and tortuous responsibility.181 New Zealand argued that the application of the pacta sunt servanda rule implied that when restitutio in integrum was possible, the State could not simply confine itself to pecuniary reparation: …at least in cases of treaty breach, what a claimant State seeks is not pecuniary compensation but actual, specific compliance or performance of the treaty, adding that if the party in breach were not expected to comply with the treaty, but need only pay monetary compensation for the breach, States would in effect be able to buy the privilege of breaching a treaty and the norm pacta sunt servanda would cease to have any real meaning.182 The tribunal did not accept this argument as it considered that in the particular case, France's obligation had expired.183

References 52. Thus, the Vienna Convention does not deal with sanctions for violations of the rule, which in consequence fall under the scope of general international law.

General conclusion 53. Article 26 of the Vienna Convention is certainly a fundamental Article of the law of treaties. However, it must be assessed within its context. At the present time, there are multiple valid reasons for not applying a treaty: because it is subject to a cause of invalidity, because it is not at all or no longer in force, because it does not apply to the particular case, because its effects are suspended between the parties, because it has expired, etc. Article 26 is inseparable of all other Articles of the Vienna Convention and must always be read in context. *

JEAN SALMON

Footnotes: 1 General Assembly, 22nd session, 6th committee, 974th meeting, 18 October 1967, p 98, paras 22–4 (Cuba); 980th meeting, 25 October 1967, p 129, para. 43 (United Arab Republic). 2 General Assembly, 21st session, 6th committee, 909th meeting, 13 October 1966, p 47, para. 32 (Bolivia); General Assembly, 22nd session, 6th committee, 974th meeting, 18 October 1967, p 98, paras 22–4 (Cuba); 976th meeting, 20 October 1967, p 108, para. 30 (China); 978th meeting, 23 October 1967, p 118, para. 6 (Hungary); 981st meeting, 25 October 1967, p

137, para. 20 (Philippines). 3 General Assembly, 22nd session, 6th committee, 974th meeting, 18 October 1967, p 98, paras 22–4 (Cuba); 976th session, 20 October 1967, p 107, para. 23 (Czechoslovakia). 4 General Assembly, 22nd session, 6th committee, 975th meeting, 19 October 1967, p 104, para. 18 (Yugoslavia); 980th meeting, 25 October 1967, p 128, para. 29 (Bolivia); 981st meeting, 25 October 1967, p 138, para. 29 (Ecuador). 5 M. Sibert, ‘The Rule Pacta Sunt Servanda From the Middle Ages to the Beginning of Modern Times’, Indian Yearbook of Int'l Affairs, 1956, vol. 5, pp 219–26; J. B. Whitton, ‘La règle Pacta sunt servanda’, RCADI, 1934-III, vol. 49, pp 160–74; M. Lachs, ‘Pacta sunt servanda’, Encyclopedia of Public International Law (Amsterdam: Elsevier, 1984), vol. 7, pp 364–5; H. Wheberg, ‘Pacta sunt servanda’, AJIL, 1959, pp 775 ff. 6 C. W. Jenks, The Common Law of Mankind (London: Stevens & Sons, 1958), pp 143–5; J. B. Whitton, supra n 5, pp 164 ff. 7 E. Vattel, Le droit des gens, book II, ch. 15, s 218. 8 Article 5, para. 2 of the Draft, Institute of International Law, Annuaire, 1921, vol. 28, p 208. 9 Harvard Law School, Research in International Law, Part III, Law of Treaties, AJIL, Supplement 1935, vol. 29, p 977: ‘A State is bound to carry out in good faith the obligations which it has assumed by a treaty (pacta sunt servanda)’. 10 Report of the ILC on the work of its 1st session (1949), Official Records, General Assembly, 4th session (A/925). 11 GA Res. 2625 (XXV). 12 British and Foreign State papers, vol. 61, pp 1198–9, in 9 AJIL 4 (October) 959–62 (1915) at p 962. The protocol finds its origin in the attempt by Russia unilaterally to abrogate certain provisions of the Treaty of Paris of 30 March 1856 on the Turkish Straits, see infra para. 35. 13 L. le Fur and G. Chklaver, Recueil de texts de droit international public, 1934, p 872 (reproduced in Appendix E: Germano-Czechoslovak agreement); LNTS, vol. 54, p 341 and for the agreement with Poland, ibid, p 327. 14 M. O. Hudson, International Legislation, vol. 4, p 2378; L. le Fur and G. Chklaver, supra n 13, p 951. 15 Cl.-A. Colliard and A. Manin, Droit international and histoire diplomatique. Documents choisis, Book 1, II (Paris: Montchrestien, 1970), p 809; UNTS, vol. 119, p 49. 16 Harvard Law School, supra n 9, p 977. 17 See the explanation by Sir Gerald Fitzmaurice, Fourth Report on the Law of Treaties, A/CN.4/120 of 17 March 1959, YILC, 1959, vol. II, p 37. 18 See particularly J. B. Whitton, supra n 5, pp 217–49; Bin Cheng, General Principles of Law as applied by International Courts and Tribunals (London: Stevens & Sons, 1953), pp 112–14; J. Kunz, ‘The Meaning and the Range of the Norm Pacta Sunt Servanda’, AJIL, pp 181 and 190; H. Kelsen, who, in his most recent writings, considers it one of the basic norms of customary international law, Théorie pure du droit (ed. de la Baconnière) (Neuchatel: 1953), p 164 or ‘Théorie du droit international public’, RCADI, 1953-III, vol. 84, pp 133–4: ‘[the treaty] applies the norm of general international law pacta sunt servanda and it creates obligations and rights which did not exist prior to the conclusion of the treaty’; P. Guggenheim, Traité de droit international public (Geneva: Georg, 1953), vol. I, p 9; R. Jennings and A. Watts, Oppenheim's International Law (9th edn, Harlow: Longman, 1996), vol. 1, Parts 2–4, para. 584, p 1206. It was the standpoint adopted by the doctrine of socialist States: M. Lachs, supra n 5, p 366; G. I. Tunkin, Droit international public (Paris: Pedone, 1965), p 139. 19 ILC, 727th meeting, 20 May 1964, para. 26, YILC, 1964, vol. I, p 28. 20 E. Kaufmann, ‘Règles générales du droit de la paix’, RCADI, 1935-IV, vol. 50, pp 515–16. At the Conference of Vienna, this view was only sustained by the delegate of Ecuador, Official Records, Summary Records, 2nd session, 12th plenary meeting, 6 May 1969, p 45, para 9. 21 It is shown below that those characteristics led part of the doctrine and the arbitral jurisprudence to extend the scope of the rule pacta sunt servanda to contractual relations between a State and private parties. 22 G. Ripert, ‘Les règles du droit civil applicables aux rapports internationaux’, RCADI, 1933II, vol. 44, p 601. 23 See infra. 24 De jure naturae and gentium, book III, ch. III, iv, paras 1 and 2. 25 Droit des gens, book II, ch. XII, para. 163. 26 H. Wehberg, supra n 5, pp 775, 782, and 783. 27 ‘La théorie du droit naturel depuis le XVIIIe siècle and la doctrine moderne’, RCADI, 1927III, vol. 18, p 439. 28 A. von Verdross, ‘Le fondement du droit international’, RCADI, 1927-I, vol. 16, pp 285–6. Allusion to the norm of Roman law ‘suum cuique tribuere’; ie ‘to give each his own’. While admitting the same origin to the rule, A. Decencière-Ferrandière considers that it follows from a superior rule of natural law, common to both international and domestic law; the search for the common good, Du principe ‘pacta sunt servanda’ considéré comme norme fondamentale du droit international (Barcelona: Missel-Lania Paxtot, 1931), pp 144–6. 29 See also, on this matter, infra, para. 43.

30 eg J. Combacau and S. Sur, Droit international public (4th edn, Paris: Montchrestien, 1999), pp 76–7 and 85; Nguyen Quoc Dinh, P. Daillier, and A. Pellet, Droit international public (7th edn, Paris: LGDJ, 2002), p 385, no. 250. 31 See Sir Gerald Fitzmaurice, Third Report on the Law of Treaties, citations quoted supra para. 17. 32 R. Kolb, La bonne foi en droit international public (Geneva, Paris: PUF, 2000), pp 86 ff. See also from the same author, ‘La bonne foi en droit international public’, RBDI, 1998/2, pp 674–6. 33 J. L. Kunz, supra n 18, p 185. 34 Cours de droit international (trans. G. Gidel) (1929), pp 67–9. 35 ‘Règles générales du droit de la paix’, RCADI, 1931-I, vol. 35, p 80. 36 S. Bastid, Les traités dans la vie internationale (Paris: Economica, 1985), no. 96, p 115. 37 ICJ, South West Africa Cases (Ethiopia v South Africa; Liberia v South Africa), Preliminary Objections, Separate Opinion under judgment of 21 December 1962, ICJ Reports 1962, p 411. 38 M. Lachs, supra n 5, p 370. See also, by the same author, ‘Some Reflexions on Substance and Form in International Law’, Transnational Law in a Changing Society, Essays in Honor of Philip C. Jessup (New York: Columbia University Press, 1972), pp 99 ff. 39 See J. Salmon, ‘Les accords solo consensu’, AFDI, 1999, pp 1 ff, and the practice cited. 40 S. Sur, ‘Quelques observations sur les normes juridiques internationales’, RGDIP, 1985, p 924. 41 J. Combacau, Le droit des traités, Collection ‘Que sais-je?’ (Paris: PUF, 1991), p 5. 42 The rule was, in his opinion, of much wider application than the law of treaties, as agreement between States underlay every norm of international law. But he would not, of course, object to its being stated with regard to treaties. (ILC, 727th meeting, 20 May 1964, YILC, 1964, vol. I, para. 14, pp 27–8). 43 ‘…the principle pacta sunt servanda might be taken in a broad sense as the basis of the binding force of any rule of international law, whether conventional or customary. But the members of the Commission were agreed that, in the particular context, it should be construed only in the strict sense as a fundamental rule of the law of treaties’ (ILC, 727th meeting, 20 May 1964, YILC, 1964, vol. I, p 28, para. 26). 44 Comments by Portugal, YILC, 1966, vol. II, p 332. 45 See infra para. 15. 46 See infra para. 21. 47 eg The Administrations of Posts and Telegraphs of the Republic of Czechoslovakia v The Radio Corporation of America, Arbitral Award of 1 April 1932: ‘in public law the sentence pacta sunt servanda will also apply, just as public interest requires stability as regards any arrangement legally agreed upon’ (AJIL, 1936, p 523); Saudi Arabia v Arabian American Oil Company (Aramco), 23 August 1958, ILR, vol. 27, pp 163–4; Sapphire International Oil Company v National Iranian Oil Company, 15 March 1963, ILR, vol. 62, pp 170 and 190; BP Exploitation Company (Libya) Limited v Government of the Libyan Arab Republic, Arbitral Award of 10 October 1973; ILR, vol. 53, p 332; Texaco Overseas Petroleum Company and California Asiatic Oil Company v The Government of Libyan Arab Republic, 19 January 1977, ILR, vol. 53, p 464; Amco v Indonesia (Merits), 20 November 1984, para. 248, ILR, vol. 89, p 495. For a radical assertion of the idea that the rule pacta sunt servanda applies to State contracts, see Garcia Amador, Fourth Report on International Responsibility (A/C.N.4/119 of 26 February 1959, YILC, 1959, vol. II, pp 24 ff); H. Wehberg, supra n 5, p 786. 48 For a review of arguments against this theory, see L. Lankarani El-Zein, Les contrats d'État à l'épreuve du droit international (Brussels: Bruylant, 2001), esp. pp 139–58. 49 Report of the ILC, YILC, 1963, vol. II, pp 189–90. 50 Third Report, Sir Humphrey Waldock, A/CN.4/167 and Add.1–3, YILC, 1964, vol. II, p 5. 51 ILC, 16th session, 726th meeting, 19 May 1964, YILC, 1964, vol. I, Summary Records, p 24, para. 44. 52 Ibid, p 24, para. 51 and again at the 727th meeting, 20 May 1964, p 31, para. 58. 53 ILC, 16th session, 726th meeting, 19 May 1964, YILC, 1964, vol. I, Summary Records, p 24, para. 57. 54 Ibid, p 26, para. 79 and at the 727th meeting, 20 May 1964, pp 30–1, para 50. 55 ILC, 16th session, 727th meeting, 20 May 1964, YILC, 1964, vol. I, Summary Records, p 27, para. 10. 56 Ibid, p 30, para. 49. 57 Ibid, p 25, para. 66. 58 Ibid, p 26, para. 75. 59 Ibid, p 28, para. 15. 60 Ibid, p 29, para. 30 and pp 31–2, para. 60. 61 Ibid, p 29, para. 34.

62 Ibid, p 30, para. 41. 63 Ibid, p 29, para. 30. 64 Ibid, p 32, para. 69. 65 See the comments by the government of Cyprus (in relation to the invalidity or the termination) (YILC, 1966, vol. II, Part One, p 285 and YILC, 1966, vol. II, Part Two, p 59). 66 See in addition the commentary on those Articles in this work. 67 Comments by the Israeli government, YILC, 1966, vol. II, pp 64 and 340. 68 Report of the ILC to the General Assembly, YILC, 1966, vol. II, p 169. This viewpoint was again emphasized by several delegations during the Conference of Vienna: Official Records, Summary Records, 2nd session, 12th plenary meeting, 6 May 1969, Norwegian delegation paras 30 ff, Colombia paras 44–5, and the declaration by the Chairman para. 63. 69 See the commentary on those Articles in this work. 70 Reuter considered that ‘a supervening new rule of jus cogens automatically deprived of all force a treaty in conflict with that rule’, ILC, 849th meeting, 11 May 1966, YILC, 1966, vol. I, Summary Records, Part Two, p 37, para. 69. 71 Ch. Chaumont, ‘Cours général de droit international public’, RCADI, 1970-I, vol. 129, p 381: A State cannot perform in good faith a treaty that has become unenforceable, either because there has been a violation of the treaty by the other party, because performance is impossible or because a fundamental change of circumstances has occurred. In other words, the rule pacta sunt servanda does not have an abstract and absolute value. It can derive from changing factors capable of altering the substantive content of the international regime. In this manner, good faith may not come into play at every stage as it follows the fate of the rule, from its formation and performance to its termination. 72 PCIJ, Exchange of Greek and Turkish Populations, Advisory Opinion of 21 February 1925, Series B, no. 10, p 20. 73 Fourth Report by Sir Gerald Fitzmaurice of 17 March 1959, A/CN.4/120, YILC, 1959, vol. II, p 42. 74 Ibid, YILC, 1959, vol. II, p 42; emphasis added. 75 Report of the Commission to the General Assembly, YILC, 1959, vol. II, p 99. The preceding Article (Art. 3) contemplated the different elements of the notion of validity: ‘1. validity has three aspects—a formal aspect, a substantial aspect and a temporal aspect—all of which must be present, both in respect of the treaty itself, and in respect of each contracting party’ (ibid). 76 See the comments by the governments of Cyprus (YILC, 1966, vol. II, pp 59 and 285) and of Czechoslovakia (YILC, 1966, vol. II, pp 59 and 286). 77 ILC, 849th meeting, 11 May 1966, YILC, 1966, vol. I, Part Two, p 34, para. 22; supported by Tounkine, ibid, p 34, para. 41 and Yasseen, ibid, as well as Bartos, who invoked the possible application of jus cogens, ibid, p 36, para. 65. 78 Ago, ILC, 849th meeting, 11 May 1966, YILC, 1966, vol. I, Part Two, p 35, para. 47. 79 Official Records, Summary Records, 1st session, Committee of the Whole, 29th meeting, 18 April and 72nd meeting, 15 May 1968, paras 34 and 39 as well as Official Records, Summary Records, 2nd session, Committee of the Whole, 12th meeting, 6 May 1969, para. 11 (Ecuador), paras 46–7 (Bolivia), and para. 54 (Costa Rica). 80 See the commentary on those Articles in this work. 81 Report of the ILC, YILC, 1959, commentary on Art. 4, p 97, para. 1. 82 Ch. Rousseau, Principes généraux du droit international public (Paris: Pedone, 1944), p 356. 83 See ILC Report, 1959, Art. 4(2) ‘if…the State concerned has become and still remains a party to it’, YILC, 1959, vol. II, p 97. 84 Harvard Law School, supra n 9, pp 478–9. 85 See the discussions during the 726th and 727th meeting, YILC, 1964, vol. I, Summary Records, pp 20–32. 86 Harvard Law School, supra n 9, p 987. 87 Article 4 of the draft code on treaties, YILC, 1956, vol. II, p 108. 88 M. Lachs, supra n 5, p 364. 89 ICJ, Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion of 28 May 1951, ICJ Reports 1951, p 21. 90 A. von Verdross, ‘Règles générales du droit de la paix’, RCADI, 1929-V, vol. 30, pp 427 and 443; J. Basdevant, ‘Règles générales du droit de la paix’, RCADI, 1936-IV, vol. 58, pp 520–2; P. Chaillez, La nature juridique des traités internationaux, thesis (Paris: 1932), pp 79 and 95 ff. 91 ILC, 16th session, 727th meeting, 20 May 1964, YILC, 1964, vol. I, Summary Records, p 29, para. 34. 92 ILC, 16th session, 748th meeting, 18 June 1964, YILC, 1964, vol. I, Summary Records, p 163, para. 70.

93 ILC, 726th meeting, 19 May 1964, YILC, vol. I, p 26, para. 80. 94 ILC, 16th session, 727th meeting, 20 May 1964, YILC, 1964, vol. I, p 27, para. 5. 95 Third Report, Sir Humphrey Waldock, A/CN.4/167, YILC, 1964, vol. II, p 7. 96 Ibid. 97 Ibid, p 8 and specifications given ILC, 16th session, 727th meeting, 20 May 1964, YILC, 1964, vol. I, Summary Records, pp 28–9, para. 17. 98 ILC, 16th session, 726th meeting, 19 May 1964, YILC, 1964, vol. I, Summary Records, p 24, para. 56. 99 ILC, 16th session, 727th meeting, 20 May 1964, YILC, 1964, vol. I, Summary Records, p 30, para. 38. 100 Briggs: ILC, 16th session, 726th meeting, 19 May 1964, YILC, 1964, vol. I, Summary Records, p 24, para. 45; Elias: ibid, p 24, para. 52; Pal: ILC, 16th session, 727th meeting, 20 May 1964, YILC, 1964, vol. I, Summary Records, p 27, para. 7. 101 ILC, 16th session, 727th meeting, 20 May 1964, YILC, 1964, vol. I, Summary Records, p 29, para. 31. 102 eg Elias: ILC, 16th session, 726th meeting, 19 May 1964, YILC, 1964, vol. I, Summary Records, p 24, para. 53; Tounkine: ILC, 16th session, 727th meeting, 20 May 1964, YILC, 1964, vol. I, Summary Records, pp 27–8, paras 14 and 18; Ago: ibid, pp 28–9, para. 27. 103 Ibid, p 31, para. 52. 104 Ibid, p 32, para. 71. 105 ILC, 16th session, 748th meeting, 18 June 1964, YILC, 1964, vol. I, Summary Records, p 162, para. 52. The notion of ‘object and purpose of the treaty’ had been formulated by Paul Reuter, ILC, 16th session, 726th meeting, 19 May 1964, YILC, 1964, vol. I, Summary Records, p 26, para. 77. 106 ILC, 16th session, 749th meeting, 22 June 1964, YILC, 1964, vol. I, Summary Records, p 165, para. 8. 107 ILC, 16th session, 759th meeting, 6 July 1964, YILC, 1964, vol. I, Summary Records, p 232, para. 2. 108 The government of Finland (YILC, 1966, vol. II, pp 61 and 292) and of Turkey (ibid, pp 61 and 342), supported also by Greece and the United Kingdom: ILC, 849th meeting, 11 May 1966, YILC, 1966, vol I, Part Two, pp 33–4, para. 24. 109 Ago, ILC, 849th meeting, 11 May 1966, YILC, 1966, vol I, Part Two, pp 34–5, para. 38; Reuter, ibid, p 35, para. 39. 110 ILC, 867th meeting, 10 June 1966, YILC, 1966, vol. I, Summary Records, p 169, para. 3. 111 D. Anzilotti, Cours de droit international, 1st vol.: Introduction, Théorie générale (trans. Gidel) (Paris: Sirey, 1929), pp 43–4. 112 Ibid, p 65. 113 Hauptprobleme der Staatslehre (2nd edn, 1923), pp 123, 125, 174 ff. 114 ‘Les rapports de système entre le droit interne and le droit international public’, RCADI, 1926-IV, vol. 14, p 300. 115 H. Kelsen, Théorie pure du droit, supra n 18, pp 164 and 165. 116 International Law in Historical Perspective (Leiden: Sijthoff, 1968), vol. I, pp 244 and 254. 117 J. Combacau, supra n 41, p 5. 118 Précis de droit international (Paris: Sirey, 1932), vol. II, pp 336–7. 119 G. I. Tunkin, supra n 18, p 139. 120 Ch. Chaumont, supra n 71, p 381. 121 Article 5, YILC, 1956, vol. II, p 108. 122 Comments by the Israeli government, YILC, 1966, vol. II, pp 61 and 298. 123 Particularly Ruda, ILC, 849th meeting, 11 May 1966, YILC, 1966, vol I, Summary Records, Part Two, p 32, para. 9. 124 El-Erian, ILC, 849th meeting, 11 May 1966, YILC, 1966, vol I, Summary Records, Part Two, p 33, para. 20; Ago, ibid, pp 34–5, para. 35. 125 Ibid, p 37, para. 71 and YILC, 1966, vol. II, p 59. 126 YILC, 1966, vol. II, pp 210–11. 127 Lachs, ILC, 849th meeting, 11 May 1966, YILC, 1966, vol I, Summary Records, Part Two, p 32, para. 14; Rosenne, ibid, p 34, para. 29. 128 Report of the Commission, para. 5 of the commentary on the Article Pacta sunt servanda, renumbered Art. 23, YILC, 1966, vol. II, pp 210–11. That appeal was taken up by certain delegates at the 6th Committee: 906th meeting, 10 October 1966, p 29, para. 14 (Czechoslovakia) and 912nd meeting, 18 October 1966, p 66, para. 14 (Argentina). 129 YILC, 1959, vol. II, p 42. 130 See eg A. Ch. Kiss, Répertoire de la pratique française en matière de droit international public (Paris: CNRS, 1962), vol. 1, pp 161–75; J. B. Whitton, supra n 5, pp 231–41. 131 J. B. Moore, International Arbitrations, vol. II, p 1849.

132 J. B. Moore, Digest, vol. V, p 369. 133 PCIJ, Series B, no. 1, p 18. See also PCIJ, Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory, Advisory Opinion of 4 February 1932, Series A/B no. 44, p 24. 134 See particularly J. B. Whitton, supra n 5, pp 224–31. 135 See supra para. 4 and for the facts Lord A. McNair, The Law of Treaties (Oxford: Clarendon Press, 1961), pp 494–7. 136 Ibid, pp 499–500. 137 Department of State Bulletin, 1959, vol. 40, (4). 138 Article 4, para. 1, YILC, 1959, vol. II, p 42. 139 P. Reuter, ‘Le traité international, acte and norme’, Archives de la philosophie du droit, 1987, vol. 32, pp 111–18. 140 Paragraph 75 of the Award, RIAA, vol. XX, p 251. 141 Article 4, para. 1, YILC, 1959, vol. II, p 42. 142 As Cicéron said, the Fidelity to keep one's promises is not only the fundament of every State, but also of that great Society that embrace every Nations. Remove good faith, and there will be no more commerce between Humans (Own translation; H. Grotius, Le droit de la guerre and de la paix (trans. Jean Barbeyrac) (1724), book III, ch. 25, s 1. See also Bynkershoek, Quaestionum juris publici, libri duo, II, cap. IX: ‘Pacta privatorum tuetur jus civile, pacta principium bona fides’. 143 The Permanent Court of Arbitration, after invoking ‘the principle of international law that treaty obligations are to be executed in perfect good faith’, added: ‘from the Treaty results an obligatory relation whereby the right of Great Britain to exercise its right of sovereignty by making regulations is limited to such regulations as are made in good faith, and are not in violation of the Treaty’ (RIAA, vol. XI, p 188). 144 By virtue of the principles of international law, a State must fulfill its international obligations bona fide. And by virtue of that principle, Lithuania must quash a decision rendered by one of its organs (RIAA, vol. III, p 1751). 145 Whatever the stock capacity of a filleting trawler operating within the Gulf, any fishing exceeding the asigned quota to a given trawler should be considered as a breach of good faith capable of engaging France's responsibility, which as a party to the Agreement of 1972, has the duty to assure the scrupulous respect by its citizens of international engagements which it has entered into to their benefit (RIAA, vol. XIX, p 265). 146 See the following Opinions: Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory, Advisory Opinion of 4 February 1932, Series A/B, no. 44, p 28; Minority Schools in Albania, Advisory Opinion of 6 April 1935, Series A/B, no. 64, pp 19 and 20. 147 See the following cases: Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter), Advisory Opinion of 28 May 1948, ICJ Reports 1947–48, p 63; Rights of Nationals of the United States of America in Morocco, Judgment of 27 August 1952, ICJ Reports 1952, p 212. 148 ICJ, Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment of 25 September 1997, ICJ Reports 1997, pp 78–9, para. 142. 149 YILC, 1964, vol. II, p 7. 150 Ibid. 151 Ibid, p 176. 152 Ibid, commentary on Art. 55, p 177, para. 2. 153 YILC, 1966, vol. II, p 59. 154 Ibid and see Castrén, ILC, 849th meeting, 11 May 1966, YILC, 1966, vol I, Summary Records, Part Two, pp 33–4, para. 24. 155 YILC, 1966, vol. II, p 61. 156 Third Report on the Law of Treaties, commentary to Art. 55, para. 2, YILC, 1964, vol. II, p 7. 157 R. Kolb, supra n 32. 158 See the commentary on Art. 18 in this work. 159 ILC, 849th meeting, 11 May 1966, YILC, 1966, vol I, Summary Records, Part Two, p 33, para. 17. 160 ICJ, Nuclear Tests (Australia/France), Judgment of 20 December 1974, ICJ Reports 1974, p 268, para. 46. 161 M. Virally, ‘Panorama du droit international contemporain. Cours général de droit international public’, RCADI, 1983-V, vol. 183, p 197. 162 Report of the ILC on the work of its 50th session (1998), AG NU A/53/10, p 101, para. 141.

163 Conclusions by Rapporteur Michel Virally, reproduced following the resolution adopted by the Institut de droit international on 29 August 1983 at its session in Cambridge, ‘Textes internationaux ayant une portée juridique dans les relations mutuelles entre leurs auteurs and textes qui en sont dépourvus’, para. 6, Institute of International Law, Annuaire, 1984, vol. 60, II, p 288. 164 First Report by Sir Gerald Fitzmaurice, draft Art. 5, YILC, 1956, vol. II, p 108. 165 Fourth Report by Sir Gerald Fitzmaurice, draft Art. 4(4), YILC, 1959, vol. II, p 42. 166 A. Ch. Kiss, supra n 130, vol. I, n 172, pp 89–90. 167 Harvard Law School, supra n 9, p 985; PCIJ, Exchange of Greek and Turkish Populations, Advisory Opinion of 21 Feburary 1925, Series B, no. 10, p 20; PCIJ, Greco-Bulgarian ‘Communities’, Advisory Opinion of 31 July 1930, Series B, no. 17, p 32. 168 A. Ch. Kiss, supra n 130, vol. I, fn 173, p 90, fn 174, pp 91–4 and fn 174, pp 94–5. See also Harvard Law School, supra n 9, pp 977–8. 169 The practice is particularly rich. See A. Ch. Kiss, supra n 130, vol. I, nos 176 and 177; Lord A. McNair, supra n 135, pp 493 ff; Arbitral award of 7 April 1875 in the Chile-Peru case: It is a well established principle of international law that once a treaty possessing all the elements of validity has been formally performed, it may solely be modified by the authority and following the procedures which have contributed to its creation. (La Fontaine, Pasicrisie internationale, p 165). 170 See J. B. Whitton, supra n 5, pp 241–5. 171 Paredes, ILC, 16th session, 726th meeting, 19 May 1964, YILC, 1964, vol. I, Summary Records, p 25, para. 61; General Assembly, 20th meeting, 6th Committee, 851st meeting, paras 4 and 6 (Pakistan). 172 See supra paras 16 and 19. 173 YILC, 1956, vol. II, p 108. 174 See Art. 26 of the draft Articles on State responsibility for an illicit act committed internationally adopted by the Drafting Committee on second reading (A/RES/56/83 of 12 December 2001). 175 Tsuruoka, ILC, 849th meeting, 11 May 1966, YILC, 1966, vol. I, Part Two, p 36, para. 60. 176 ICJ, Case concerning the Gabčíkovo-Nagymaros Project, Judgment of 5 February 1997, ICJ Reports 1997, p 68, para. 114. 177 Third Report on the Law of Treaties, A/CN.4/167 of 3 March 1964, YILC, 1959, vol. II, p 37. 178 YILC, 1964, vol. I, Summary Records, 726th meeting, 19 May 1964, para. 81 and 727th meeting, 20 May, para. 81. 179 See YILC, 1964, vol. I, Summary Records, the interventions by Briggs (726th meeting, 19 May 1964, p 24, para. 48), Elias, ibid, p 24, para. 53, Verdross, ibid, p 25, para. 60, Tounkine, 727th meeting, p 28, para. 20, Bartos, 726th meeting, p 25, para. 71, Rosenne, ibid, p 24, para. 48, Pal, 727th meeting, p 27, para. 9, Tabibi, ibid, p 27, para. 13, Tsuruoka, ibid, p 28, para. 24, Ago, 727th meeting, p 29, para. 29, De Luna, ibid, p 29, para. 37, etc. 180 727th meeting, p 32, para. 73. 181 Paragraph 75 of the Award, RGDIP, 1990, p 851. 182 Ibid, p 860, para. 111. 183 Ibid, p 873, para. 114. * Professor Emeritus, Université libre de Bruxelles (ULB), Brussels, Belgium.

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Volume I, Part III Observance, Application and Interpretation of Treaties, s.1 Observance of Treaties, Art.26 1986 Vienna Convention Jean Salmon From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Travaux préparatoires — Pacta sunt servanda

(p. 686) 1986 Vienna Convention Article 26 Pacta sunt servanda Every treaty in force is binding upon the parties to it and must be performed by them in good faith. 1. Article 26 of the 1986 Vienna Convention takes up the text of Article 26 of the 1969 Vienna Convention. Nothing in the travaux préparatoires had been added to the preceding Convention. In his Fourth Report, the Special Rapporteur, Paul Reuter, mentioned Article 26 (pacta sunt servanda) among the provisions of the 1969 Vienna Convention that did not require any modification. He stated that ‘[t]hese are very general rules relating to the very essence of the conventional mechanism’.1 The report of the Commission to the General Assembly for 1977 is hardly less laconic: This text calls for no comment other than that it may be said to constitute a definition of the very essence of treaties, thus recognizing that international organizations are genuine parties to legal instruments which are genuine treaties, even if some differences exist between their participation and that of States.2 The only observation that had been made in session, before referral to the Drafting Committee, was that by Mr Calle y Calle who highlighted that, on this point, organizations conformed to the rule in an exemplary manner.3 The text came back without modification by the Drafting Committee and was adopted without changes at first reading.4 2. The text of various Articles including Article 26 was transmitted to States and certain international organizations for their observations. The Tenth Report of Professor Paul Reuter of April 1981 indicates that no observation had been made regarding Article 26.5 The text was again referred to the Drafting Committee without observations,6 came back without modifications, and was adopted at second reading.7 The report of the Commission to the General Assembly for 1981 limits itself to reproducing the same commentary as in 1977.8 The same is true for the 1982 report to the General Assembly.9 (p. 687) 3. The same occurred at the Conference of Vienna. The text was approved without a vote on 18 March 1986.10 4. For a commentary to this provision one should refer to the corresponding article in the 1969 Convention. *

JEAN SALMON

Footnotes: 1 A/CN.4/285 of 21 March 1975, YILC, 1975, vol. II, p 27, para. 3. 2 YILC, 1977, vol. II, Part Two, p 118. 3 ILC, 1435th meeting, 7 June 1977, YILC, 1977, vol. I, p 106, para. 35. 4 ILC, 1451st meeting, 1 July 1977, YILC, 1977, vol. I, p 199, para. 46. 5 A/CN.4/341 of April 1981, YILC, 1981, vol. II, Part One, p 64, para. 86. 6 ILC, 1673rd meeting, 17 June 1981, YILC, vol. I, p 157. 7 ILC, 1692nd meeting, 16 July 1981, YILC, 1981, vol. I, p 266. 8 YILC, 1981, vol. II, Part Two, p 141. 9 YILC, 1982, vol. II, Part Two, p 38. 10 Official Records of the United Nations Conference on the Law of Treaties between States and International Organizations or between International Organizations, vol. 1, 1st session, 5th plenary meeting, 18 March 1986, p 14, para. 67. * Professor Emeritus, Université libre de Bruxelles (ULB), Brussels, Belgium.

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Volume I, Part III Observance, Application and Interpretation of Treaties, s.1 Observance of Treaties, Art.27 1969 Vienna Convention Annemie Schaus From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Treaties, observance — Pacta sunt servanda — Customary international law — Travaux préparatoires — Treaties, entry into force

(p. 688) 1969 Vienna Convention Article 27 Internal law and observance of treaties A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46. A. General characteristics 689 Origins, purpose, and objective 689 Customary status 691 B. Scope of the Article 692 The notion of ‘internal law’ 692 Does the application of Article 27 require that the treaty be in force in internal law? 695 C. Effects of international law in internal law 697 The adaptation of internal law to the obligations deriving from the treaty 697 The recognition of superiority of international law over internal law? 700

Bibliography Aust, A., Modern Treaty Law and Practice (2nd edn, Cambridge: Cambridge University Press, 2007), p 138 Blanquer, M., L'article 5 du Traité CEE Recherches sur les obligations de fidélité des Etats membres de la Communauté (Paris: LGDJ, 1994), p 35 Brownlie, I., Principles of Public International Law (Oxford: Clarendon Press, 1998), p 435 Deards, E., ‘ “Curiouser and Curiouser”? The Development of Member State Liability in the Court of Justice’, EPL, 1997, p 117 Eisemann, P.-M. (ed.), L'intégration du droit international et communautaire dans l'ordre juridique national—Etude de la pratique en Europe (The Hague: Kluwer Law International, 1996) Fitzmaurice, G. G., ‘The General Principles of International Law Considered from the Standpoint of the Rule of Law’, RCADI, 1957-II, vol. 92, p 85 García de Enterría, E., ‘Le dénouement de l'affaire “Factortame”: La responsabilité civile du Royaume-Uni’ in M. Dony (ed.), Mélanges en hommage à Michel Waelbroeck (Brussels: Bruylant, 1999), p 355 Hostert, J., ‘Droit international et droit interne dans la Convention de Vienne sur le droit des traités du 23 mai 1969’, AFDI, 1969, p 117 Jacomy-Millette, A., L'introduction et l'application des traités internationaux au Canada (Paris: LGDJ, 1971), p 104 Lejeune, Y. and Brouwers, Ph., ‘La Cour d'Arbitrage face au contrôle de la constitutionnalité des traités’, JT, 1992, pp 671 de Mestral, A. L. C. and Verdon, Ch., ‘La conclusion et la mise en œuvre des traités dans les Etats fédérés’, Rapports canadiens au Congrès international de droit comparé (ed. Yvon Blais) (Montreal: Institut de droit comparé, 1990), p 443 Oliver, C. T., ‘The Enforcement of Treaties by Federal State’, RCADI, 1974-I, vol. 141, p 354 (p. 689) Nguyen Quoc Dinh, Daillier, P., and Pellet, A., Droit international public (8th edn, Paris: LGDJ, 2009), p 762, no. 848 Sicilianos, A., ‘State Liability for Breaches of Community Law and its Application within the Italian Legal System’, EPL, 1999, p 405 Snyder, F., ‘The Effectiveness of European Community Law: Institutions, Processes, Tools and Techniques’, MLR, 1993, p 19 Steiner, J., ‘The Limits of State Liability for Breach of European Community Law’, EPL, 1998, p 69 Theroux, E., ‘L'application du droit international en droit interne: aspects pratiques pour le juriste québécois’ (Quebec: Direction générale des affaires juridiques et législatives, 1997, unpublished) Turp, D., ‘La mise en œuvre du Pacte international relatif aux droits civils et politiques à la lumière de l'expérience du Canada et du Québec’, doctoral thesis, Université de Paris (Paris II), 1990, pp 117–49 Uyttendaele, M., Regards sur un système institutionnel paradoxal (Brussels: Bruylant, 1997), p 987 Velu, J., ‘Contrôle de constitutionnalité et contrôle de compatibilité avec les traités, Mercuriale de rentrée de la Cour de Cassation’, 1 September 1992, published in extracts in JT, 1992, p 629 —— and Ergec, R., La Convention européenne des droits de l'homme (Brussels: Bruylant, 1990), p 447 Verhoeven, J., ‘Le régime des traités dans l'Etat fédéral—II. Assentiment, autorité, publicité’, RBDI, 1994, p 58 Virally, M., ‘Sur un pont aux ânes: les rapports entre droit international et droit interne’, Problèmes de droit des gens. Mélanges offerts à Henri Rolin (Paris: Pedone, 1964), pp

488–505 de Visscher, Ch., La responsabilité des Etats (Leyde: Bibliotheca Visseriana, 1924)

A. General characteristics Origins, purpose, and objective 1. Article 27 relates to the binding force of a treaty: this binding force is determined solely by international law, which entails that the execution of a treaty by the parties cannot depend on their respective internal laws. This provision was conceived as the corollary of the fundamental rule contained in Article 26: the principle of pacta sunt servanda, according to which every treaty binds the parties and must be performed in good faith. Also, internal law cannot be invoked by a State to evade the binding force of a treaty and justify the nonperformance of conventional obligations. In general, the principle of the lack of effect of internal law as a justification for the non-execution of international obligations not only concerns conventional obligations but extends to all obligations imposed by international law on its subjects.1 2. If States have the obligation to implement their international conventional obligations, international law generally leaves them free to organize this implementation in the way most suitable to them, as long as the obligations are executed and the rights of third States safeguarded.2 On this point, the international legal order contains a renvoi to the internal legal order of each State. This is the principle of the indifference of the international (p. 690) legal order in relation to the mode of execution of international obligations in the internal legal order. For instance, according to the Court of Justice of the European Communities: When provisions of the Treaty or of Regulations confer powers or impose obligations on Member States for the purposes of the implementation of Community law the question of how such powers are to be exercised and whether the states may entrust the implementation of such obligations to specific national authorities is solely a matter for the constitutional system of each state.3 But international law requires a complete execution of its obligations in the internal legal order, independently of the means and of the organization of competences within the State for the implementation of international norms. The treaty must be executed, regardless of internal law, for the provisions of internal law cannot justify the non-performance of the State's international obligations.

References 3. This is a parallel principle to that of the international responsibility incurred by the holders of international rights and obligations, notably, the obligations derived from treaties.4 Indeed, the question of the breach of a treaty is inexorably linked to that of the execution of the obligations established in that treaty and that of the justification for their non-performance.5 The reference to internal law cannot be included within the causes capable of justifying the non-performance of obligations deriving from a treaty. When the holder of an international conventional obligation does not perform or does not correctly implement it in its internal legal order, it incurs responsibility in the international legal order. The principle of Article 27 also entails that once it is established that a State has breached an obligation deriving from a treaty, this State cannot rely on its internal law to justify the violation of the international obligation and the wrongfulness of its conduct. As established in Article 3 of the ILC Articles on State responsibility: The characterization of an act of a State as internationally wrongful is governed by international law. Such characterization is not affected by the characterization of the same act as lawful by internal law.6 Internal law cannot constitute an escape clause for the non-performance of a treaty and, consequently, for the responsibility that may follow. In either case, the object of the rule is identical: whatever the content of the internal law of a State party to a treaty, this law will have no effect on the international obligations of the State and the responsibility that may ensue from the non-performance of said obligations.7 The object of Article 27 is the (p. 691) avoidance of the possibility for a State to rely on its internal law to defend a breach of its conventional obligations and to eschew its international responsibility.

References

Customary status 4. The principle which prevents the State relying on provisions of or gaps in its internal law to eschew the binding force of a treaty and avoid compliance with its international obligations is, as highlighted by Sir Gerald Fitzmaurice, ‘one of the great principles of international law, informing the whole system and applying to every branch of it’.8 This rule has been confirmed countless times by case law.9 The Permanent Court of International Justice (PCIJ) referred to this principle on numerous occasions in the Advisory Opinion concerning The Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory; it said: a State cannot adduce as against another State its own Constitution with a view to evading obligations incumbent upon it under international law or treaties in force.10

The case law of the Court of Justice of the European Communities constantly applies this principle.11 This jurisdiction regularly states that: A Member State cannot plead the provisions or practices of its internal order in order to justify failure to observe obligations and time-limits arising from Community Regulations.12 The International Court of Justice (ICJ) affirmed the customary character of this rule in the case of Certain Questions of Mutual Assistance in Criminal Matters between Djibouti and France. The Court recognized ‘the rule of customary law reflected in Article 27 of the Vienna Convention on the Law of Treaties’, although it stated it to be inapplicable in the case.13 Similarly, the Inter-American Court of Human Rights affirmed the customary character of this rule in the case of López-Álvarez v Honduras.14

References 5. The corollary to the rule, which prevents a State from eschewing its responsibility for the failure to perform international obligations by relying on its internal law to (p. 692) contest the characterization of its act as internationally unlawful, has also attained the status of customary law. International courts and tribunals have applied this principle consistently.15 This aspect of the rule is included in the ILC draft Articles on State responsibility. The nuance of the Vienna Convention in relation to the ILC Articles resides in the fact that, according to Article 3 of the draft Articles, a State cannot invoke its internal laws to avoid the characterization of its act as internationally wrongful, whereas under Article 27 of the Vienna Convention the State cannot justify the unlawful act by hiding behind its internal law. This slight difference is explained by Ago in the commentary to the draft Articles on State responsibility;16 Ago had envisaged using a similar wording to that of the Vienna Convention in the draft Articles, and he proposed that the text of the provision read: ‘The municipal law of a State cannot be invoked to prevent an act of that State from being characterized as wrongful in international law’. This wording had the merit of clearly stating the purpose of the rule, which consists in avoiding the use by a State of its internal law to evade international responsibility. But the majority of the ILC members considered that the wording proposed by the Special Rapporteur had too strong a procedural undertone and was not appropriate for a statement of principle. Moreover, it was thought that such a formulation could wrongly be interpreted as a requirement by international law for a State to behave in conformity with its internal law. And if this were so, it would not be wrong to allow a State to invoke its internal law.17 It was thus considered preferable to avoid mentioning the possibility or impossibility of the invocation of internal law in the draft Articles, and Ago's proposed wording was rejected.18 The principle of impotence of the internal law to justify the non-performance of a treaty, as contained in Article 27, thus clearly reflects customary international law.19

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B. Scope of the Article The notion of ‘internal law’ 6. It is the internal law of a State as a whole that is not capable of justifying the nonperformance of obligations deriving from a treaty to which the State is a party. This justifies the choice of the expression ‘internal law’ rather than ‘internal legislation’ to include the internal legal system as a whole, even its gaps.20 A State cannot invoke the provisions of its internal law whether legislative, regulatory, or administrative, to justify the (p. 693) nonperformance of conventional obligations binding upon it.21 Equally, the State cannot invoke its constitutional provisions. The PCIJ expressly highlighted the impossibility of a State hiding behind its constitution to justify non-performance of international obligations.22 Similarly, in their objections to a reservation made by Guatemala to Article 27 with the purpose of excluding from the Article's reach the provisions of its Constitution,23 many States have underscored that this reservation was contrary to a universally accepted principle and was, for this reason, contrary to the object and purpose of Article 27 of the Convention.24 Similarly, a State cannot invoke a decision of its internal jurisdictions to escape the binding force of a treaty.25

References 7. In the same way, a State cannot invoke lacunas in its internal legislation or the nonexistence, in its national legal order, of provisions or modes of execution necessary for the implementation of an international obligation.26 This principle means, evidently, that a State cannot rely on the complexity of its internal legal order or difficulties in the performance of an obligation to evade responsibility. The Belgian government thus tried to invoke the difficulties created in its internal legal order by institutional reforms to justify the non-performance of certain European Directives.27 The Court of Justice of the European Communities stated on numerous occasions that arguments relating to a member State's internal laws, including the difficulties deriving from its federal organization, cannot be considered as constituting exceptional circumstances capable of justifying problems in the execution of the Directive concerned.28

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8. Federal States have often relied—in vain—on constitutional obstacles for the execution of certain international conventional obligations. Similarly, a federal State cannot plead that it is under a constitutional prohibition to intervene in the internal competences of its federal components or that there is an absence of constitutional provisions allowing it to intervene to guarantee the execution of a treaty the object of which relates to competences of the federal entity. The federal constitution, even if it does not establish the power of the federal authorities to intervene in the domain of autonomy of the federated States, is not capable of justifying the non-performance of obligations deriving (p. 694) from treaties.29 The drafts concerning the responsibility of States for damages caused to foreigners and their property, adopted in 1900 by the Institute of International Law and in 1929 by the Harvard Law School,30 for instance, establish that a State is not immune from responsibility because the damage caused to a foreigner is attributable to one of its political subdivisions, whatever the degree of control that the national government exercises over that particular subdivision under the Constitution.31 In the same sense, certain member States of the European Union have emphasized that, no matter the complexity of the distribution of competences in the area of ratification of treaties within Belgium and the number of Belgian signatures required for treaties the object of which is the modification of the treaty instituting the European Community, only the Belgian State is a party to the treaty, and as a consequence, it is the only subject responsible vis-à-vis the other member States for the execution of the obligations it has accepted. This declaration intended to underline that Belgium cannot invoke its Constitution and the autonomy of its federal entities, guaranteed in the Constitution, to justify the nonperformance of the treaty.32 International case law is very eloquent on this point.33 In an old but emblematic case, an arbitrator had the opportunity to highlight, in a case concerning damages caused by a federal component of the Republic of Colombia to an American vessel, the following point: But it will probably be said that by the Constitution of Colombia the federal power is prohibited from interfering in the domestic disturbances of the States [parts of the Federation], and that it can not in justice be made accountable for acts which it has not the power, under the fundamental charter of the Republic, to prevent or to punish…If a nation deliberately adopts that form of administering its public affairs, it does so with the full knowledge of the consequences it entails.34 This jurisprudence has been constantly confirmed since.35

References 9. Yet, the ICJ seems to have restricted the scope of the traditional rule in the LaGrand case.36 In that case, Germany alleged that the authorities of Arizona had arrested and sentenced to capital punishment two German nationals, Walter and Karl LaGrand, without complying with the obligations flowing from Articles 5 and 26 of the Vienna Convention on Consular Relations of 1963. These provisions establish an obligation for the local authorities to inform the detained individuals, without delay, of their right to benefit from the consular assistance of the State of their nationality.37 Germany requested the ICJ to prohibit the United States from executing Walter LaGrand, for the duration of the proceedings before the Court. In an order for the indication of provisional measures, the Court decided that: (p. 695) a. The United States of America should take all measures at its disposal to ensure that Walter LaGrand is not executed pending the final decision in these proceedings… b. The Government of the United States of America should transmit this Order to the Governor of the State of Arizona.38 In emphasizing the obligation of the US government to transmit the order to the Governor of Arizona, the ICJ shows that it is not ignorant of the complete autonomy that this State benefits from under the internal laws of the United States and that it is for the federal authorities to comply with the order. When it states that the United States ‘should take all measures at its disposal’ the ICJ seems to suggest that it may even take into account, in the establishment of responsibility, the autonomy granted by the American constitutional system to the federal components.39 Walter LaGrand was executed the day after the Court's order. In its decision on the merits, the Court held that: the various competent United States authorities failed to take all the steps they could have taken to give effect to the Court's Order. The Order did not require the United States to exercise powers it did not have: but it did impose the obligation to ‘take all measures at its disposal to ensure that Walter LaGrand is not executed pending the final decision in these proceedings…’. The Court finds that the United States did not discharge this obligation.40 The Court concluded that by merely transmitting, without comments, the order to the Governor of the federated States, the United States had not complied with the obligation imposed therein. One could be tempted to deduce from this decision that the International Court gives international legal effects to the difficulties that the US may have in the internal execution of its obligations, difficulties that derived from the complete autonomy that the federated entity concerned enjoys. Yet, the implications of these decisions should not be exaggerated. Indeed, the obligation imposed on the United States by the order indicating provisional measures was an obligation of means,41 aimed at preventing the further aggravation of the dispute between the parties, and not an obligation of result, aimed at ensuring the performance of the Vienna Convention on Consular Relations in all circumstances. The US is blamed for not having taken the necessary measures, whatever they

may have been, to guarantee the execution of the Court's order. In other words, the Court's considerations, in as much as they relate to an obligation of means, do not seem to entail a relaxation of the absence of effect of internal law on the binding force of a treaty.

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Does the application of Article 27 require that the treaty be in force in internal law ? 10. Whether the application of Article 27 requires the treaty to be in force in the internal legal order was originally a controversial question. During the work of the plenary session of the Vienna Conference, the representative of the Iranian government invited the members of the session to vote against Article 27 (Art. 23bis as it then was), for the Iranian Constitution established that treaties required parliamentary approval. If the draft Article (p. 696) did not presume that the treaty in question must be in force in the internal legal order of the State to prevent it from invoking its laws against that treaty, Article 27 would be, according to Iran, in contradiction to Article 43 (current Art. 46) of the draft Convention on the Law of Treaties. The latter Article provides for the nullity of treaties concluded in breach of a fundamental provision of the Constitution of the State.42 In other words, Iran's observation was aimed at rebutting the idea that the principle of the impotence of internal law could concern procedures relating to the entry into force of a treaty in the internal legal order. According to the delegation of Iran, a State must be able to invoke its internal procedures to justify the non-execution of a treaty. 11. A treaty in force in the international order must still comply with certain conditions of applicability in order to produce its effects in the internal legal order of the States parties. Every State is free to establish the means of introduction of international norms in its domestic system. The majority of constitutional systems subordinate the insertion of a treaty in the internal order to certain conditions.43 In the States most receptive to international law, the sole publication of the treaty is a condition of its validity44 or, at best, of its opposability to individuals.45 Some States consider treaties to enter into force in their internal legal order through parliamentary consent.46 For others, the precondition of internal validity of a treaty is a parliamentary authorization or a parliamentary order of execution.47 Finally, numerous States require a procedure of incorporation of the treaty in their internal law or the amendment of their law to align it with the treaty.48 In the majority of cases, the introduction of a treaty in the internal order thus depends on a special act by the State authorities, more often than not, of legislative power. This act is in principle distinct from the act of ratification or the act through which the State expresses its consent to be bound by the treaty at the international level,49 irrespective of the fact that States adhere to a monist or dualist conception of international law. In the ‘dualist’ States, (p. 697) the procedure for introduction of the treaty in the internal order tends to be more cumbersome than in the ‘monist’ States. 12. The question whether the treaty must be in force in the internal order as a condition for applicability of Article 27 of the Vienna Convention, that is, whether States can invoke the provisions of their internal legal order concerning the domestic entry into force of treaties, has been given too short an answer. The president of the Vienna Conference merely stated that ‘article…referred only to treaties already in force’.50 Yet, the rule expressed in the current Article 27 of the Vienna Convention on the Law of Treaties expressly says to be ‘without prejudice to article 46’ (former Art. 43 of the draft). This is the only limitation established to the scope of this provision. The reference to Article 46 entails that a State has at most the right to invoke the nullity of a treaty due to a manifest breach of a provision of its internal law concerning the competence for the conclusion of treaties of fundamental importance. But other than this exceptional circumstance, capable of bringing about the nullity of the treaty, all States have the duty to perform in good faith conventional obligations, in accordance with Article 26 of the same Convention. In other words, the State cannot invoke its internal law flowing from a treaty, even the internal provisions concerning the procedure for entry into force of the treaty at the domestic level to disregard obligations.51 Nullity is the consequence of the manifest disregard of a rule concerning the power to conclude treaties, and not of the rules applicable to the entry into force of the treaty in the internal order. In addition, Article 46(2) specifies that a breach is manifest if it is objectively evident for any State conducting itself in the matter in accordance with normal practice and in good faith.52 Besides, it does not appear from the preparatory work that Article 27 requires that the treaty be in force in the internal order. To the contrary originally the ILC had expressly stated that when the constitutional or other provisions require the adoption of ‘specific legislative, administrative or other action in the domestic field, a party to the treaty which finds itself in this position is under a duty to take such action’ (draft Art. 30(3)).53 The obligation to perform the treaty exists from the moment that the treaty is regularly concluded and has entered into force in the international order.54 This is a consequence of the principle according to which States have to comply with their international obligations independently of the possible exigencies of their internal law.55

C. Effects of international law in internal law The adaptation of internal law to the obligations deriving from the treaty 13. An important question concerns the scope of the State's obligation to perform the treaties to which it is a party, when this rule is confronted with the two further principles according to which a State cannot justify non-compliance with its conventional obligations on the basis of

its internal law and according to which the State is free to perform its international obligations in the manner it finds most suitable. The question concerns the determination of (p. 698) whether the State's obligation to comply with its international obligations entails also an obligation on the State to organize its internal law in a specific way, so as to allow the performance of international law, and in consequence, whether the State remains free to bring about this execution in the most suitable way, as long as the international obligations are complied with. The answer is obvious in relation to the performance of international obligations requiring from the State that it specifically adapt its internal law to render it compatible with the treaty, such as the international conventions on uniform legislation. In the other cases as well, the answer seems one of common sense: if a State wishes to escape the invocation of its responsibility, it must organize its internal law in such a way as to allow it to comply with its international obligations. The principle of the State's freedom to pursue the performance of its obligations in the manner it finds most suitable finds an evident limitation in the responsibility that the State may incur for failure to comply with said obligations. The rule contained in Article 27, thus, also entails that international law expects of States that they adjust their internal law so as to allow them to comply with their international obligations. Since the beginning of the twentieth century, the PCIJ has considered the principle according to which the State is under an obligation to modify its legislation so as to guarantee the performance of international obligations undertaken as an obvious one.56 In the law of treaties, the ILC emphasized that States have the duty not to place any obstacles in their internal law for the execution of their conventional obligations, and to take all necessary measures to allow the performance of international obligations in their internal system.57 The ILC also emphasized that the organs of a State are bound, at the international level, to respect the obligations deriving from international law and that the State must ensure the implementation of its international conventional obligations by the State organs and consequently assume the responsibility for their failure to perform them.58 The Court of Justice of the European Communities has set out this rule in the following terms: [The State] alone is responsible towards the Community under Article 169 for compliance with obligations arising under Community law, irrespective of the use which it has made of the freedom to allocate areas of internal legal competence.59

References 14. The obligation to adapt internal law to permit the execution of conventional obligations is particularly broad in Community law. If States remain free, in relation to the application of Directives, to choose the manner and means suitable to the (p. 699) implementation of Directives,60 they are nevertheless still bound to modify their internal laws so as to give effect to Community law and, if need be, to eliminate all the obstacles that could prevent these norms from displaying their full effects. Notably, the Court of Justice of the European Communities has emphasized that although it is not within the competences of Community institutions to pronounce on the distribution of competences among organs of the member States,61 the institutions nevertheless have the power to supervise whether the member States' internal orders provide means that are sufficiently effective to guarantee the uniform application of Community law, and whether these means are sufficiently apt to give actual application to the principles of effet utile and of direct effect of Community law in the internal orders of the member States.62 In this respect, member States must allow their internal legal orders to accommodate Community norms. In an already old decision,63 the Court of Justice considered that member States do not merely have the right, but rather, have an obligation, pursuant to the general provisions of Article 5 of the Treaty of Rome,64 to take all necessary means to guarantee the effet utile of Community law.65 The correct application of Community law not only entails respect for its rules; it also entails an obligation to act: to adopt all necessary measures to give complete and full effect to European norms.66 The Court has been very clear on this point. In its affirmation of this aspect of the member States' obligation, the Court relies on Article 10 (former Art. 5) of the Treaty, pursuant to which member States must take all general and special measures to ensure the execution of Community norms.67

References 15. Similarly, member States of the Community must remove all possible obstacles existing in their domestic laws to guarantee optimal compliance with Community obligations. Failing this, the State would incur responsibility. The Court of Justice has notably explained in this respect that: all methods of implementation are contrary to the Treaty which would have the result of creating an obstacle to the direct effect of Community Regulations and of jeopardizing their simultaneous and uniform application in the whole of the Community.68

References 16. In this context, the Court of Justice regularly highlights that member States have the duty not to take measures capable of hindering the functioning of Community institutions or the efficient implementation of Community norms.69 The duty of member (p. 700) States to guarantee the application, efficacy, and respect for Community provisions is accompanied by the duty to put in place structures to control the respect for these norms,70 and to choose appropriate sanctions in cases of breach.71 The requirements of the Court of Justice on the capability of the internal law of member States to allow the transposition of Community

obligations and the obligation to ensure and guarantee respect for Community law are particularly rigorous, especially in relation to the internal law of regional or federal States.72

References

The recognition of superiority of international law over internal law? 17. Can it be deduced from Article 27 of the Vienna Convention that international law prevails over internal law? The ILC has dealt with this question at length. Initially, the draft Articles contained a draft Article 7 which expressed the primacy of international law over internal law. Nevertheless, the ILC's draft Articles specified that this primacy of international law over internal law applied ‘with reference to the discharge by a State of its international obligation’.73 In other words, the binding character of treaties is determined by international law, which on this point takes precedence over internal law. In this sense, international law prevails over internal law, which does not mean that in case of conflict between an international obligation and a provision of internal law, international law will necessary take over in internal legal orders. It merely entails that, no matter what the content of the internal law of a State, it does not affect the international obligations of the State and the responsibility that the State might incur in case of non-performance.74 This being so, the question of the superiority of international law over internal law can never be answered in a univocal manner, since it will depend on the legal order in which the body charged with the settlement of the conflict of norms is located. If this body is located within the international legal order, the conflict will inevitably be solved in favour of the international rule, for the internal norm constitutes nothing more than a fact within this legal system and it can never justify the nonperformance of international obligations.75 If this body is located within the internal legal order, the conflict will be solved in accordance with the constitutional norms which, depending on the legal system (p. 701) concerned, regulate the matter in one way or another, depending on whether that particular State takes a monist or a dualist view of international law. These two conceptions of the relations between international law and internal law have as their object the more or less strict procedures for the introduction of international law in the internal legal order, without necessarily modifying the status of international law in the hierarchy of norms in force in internal law. A monist system can easily place the constitution above international law in the hierarchy of norms of the system.76 Equally, a dualist system can place international obligations above internal rules, even if they are of constitutional character.77 As emphasized by Michel Virally,78 dualist and monist theses aim rather at the determination of which constitutional power retains the responsibility to ensure the conformity of internal law with international law: in the first case, it corresponds to the judicial power in view of the theory of direct effect of treaties in the internal order; in the second case, it corresponds to the legislative power in view of the existing legislative procedures for the socalled ‘incorporation’ of international law in the domestic system. Article 27 of the Vienna Convention merely prescribes that in the international legal order, international law prevails over the internal law of the States. *

ANNEMIE SCHAUS

References

Footnotes: 1 Already in the Alabama award, eg, it can be read that: ‘and whereas the Government of her Britannic Majesty cannot justify itself for a failure in due diligence on the plea of the insufficiency of the legal means of action which it possessed’, Repertory of International Arbitral Jurisprudence, vol. I, no. 1794–1918 (Dordrecth: Martinus Nijhoff, 1989), p 288. 2 See, notably, the preparatory work of the Vienna Convention of 23 May 1969 on the Law of Treaties, especially, YILC, 1959, vol. II, p 40, para. 4; YILC, 1962, vol. I, p 55 and vol. II, p 35, para. 3; Official Records of the Conference: A/CONF, 39/11/Add.2. 3 Cases 51–54/71 International Fruit Company, CJEC,15 December 1971, ECR 1971, p 1115. See also Cases 68–73/81 Commission v Belgium, 2 February 1982, ECR 1982, respectively at pp 153, 163, 169, 175, 183, 189. See also the conclusions of Advocate General Capotorti. See also ICJ, Request for Interpretation of the Judgment of 31 March 2004 in the case concerning Avena and other Mexican Nationals (Mexico v United States of America), 19 January 2009, para. 44. The European Court of Human Rights has yet to pronounce on Art. 27 of the Vienna Convention, but in its case law it applies a similar principle to that contained in Art. 27, namely the principle of the margin of appreciation of States in the choice of means for the implementation of the Convention; see eg ECtHR, Case of Bosphorus Hava Yollari Turizm Ve Ticaret Anonim Şirketi v Ireland, 30 June 2005, para. 149. 4 See eg Ch. de Visscher, La responsabilité des Etats (Leyde: Bibliotheca Visseriana, 1924), p 89; I. Brownlie, Principles of Public International Law (Oxford: Clarendon Press, 1998), p 435; Nguyen Quoc Dinh, P. Daillier, and A. Pellet, Droit international public (8th edn, Paris: LGDJ, 2009), p 848, n 468. 5 See YILC, 1959, vol. II, p 40, para. 7. 6 Annex to GA Res. 56/83, 12 December 2001. 7 See YILC, 1957, vol. II, pp 41–2, paras 30–1; YILC, 1959, vol. II, p 58, para. 38, p 78, para. 153. See also Greco Bulgarian Communities, PCIJ, 31 July 1930, Series B, no. 17, p 32. 8 G. G. Fitzmaurice, ‘The General Principles of International Law Considered from the Standpoint of the Rule of Law’, RCADI, 1957-II, vol. 92, p 85. See also R. Ago, YILC, 1971, vol.

II, Part One, p 239, n 134. 9 The most important case law on this point was the subject of an exhaustive treatment in the ILC Report of 1973, YILC, 1973, vol. II, pp 184 ff. 10 4 February 1932, Series A/B, no. 44, p 24; see also Acquisition of Polish Nationality, 15 September 1923, Series B, no. 7, p 6. 11 See references supra. 12 See eg CJEC, Case 30/72 Commission v Italy, 8 February 1973, ECR 1973, p 161; Case 52/75 Commission v Italy, 26 February 1976, ECR 1976, p 277; Case 100/78 Commission v Italy, 11 April 1978, ECR 1978, p 879; Case 91/79 Commission v Italy, 18 March 1980, ECR 1980, p 1099; Cases 68–73/81 Commission v Belgium, 2 February 1982, ECR 1982, respectively pp 153, 163, 169, 175, 183, and 189; Case 148/81 Commission v Belgium, 12 October 1982, ECR 1982, p 3555; Case 280/83 Commission v Italy, 5 June 1984, ECR 1984, p 2361; Case 215/83 Commission v Belgium, 28 March 1985, ECR 1985, p 1039; Case 131/84 Commission v Italy, 6 November 1985, ECR 1985, p 3531; Cases 361/85, 365/85, 386/85 Commission v Italy, 29 January 1987, ECR 1987, respectively pp 479, 487, and 1061; Case 383/85 Commission v Belgium, 3 October 1989, ECR 1989, p 3069; Case C-74/89 Commission v Belgium, 21 February 1990, ECR 1990, p I-491; Case C-42/89 Commission v Belgium, 5 July 1990, ECR 1990, p I-2821; Commission v France, 10 April 2003, ECR 2003, p I-3783; Case C358/03 Commission v Austria, 16 December 2004. In the same sense, Caesar v Trinidad and Tobago, I/ACtHR, Judgment, Merits, Reparations and Costs, 11 March 2005, Series C, no. 123, para. 133. 13 Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France), 4 June 2008, para. 124. 14 López-Álvarez v Honduras, Judgment, Merits, Reparations and Costs, 1 February 2006, Series C, no. 141, para. 180. 15 The case law was extensively analysed in Ago's Third Report, see YILC, 1971, vol. II, Part One, pp 226 ff. See also Palamara-Iribarne v Chile, I/ACtHR, Merits, Reparations and Costs, 22 November 2005, Series C, no. 135; Caesar v Trinidad and Tobago, Judgment of 11 March 2005. 16 At the time, draft Art. 4; see YILC, 1973, vol. II, Part Two, p 188, paras 15–17. 17 In the same sense see the 3 April 1996 decision of the President of the International Criminal Tribunal for the Former Yugoslavia in Blaskic, IT-95–14, and its interpretation in Nguyen Quoc Dinh, P. Daillier, and A. Pellet, supra n 4, p 304, no. 178. 18 See supra para. 3 the text of Art. 3 of the draft Articles on State responsibility. 19 The rule was adopted by a large majority (73 for, 2 against). The abstentions (24) appeared to be linked to the unclear relationship between Art. 27 and Art. 46 of the Convention; see infra, para. 12. See also J. Hostert, ‘Droit international et droit interne dans la Convention de Vienne sur le droit des traités du 23 mai 1969’, AFDI, 1969, p 117. 20 See eg supra n 1, the government which invokes the insufficiency of the legal means at its disposal in internal law to comply with an international obligation; see also infra para. 7. 21 Greco-Bulgarian Communities, PCIJ, 31 July 1930, Series B, no. 17, p 32; see also Wimbledon, 17 August 1923, Series A, no. 1, p 29; Certain German Interests in Polish Upper Silesia, 25 May 1926, Series A, no. 7, p 19. 22 Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory, PCIJ, 4 February 1932, Series A/B, no. 44. See also Greco-Bulgarian Communities, Series B, no. 17, p 32. 23 See the objections by Austria, Denmark, Finland, Sweden, and the similar interpretative declaration by Costa Rica, available at: http://treaties.un.org/doc/Publication/MTDSG/Volume%20II/Chapter%20XXIII/XXIII-1.en.pdf (last accessed 30 June 2010). 24 A. Aust, Modern Treaty Law and Practice (2nd edn, Cambridge: Cambridge University Press, 2007), p 138. 25 Certain German Interests in Polish Upper Silesia, PCIJ, 25 May 1926, Series A, no. 7, p 19. A State cannot invoke decisions by its courts and tribunals to evade its international responsibility. See former draft Art. 6 of the ILC draft Articles on State responsibility, YILC, 1975, vol. II, p 60 (draft Art. 5); YILC, 1971, vol. II, Part One, p 253, para. 161. 26 Thus, eg, a State party to the European Convention on Human Rights cannot invoke the insufficiency of its internal law to evade compliance with the obligations under Art. 6 of the Convention concerning due process. It also cannot justify exceeding the reasonable time within which a judicial decision must be rendered by invoking the judges' impossibility to force an expert to present a report within the time limits established; see Capuano, 25 June 1987, Series A, no. 119, p 13. See also J. Velu and R. Ergec, La Convention européenne des droits de l'homme (Brussels: Bruylant, 1990), p 447. 27 See supra the cases concerning Belgium. 28 eg Case C-236/99 Commission v Belgium, 6 July 2000, ECR 2000, p I-5657. 29 See YILC, 1957, vol. II, p 41, para. 30; 1959, vol. II, p 59, para. 42 and pp 76 ff; C. T. Oliver, ‘The Enforcement of Treaties by Federal State’, RCADI, 1974-I, vol. 141, p 354. 30 Respectively, Ann IDI, 1900, vol. 18(2), p 255 and AJIL, 1935, p 1039. 31 YILC, 1956, vol. II, annexed to the report on State responsibility, pp 221 ff. 32 See the declaration of the signatory States to the treaty of accession of Finland, Austria,

and Sweden, OJ C 241, 29 August 1994, p 402. 33 YILC, 1971, vol. II, Part One, pp 257 ff. See also LaGrand (Germany v United States of America), Order on Provisional Measures, ICJ Reports 1999, p 9; Judgment, ICJ Reports 2001, p 466. 34 Arbitral Award of 26 July 1875 between the United States and Colombia in the Montijo case, Moore, History and Digest of International Arbitrations, 1898, pp 1440–1. 35 See the analysis of numerous decisions on this subject in YILC, 1971, vol. II, Part One, pp 257 ff. 36 Supra n 32. 37 UNTS, vol. 596, p 261. 38 LaGrand, Order, 3 March 1999, ICJ Reports 1999, p 9; emphasis added. 39 See Case Concerning the Vienna Convention on Consular Relations (Paraguay v United States of America), Order, 9 April 1998, ICJ Reports 1998, p 248. 40 LaGrand, ICJ Reports 2001, p 508, para. 115; emphasis added. 41 The Court expressly said so in its analysis of the binding character of an order indicating provisional measures, LaGrand, ICJ Reports 2001, p 503. 42 See the commentary on Art. 46 in this work. 43 See  J. A. Frowein and K. Oellers-Frahm, ‘L'application des traités dans l'ordre juridique interne’ in P.-M. Eisemann (ed.), L'intégration du droit international et communautaire dans l'ordre juridique national—Etude de la pratique en Europe (The Hague: Kluwer Law International, 1996), p 11; Nguyen Quoc Dinh, P. Daillier, and A. Pellet, supra n 4, pp 251–63, nos 146–52. 44 eg France: see E. Decaux, P. Michel Eisemann, V. Goesel-Le Bihan, and B. Stern, ‘Rapport sur la France’ in P.-M. Eisemann, supra n 43, p 257. 45 eg Spain: see R. Bermejo García, V. Bou Franch, C. Valdés Díaz, and J. A. Paja Burgoa, ‘Rapport sur l'Espagne’, ibid, p 213; Luxembourg for certain treaties: see, R. Biever, N. Edon, and L. Weitzel, ‘Rapport sur le Luxembourg’, ibid, p 417. 46 eg Belgium: see M. Uyttendaele, Regards sur un système institutionnel paradoxal (Brussels: Bruylant, 1997), p 987; J. Verhoeven, ‘Le régime des traités dans l'Etat fédéral—II. Assentiment, autorité, publicité’, RBDI, 1994, p 58; ‘Rapport sur la Belgique’ in P.-M. Eisemann, supra n 43, p 124. 47 Notably, in Italy: see T. Treves and M. Frigessi di Rattalma, ‘Rapport sur l'Italie’ in P.-M. Eisemann, supra n 43, p 377. 48 eg Canada: see A. L. C. de Mestral and Ch. Verdon, ‘La conclusion et la mise en œuvre des traités dans les Etats fédérés’, Rapports canadiens au Congrès international de droit comparé (ed. Yvon Blais) (Montreal: Institut de droit comparé, 1990), p 443; D. Turp, ‘La mise en œuvre du Pacte international relatif aux droits civils et politiques à la lumière de l'expérience du Canada et du Québec’, doctoral thesis, Université de Paris (Paris II), 1990, pp 117–49; E. Theroux, ‘L'application du droit international en droit interne: aspects pratiques pour le juriste québécois’ (Quebec: Direction générale des affaires juridiques et législatives, 1997, unpublished); A. Jacomy-Millette, L'introduction et l'application des traités internationaux au Canada (Paris: LGDJ, 1971), pp 104, 202. In the United Kingdom: see H. Fox, P. Gardner, and Ch. Wickremasinghe, ‘Rapport sur le Royaume-Uni’ in P.-M. Eisemann, supra n 43, p 124. 49 See eg Ch. De Visscher, supra n 4, p 555; Nguyen Quoc Dinh, P. Daillier, and A. Pellet, supra n 4, pp 160–76, fns 85–93, pp 250–63, fns 146–52. 50 Official Records, Summary Records, 2nd session, p 54, para. 39. 51 YILC, 1956, vol. II, p 223 (quoting the Bases of Discussion of the Preparatory Committee for the 1930 Hague Conference on the Codification of International Law); C. T. Oliver, supra n 29, p 256; J. Hostert, supra n 19, p 93. 52 See the commentary on Art. 46 in this work. 53 YILC, 1959, vol. II, p 49. 54 See the commentary on Art. 26 in this work. See also YILC, 1959, vol. II, p 54, para. 19. 55 Ibid, p 57, para. 33. 56 Exchange of Greek and Turkish Populations, PCIJ, 21 February 1925, Series B, no. 10. 57 YILC, 1957, vol. II, p 41, para. 30; YILC, 1959, vol. II, p 49 (draft Art. 30). 58 YILC, 1959, vol. II, pp 49 and 76. See, in this same yearbook, Sir Gerald Fitzmaurice's Fourth Report on the Law of Treaties. Art. 30 of the draft Convention on the Law of Treaties specified ‘[d]uties of States in relation to their laws and constitutions’ and established that: 1. It is the duty of every State to order its law and constitution in such a way that it can, so far as that law and constitution are concerned, carry out any treaty it has entered into, and can give to any treaty obligation assumed by it such effect in its domestic field as the treaty or obligation may require…4. A State having assumed a treaty obligation is equally under a duty not to take any legislative, administrative or other action, whether at the time of the entry into force of the treaty, or at any subsequent time while it remains in force, that would cause the obligation to cease to be capable of being carried out in the domestic field. (At p 49, and the commentary to this provision at pp 76 ff.)

59 CJEC: Case C-33/90 Commission v Italy, 13 December 1991, ECR 1991, p I-05987. See also Case 52/75 Commission v Italy, 26 February 1976, ECR 1976, p 277; Case 100/77 Commission v Italy, 11 April 1978, ECR 1978, p 879; Case 296/92 Commission v Italy, 12 January 1994, ECR 1994, p 2; Case C-95/97 Walloon Region v Commission, 21 March 1997, ECR 1997, p I-1789. See M. Vaucher, ‘Réalité juridique de la notion de région communautaire’, RTDE, 1994, p 535. 60 Article 288 of the Treaty (former Art. 249). 61 See eg CJEC: Cases 227/85–230/85 Commission v Belgium, 14 January 1988, ECR 1988, p 1; Case C-211/91 Commission v Belgium, 16 December 1992, ECR 1992, p I-6757; Case C95/97 Walloon Region v Commission, 21 March 1997, ECR 1997, p I-1789. 62 See also F. Snyder, ‘The Effectiveness of European Community Law: Institutions, Processes, Tools and Techniques’, MLR, 1993, p 19. 63 Case 30/70 Scheer, CJEC, 17 December 1970, ECR 1970, p 1197. 64 Hereinafter, the ‘Treaty’. This provision is currently contained in Art. 9 of the Treaty (former Art. 10). 65 See also Case 102/81 Nordsee, CJEC, 23 March 1982, ECR 1982, p 1095. 66 M. Blanquer, L'article 5 du Traité CEE Recherches sur les obligations de fidélité des Etats membres de la Communauté (Paris: LGDJ, 1994), p 35. 67 Ibid, p 30. 68 Case 39/72 Commission v Italy, CJEC, 7 February 1973, ECR 1973, p 101. 69 See eg CJEC: Case 40/69 Hauptzollamt Hamburg-Oberelbe, 18 February 1970, ECR 1970, p 69; Case 13/77 Inno, 16 November 1977, ECR 1977, p 2115; Case 137/80 Commission v Belgium, 20 October 1981, ECR 1981, p 2407; Case 106/77 Simmenthal, 9 March 1978, ECR 1977, p 629; Case C-364/92 SAT Fluggesellschaft, 19 January 1994, ECR 1994, p I-43; Case C129/96 Inter-Environnement Wallonie, 18 December 1997, ECR 1997, p I–7411. 70 Case C-213/89 Factortame, CJEC, 19 June 1990, ECR 1990, p I-2433. On this case and its consequences for the case law of the Court of Justice concerning the responsibility of member States, see E. García de Enterría, ‘Le dénouement de l'affaire “Factortame”. La responsabilité civile du Royaume-Uni’ in M. Dony (ed.), Mélanges en hommage à Michel Waelbroeck (Brussels: Bruylant, 1999), p 355; A. Siciliano, ‘State Liability for Breaches of Community Law and its Application within the Italian Legal System’, EPL, 1999, p 405; J. Steiner, ‘The Limits of State Liability for Breach of European Community Law’, EPL, 1998, p 69; E. Deards, ‘ “Curiouser and Curiouser”? The Development of Member State Liability in the Court of Justice’, EPL, 1997, p 117. 71 See eg CJEC: Case 50/76 Amsterdam Bulb BV, 2 February 1977, ECR 1977, p 137; Case 102/81 Nordsee, 23 March 1982, ECR 1982, p 1095; Case 54/81 Fromme, 6 May 1982, ECR 1982, p 1449; Cases 66/81–99/81 Pommerehnke and Franzen, 29 April 1982, ECR 1982, p 1363; Case 68/88 Commission v Greece, 21 September 1989, ECR 1989, p 2965; Case 326/88 Hansen, 10 July 1990, ECR 1990, p 2911; Case C-7/90 Vandevenne, 2 October 1991, ECR 1991, p I-4371. 72 See, notably, CJEC: Case C-33/90 Commission v Italy, 13 December 1991, ECR 1991, p I5987; Case C-237/90 Commission v Germany, 24 November 1992, ECR 1992, p I-5973. 73 YILC, 1959, vol. II, p 40, para. 7. 74 YILC, 1957, vol. II, p 41, para. 30; YILC, 1959, vol. II, p 58, para. 38, p 78, para. 153; see also Greco-Bulgarian Communities, PCIJ, 31 July 1930, Series B, no. 17. 75 See Certain German Interests in Polish Upper Silesia, PCIJ, 25 May 1926, Series A, no. 7, p 19; ICJ, Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, Advisory Opinion, 26 April 1988, ICJ Reports 1998, p 35, para. 58. 76 eg in Belgium, this question is not clearly determined: see, notably, J. Velu, ‘Contrôle de constitutionnalité et contrôle de compatibilité avec les traités, Mercuriale de rentrée de la Cour de Cassation’, 1 September 1992, published in extracts in JT, 1992, p 629; Y. Lejeune and Ph. Brouwers, ‘La Cour d'Arbitrage face au contrôle de la constitutionnalité des traités’, JT, 1992, pp 671 ff. 77 See eg § 25 of the German Basic Law. 78 M. Virally, ‘Sur un pont aux ânes: les rapports entre droit international et droit interne’, Problèmes de droit des gens. Mélanges offerts à Henri Rolin (Paris: Pedone, 1964), pp 488– 505. * Professor, Université libre de Bruxelles (ULB); Dean of the Law Faculty, ULB, Brussels, Belgium.

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Volume I, Part III Observance, Application and Interpretation of Treaties, s.1 Observance of Treaties, Art.27 1986 Vienna Convention Katia Boustany, Maxime Didat From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Treaties, observance — Travaux préparatoires — Customary international law — Responsibility of international organizations

(p. 702) 1986 Vienna Convention Article 27 Internal law of states, rules of international organizations and observance of treaties 1. A State party to a treaty may not invoke the provisions of its internal law as justification for its failure to perform the treaty 2. An international organization party to a treaty may not invoke the rules of the organization as justification for its failure to perform the treaty 3. The rules contained in the preceding paragraphs are without prejudice to article 46. A. General characteristics 702 Object and purpose 702 Customary status 704 B. Scope of the rule 705 Application of Article 27 to international organizations 706 What are the ‘rules of the international organization’? 709 A necessary, yet dangerous terminology 709 The law adopted by the organization in light of its ‘attributed competences’ and its functional jurisdiction 710 Should the observance of Article 103 of the Charter of the United Nations be required? 713 C. The problem of the international responsibility of international organizations 714 D. Relations between the organization and its member States 715

A. General characteristics Object and purpose 1. As Special Rapporteur Paul Reuter indicated, this Article intended to ‘place international organizations and States within the same framework’,1 in order to ensure the stability of conventional relations, safeguard the obligations arising from them,2 and avoid the uncertainty and insecurity that would ensue if international organizations did not receive in this respect comparable treatment to that of States.3 The stability of international relations is closely linked to the primacy of international law and the obligations arising from it.4 That principle was clearly established by the Permanent Court of International Justice, according to which the provisions of the treaty would prevail5 in the event of conflict between a treaty and the internal law of a State.6

References (p. 703) 2. As it will be explained infra,7 the option to transpose the rule to international organizations in identical terms was not without difficulty.8 On the one hand, the constituent instrument of an international organization is itself a multilateral treaty, which fundamentally distinguishes it from the internal law of States.9 On the other hand, the rules of the organization are not limited to the provisions of its constituent charter, but also comprise those developed through its practice, resolutions, decisions, and internal regulations, all of which could be difficult to identify.10 However, despite the issues already mentioned, the need to attribute more weight to the consent of the parties as creating between them a reciprocal obligation11 prevailed over other considerations, particularly those relating to the inherent limitations resulting from the specific jurisdiction of international organizations. After all, they are subjects deriving from the will of States.12 As Special Rapporteur Paul Reuter underscored at the time: If the text is read with the term ‘a State’ replaced by ‘an international organization’, the result will be a rule which provides in advance a legal basis for all the present and future practice of organizations; organizations will bind themselves by their consent as they themselves understand it.13 One of the goals in adjusting the new Convention to that of 1969 was to minimize the need for establishing a particular regime for international organizations where specific provisions were unnecessary.14 In consequence, the Commission chose to maintain ‘the benefit of the general rules of consensuality wherever that presented no difficulties’.15 In other words, without ever losing sight of the differences between States and international organizations, the ILC tried to maintain a ‘fair balance’ between these two subjects of international law. To that end, it excluded certain possibilities for organizations that the 1969 Vienna Convention accorded to States, and extended to organizations the scope of certain rules that only applied to States.16 3. This approach was based on the fact that ‘[t]reaties are based essentially on the equality of 17

the contracting parties’.17 For this reason, it was necessary to avoid a double (p. 704) stumbling block: first, that of allowing an international organization having concluded a treaty to justify its failure to apply it because its conclusion, or even its performance, was not in conformity with the rules of the organization;18 and second, that of granting a treatment more favourable to international organizations than to States.19 That is why, eventually, the different proposals tending to modulate the formulation of the rule to reflect certain particularities specific to international organizations were abandoned in favour of a rigorous parallelism. Nevertheless, the option that prevailed could not mask the contradictions…between consensuality based on the equality of the contracting parties and the differences between States and international organizations.20 It was important, however, not to give international organizations the attributes of States. Doing so would be inexact, given that organizations are the result of an act of will on the part of States, conferring on each organization specific functions and a unique mission which shapes its individual character and demarcates, in this manner, the resemblance between the different organizations.21 4. Even so, with regard to the transposition of the rule embodied in Article 27 to international organizations, one particular problem was extensively debated. While the competence of a State to conclude treaties as a subject of international law is unlimited, that of an international organization is precisely circumscribed by its constituent Charter and the rules under which it must fulfil its functions.22 In addition, the rule in Article 27 of the 1969 Convention implies the State's obligation to modify its internal law, if it is necessary to comply with its obligations assumed under a treaty. This is not the case for international organizations,23 which are not competent to modify their status, constituent instrument, or rules, as the jurisdiction to adopt such changes falls to the organization's membership precisely by virtue of those rules.24

Customary status 5. The rule embodied in Article 27 is regarded as a direct consequence25 and practical application26 of the pacta sunt servanda bona fide principle which immediately precedes it.27 Thus, as Article 27 is its corollary28 and gives it effect,29 it should also be deemed to (p. 705) share its customary character. It must be recalled that when the PCIJ affirmed the primacy of international law over the internal law of States, it also referred to this principle as ‘a generally accepted principle of international law’.30 Indeed, the PCIJ very early applied, on many occasions and in a variety of forms, the principle of the preference of conventional obligations over the internal law of States.31 For his part, Sir Gerald Fitzmaurice underscored that ‘[t]his principle is indeed one of the great principles of international law, informing the whole system and applying to every branch of it’.32 Also, despite the reservations that the ILC might have had in including a rule arising primarily from the law of international responsibility,33 it is difficult to question whether the principle was a codification of a wellestablished norm of general international law.34

References 6. Nonetheless, in considering the discussions relating to paragraph 2 of Article 27, the question was to know whether all aspects of the rules which govern the behaviour of States in their conventional relations were applicable to international organizations. 7. The concerns raised regarding Article 27 did not refer to its content, but to the drafting of its second paragraph.35 As the principle itself was never questioned,36 it seems that the debate over its formulation in order to reveal the inherent particularities of the activity of international organizations does not preclude the conclusion that this provision of the 1986 Vienna Convention is endowed with a customary character.37 On the contrary, the final position taken by the Commission having emerged, in the Special Rapporteur's words, ‘almost unanimous[ly]’, therefore confirms the importance attached to the core of the rule.38

B. Scope of the rule 8. In order to assess the scope of the Article, the different issues arising from its examination during the work of the Commission shall be addressed. First, the application of Article 27 to international organizations will be examined; in particular, whether these could invoke their ‘institutional law’ to justify their failure to perform a treaty. The precise (p. 706) meaning of the words ‘rules of an international organization’ will be examined thereafter; do they refer to the founding act of the institution, to the subsequent practice brought about after the establishment of the organization, or to both?

Application of Article 27 to international organizations 9. At the outset, it is worth noting that Article 27, paragraph 2 only applies when the international organization is party to a treaty that is not only in force but also valid under the law of nations.39 10. The conditions under which the terms of Article 27 apply deserve consideration. Indeed, it must be understood that an international organization, as a subject derived from the will of States, which both created it and formed its membership, cannot invoke its ‘institutional law’40 to justify its failure to perform a validly concluded convention. Specifically, international organizations are subjects derived from the will of States which created them under the terms of a treaty serving as the organization's constituent instrument. For this reason, one of the major preoccupations surrounding the extension of the rule to these subjects focused on the

observance by the organization of its jurisdictional limits, which resulted from the whole set of rules governing the fulfilment of its functions under its own constitutive charter. 11. As will be considered infra,41 an international organization does not have the power to amend its constituent instrument following the conclusion of a conventional obligation by one of its organs—such review is the prerogative of the entire membership of the organization and not of the organ concerned.42 Unlike international organizations, States must modify their internal law if it is necessary to ‘ensure the fulfilment of the obligations undertaken’.43 The proposal to complete the second paragraph of Article 27 by subordinating the performance of a treaty to the fulfilment of the functions and powers of the organization44 was dismissed. As a result, the main condition necessary to the application (p. 707) of the rule contained in this provision to international organizations refers to ‘valid treaties which have been properly concluded’.45 This opinion was simplified as follows: Each organization has certain limits to the treaties it may conclude concerning the exercise of its functions and powers. If those limits are overstepped, the question of the validity of the treaties will arise; if they are respected, the treaties will be valid.46

References 12. In this respect, the safeguard clause established in Article 46 of the Convention—to which the third paragraph of Article 27 refers—played an essential role in keeping an integral parallelism between States and international organizations in the formulation of the rule under consideration. The safeguard clause precludes the ability of a State to invoke a violation of a provision of its internal law concerning its competence to conclude treaties as vitiating consent.47 13. Contrary to what the language of the second paragraph of Article 27 may suggest, the primacy of the rules of an international organization over the rights of its constituent States48 coexists, paradoxically, with its obligation not to invoke those rules to justify its failure to perform a treaty. Indeed, it transpires from both the Special Rapporteur's work49 and the debates within the Commission50 that the relation established in Article 6 of the Convention between the capacity of an international organization to conclude treaties and the rules of the organization governing such capacity contemplates both the ‘constitutionality of the will of organizations’ and the validity of treaties. In this manner, a treaty is validly concluded if it was concluded in accordance with the constituent act of the organization. However, in the event that either the representatives or organs of an organization ‘went beyond the limits of their powers and manifestly violated the rules of the organization’51 which are of fundamental importance—and only these rules52—then Article 46 of the Convention would operate as the guardian of institutional integrity53 and was considered, in this respect, to constitute sufficiently effective protection for the organization.54 14. Furthermore, in the Special Rapporteur's view, the reference to Article 46 of the Convention found in Article 27, paragraph 3 seemed to aim specifically at dispelling any doubt concerning the capacity of international organizations to invoke the rules governing their competence to conclude a treaty if it was concluded ‘in conditions manifestly (p. 708) contrary to those rules’.55 The judgment rendered by the Court of Justice of the European Communities in European Parliament v Council of the European Union56 illustrates this point. In this particular case, the European Parliament filed an action to annul Council Decision 2004/496/CE of 17 May 2004, concerning the conclusion of an agreement between the European Community and the United States of America on the processing and transfer of PNR (Passenger Name Records) data by air carriers to the US Bureau of Customs and Border Protection of the US Department of Homeland Security, as well as to annul Commission Decision 2004/535/CE of 14 May 2004 on the adequate level of protection of personal data contained in the Passenger Name Record of air passengers transferred to the US Bureau of Customs and Border Protection. Notably, the Parliament contended that the Commission overstepped its powers57 and was not competent to conclude such an agreement, based on Article 95 of the Treaty establishing the European Community in connection with Article 25 of Decision 2004/496.58 For the Court: Given, first, the fact that the Community cannot rely on its own law as justification for not fulfilling the Agreement which remains applicable during the period of 90 days from termination thereof and, second, the close link that exists between the Agreement and the decision on adequacy, it appears justified, for reasons of legal certainty and in order to protect the people concerned, to maintain the effect of the decision on adequacy during that same period…59 Consequently, the Court annulled the two contested decisions, while at the same time preserving the effects of one of them (Decision 2004/535), until the date of effective termination of the agreement mentioned supra between the Community and the United States.

References 15. Thus, there is a clear connection between the validity of a treaty and the lack of capacity of an international organization to invoke its internal rules to justify its failure to perform the treaty,60 which means that the rule in Article 27 presumes the validity of a conventional instrument in force.61 In order to understand this rule, some comparisons were drawn; first, that of a State bound by a validly concluded treaty but for which its Parliament did not pass the law necessary to implement that treaty; and second, that of (p. 709) an international organization also validly bound by a financial agreement the performance of which, even if the organization could not pay for it, would be opposable to the organization for as long as it 62

remained the debtor of the engagements entered into.62 16. However, it must be admitted that ‘it may be a delicate matter to determine the margin within which each organization can commit itself’,63 particularly since the fulfilment of its functions, as well as the realization of its object and purpose, are likely to result from its own interpretation of its constituent act and the powers emerging from it.

What are the ‘rules of the international organization’? A necessary, yet dangerous terminology 17. As discussed supra, it does not seem appropriate to use the terms ‘internal law’ when referring to international organizations,64 as it could be thought to indicate a particular international law regime.65 Even the expression ‘rules of the organization’ cannot be interpreted as meaning the same set of rules applicable to all organizations. Indeed, the ‘law of each international organization’66 results from its specific needs; therefore there is no set of common rules applicable to all organizations in this respect.67 For this reason, it was considered necessary to add a definition of the ‘rules of the organization’68—introduced in paragraph 1(j) of Article 2 of the Convention of 198669—in order to facilitate the understanding of Article 27. In his comment on Article 2, the Special Rapporteur indicated that the expression should generally be understood as including the constituent Charter of the organization, its written rules created in the exercise of its functions, and the unwritten rules resulting from the practice it may have established.70 This approach was reflected in the text of the 1986 Vienna Convention, which settled what should be understood by the terms ‘rules of the organization’. As it was intended,71 this definition ensued from that which had already been adopted within the framework of the Vienna Convention on the Representation of States in Their Relations with International Organizations of a Universal Character.72

References

(p. 710) The law adopted by the organization in light of its ‘attributed competences’ and its functional jurisdiction 18. As discussed supra, it was postulated from the outset that the competence and power of international organizations to conclude treaties were confined to the organizations' functions and purposes as established in their constituent instruments.73 Similarly, it was very soon admitted that such power74 should be exercised in conformity with the totality of rules of each organization—including the ‘established practice’, which would have become a rule of the given institution.75 19. With regard to the development of the law governing international organizations in relation to the application of the rule in Article 27, the issues to be considered are more complex than they may seem at first sight. It must be remembered that the ICJ mainly referred to the capacity of the United Nations to conclude agreements to note that these conventions, such as the 1946 Convention on the Privileges and Immunities of the United Nations, could only operate between the parties if both the States and the organization possessed international personality.76 Nonetheless, the Court specified: Whereas a State possesses the totality of international rights and duties recognized by international law, the rights and duties of an entity such as the Organization must depend upon its purposes and functions as specified or implied in its constituent documents and developed in practice.77 Thus, the functions of an international organization and the purpose for which it was created determine the scope of its international personality, such as its capacity to conclude treaties.

References 20. Consequently, what is true for the ‘attributed competences’ (compétences d'attribution)78 of an international organization is also true for its functional jurisdiction,79 so that: the balance to be established between the observance of its own jurisdiction and the need for flexibility in the functioning of the organization falls upon the interpretation, by way of the principles (p. 711) of specialization and effectiveness, of both the organization's constituent treaty and all other rules constituting its legal status.80 Although this observation does not resolve the particular problems that are likely to emerge, it establishes a framework for them. Therefore, the issue becomes the scope of the teleological interpretation by the organs of an international organization of the breadth of their own functions. As a general rule, these organs determine their own jurisdiction81 because the supervision of the legality of their own decisions under the organization's constituent instrument is, in principle, precluded—except for the specific case of the European Communities and the European Union. This being said, agreements can be concluded based on a resolution adopted by virtue of an organ's interpretation of its own jurisdiction. Thus, Article 27 of the 1986 Convention takes on particular importance, as it imposes on member States a duty to cooperate with the organization in order not to hamper the performance of its agreements.82

References

21. This type of situation was illustrated by the divergence of views among States parties at the General Assembly of the United Nations regarding the financing of peacekeeping operations which followed the Suez crisis in 1956; the issues arising from the Congo crisis in 1960; or even those following the UNESCO ‘crisis’ in 1983–84, when the United States, the United Kingdom, and Singapore chose to abandon the organization to protest against the ‘politicization of [its] debates’.83 In its Advisory Opinion on the issue of expenditures, the ICJ noted that peace and international security were the UN's most important goals, as they were necessary to achieve all the others, and declared: Save as they have entrusted the organization with the attainment of these common ends, the member States retain their freedom of action. But when the Organization takes action which warrants the assertion that it was appropriate for the fulfilment of one of the stated purposes of the United Nations, the presumption is that such action is not ultra vires the Organization.84 Regarding the allegation that the organization acted without jurisdiction through one of its organs, the Court clearly stated: it was irregular as a matter of that internal structure, but this would not necessarily mean that the expense incurred was not an expense of the Organization. Both national and international law contemplate cases in which the body corporate or politic may be bound, as to third parties, by an ultra vires act of an agent.85 In order to measure the significance of this affirmation, one has to bear in mind that, in the same Opinion, the ICJ had previously analysed the provisions of the Charter86 relative to the organic balance of functions between the General Assembly and the Security Council concerning peacekeeping and international security. That analysis corroborated, as far as its practical and legal objectives are concerned—even if indirectly—the interpretation that the General Assembly itself had given in its resolution ‘Uniting for Peace’,87 on (p. 712) the division of functions in this area between the Assembly and the Security Council, according to the constituent instrument of the organization. In other words, in the case under consideration, the Court did not consider that powers had been exercised without jurisdiction. This may be the reason why, during the discussions about Article 27, paragraph 2, it was stated that some excerpts of the Opinion meant that, even if it is not always the case, an action by an international organization could validly produce some effects at the international level,88 which underscores the sense and raison d'être of the rule embodied in Article 27.

References 22. Moreover, another delicate issue regarding the scope of the second paragraph of Article 27 had to be discussed and required clarification: the failure to perform an agreement as a result of the modification, by the organ having signed the agreement, of the institutional act which caused the agreement's conclusion. 23. Indeed, it was generally admitted that an agreement concluded by an international organization through an act of one of its organs was contingent upon the act and therefore could not impose obligations on the organization, as long as the act giving rise to the agreement remained unchanged. During the discussions within the Commission, Mr Ouchakov presented a hypothetical case where, for example, the Security Council would have concluded with a State a perfectly valid agreement to send troops belonging to that State to a certain region and for several years for the purpose of maintaining international peace. After several months, the Security Council would have decided, in conformity with the Charter of the United Nations, to replace the troops of the State in question with those of another State. If the first State protested, could the Security Council invoke the provisions of the Charter in support of its new decision? For Mr Ouchakov, the draft Article under consideration did not satisfactorily answer this question.89

References 24. An amendment to the second paragraph of Article 27 of the 1986 Convention was proposed to address that concern, which was drafted as follows: 2. An international organization party to a treaty may not invoke the rules of the organization as justification for its failure to perform the treaty, unless performance of the treaty, according to the intention of the parties, is subject to the exercise of the functions and powers of the organization.90 This proposal gave rise to differing views concerning ‘the intention of the parties’. According to certain members of the ILC, this reference underscored that the will of the international organization alone was not legally determinative91 and that the interpretation of a treaty concluded between a State and an international organization required looking for what the parties intended in light of the inherent jurisdictional limitations of international organizations.92 However, to other members the element of intention was an obstacle93 as it was a subjective criterion difficult to apply,94 because it was unclear (p. 713) under which conditions this intention had to manifest itself.95 In addition, it was feared that this formula ‘would appear to give an international organization the opportunity to override its own constituent instruments’.96 The USSR proposed to add the following amendment to paragraph 2 of Article 27: ‘[i]n the event of a conflict between the obligations under a treaty concluded by an international organization and its obligations under the constituent instrument of the organization, the obligations under that instrument shall prevail’,97 which raised many 98

objections,98 notably from international organizations themselves ‘which put forward, particularly, that the proposed provisions would create further doubts surrounding the validity of their international obligations and would become an additional source of problems and contestations’.99 Thus, the Soviet amendment was rejected, ‘without much of an effort on the part of the USSR to defend it’,100 as noted by an author. 25. In the end, the majority came to think that there was no difference between the prerogative of a State to invoke its internal law and that of an organization to invoke its rules to justify the failure to perform a treaty.101 Consequently, the initial draft, which operated a simple transposition of the rules to international organizations, was retained. 26. It was actually not necessary to establish such an exception for international organizations and to treat them differently from States. As a legal person, an organization has the same ability as a State to limit the scope of its commitments, and to make the performance of an agreement subject to certain conditions102 by including an express provision to that end.103 Thus, there was no reason to introduce an exception for international organizations where none existed for States.104 27. It is thus confirmed that the rule in Article 27, paragraph 2 does not apply to subsequent agreements following an act by an organ of an international organization, the performance of which depends on the organization, when its performance is suspended by a subsequent act of this organ. However, it is also established that it does not relieve the organization from its obligations in relation to such an agreement by virtue of other rules contained in the 1986 Vienna Convention or general international law.

Should the observance of Article 103 of the Charter of the United Nations be required? 28. A different type of concern also arose: the question was whether the rule in paragraph 2 of Article 27 was subject to the observance of Article 103 of the Charter of the United Nations. An amendment proposal was therefore presented at the Conference by (p. 714) the UN representative, according to whom this Charter provision was applicable to treaties concluded by international organizations.105 The problem with the explicit reference to Article 103 within the text of the 1986 Convention had already been discussed regarding Article 30. In the end, unlike in the text of the 1969 Convention, Article 30 did not explicitly refer to Article 103, so that only the substance of the Charter provision was retained.106

References 29. Even if international organizations are only third parties with regard to the Charter of the United Nations as they cannot become members of the UN, the fact remains that member States of these organizations are also members, without exception, of the organization created by virtue of the Charter. Consequently, it would be difficult to conceive that such organizations would ignore UN norms.107 Intuitively, it seems difficult to imagine that States could escape through collective action obligations to which they were bound individually.108 However, it did not seem appropriate directly to associate Article 103, or the principle it sets out, to the norm established under the second paragraph of Article 27. Even if another representative of an international organization supported the aforementioned amendment proposal,109 the idea that the reference to Article 103 of the Charter was not relevant within the framework of Article 27 was finally retained.110 In the end, Article 103 was deemed to concern a hierarchy of international obligations constituting a rule of general international law and not simply ‘the purely internal law of the United Nations’111—which eventually refused to insist on the adoption of its own proposal.112 In this manner, the wording of Article 27 retained its specificity.

References

C. The problem of the international responsibility of international organizations 30. Despite its direct link to the law of treaties, according to the Special Rapporteur, Article 27 of the Vienna Convention primarily ensued from the regime of international (p. 715) responsibility.113 However, the Commission did not have the mandate to discuss issues regarding the responsibility of international organizations within the framework of the law of treaties or otherwise.114 31. Nonetheless, an amendment aiming at including in the second paragraph of this provision a reference to Article 74 of the Convention115—Article 73 of the draft Articles—was submitted for discussion, as some members of the Commission had difficulty transposing to international organizations the same rule that governed States. They found it necessary to take into account, to some extent, the specificity of law subjects whose capacity to contract and perform conventional obligations was determined by the fulfilment of their functions.116 In this regard, two particularly significant situations where an organization could invoke its internal rules to justify its failure to perform conventional obligations were noted. One covered situations where an organization bound by a treaty to provide assistance to a State would have to suspend or terminate it because the State would have failed, according to the organization, to comply with its international obligations such as the respect of human rights.117 The second covered situations where the organization would have to refuse the benefits of the performance of a treaty to a State which would have committed an unlawful act; this hypothesis emerged from the regime of international responsibility.118 The reference to both Article 46 and Article 73 [74] provoked several objections, as Article 27, paragraph 1

concerning States was only subject to Article 46. The double reference with regard to paragraph 2 would thus have established a differential, unjustified, untimely regime between States and international organizations, more favourable to the organizations than to the States which created them.119 Therefore, the Commission eventually returned to its initial position120 and deleted any reference to current Article 74.121

D. Relations between the organization and its member States 32. Among the preoccupations surrounding the transposition of the rule of Article 27 to international organizations, those relating to the respective position of the (p. 716) institution and its member States influenced the entire process leading to the final form of the 1986 Convention. The main reason for this concern seemed to be the States' uneasiness regarding the existence, as established by the ICJ, of an international personality of organizations distinct from that of States and sufficient to allow organizations to conduct an ‘independent action’122—of course subject to the goals and functions that States had themselves assigned to organizations in their constituent instruments, but nevertheless recognized by the Court as such. By way of example, one author commented: …one of the reasons leading States to refuse the creation of international organizations lies precisely in the will to operate in an inter-State context that is fully under control, even when the development of supplementary norms of a basic treaty seems desirable. In other words, it seems that States have come to terms with the need for the normative development beyond the text of a multilateral treaty which they have ratified, but that they do not want this normative development to end up binding them to rules to which they have not consented.123

References 33. Generally, States have tended to see organizations as providing an institutional framework to serve the States' collective goals.124 This may be why some States emphasized ‘the limited nature’125 of their international organizations and narrowly circumscribed sphere of autonomy.126 34. An interesting case concerning this issue involved a dispute between France and the European Commission.127 France applied for a declaration that, on the basis of Article 173 of the Treaty of Rome,128 an existing agreement between the Commission and the US government concerning the application of US competition laws was void.129 The French government accused the Commission of concluding the agreement in violation of both Community rules concerning the Commission's powers to conclude agreements and Community competition law. The Commission's argument against the French position was that: its power to conclude international agreements is all the more clear-cut in the present case, since the EEC Treaty has conferred on it specific powers in the field of competition [in order to]…ensur[e] the application of the principles laid down in Articles 85 and 86 of the EEC Treaty.130 (p. 717) Nevertheless, the Court did not accept the argument because: Even though the Commission has the power, internally, to take individual decisions applying the rules of competition, a field covered by the Agreement, that internal power is not such as to alter the allocation of powers between the Community institutions with regard to the conclusion of international agreements, which is determined by Article 228 of the Treaty.131 The Court therefore annulled the act whereby the Commission sought to conclude the agreement with the United States. In the end, this jurisprudence reflects the complex relations between international organizations and their member States. Despite the fact that organizations are created by treaties between States to which organizations are not parties, it is not appropriate to consider organizations as third parties in relation to their own constituent Charter because it is this charter which remains the legal foundation of their acts.132 Indeed, it is by acting within the limits of the constituent act and the organization's rules that they manifest their due respect to both the sovereign States133 which created them and the extent of the powers those States conferred upon them.134 *

KATIA BOUSTANY

 maxime didat**

References

Footnotes: 1 YILC, 1977, vol. I, p 113, para. 34. 2 Intervention by the representative of Greece at the 5th session, Official Records, Summary Records, 1986, vol. I, p 121, para. 46. 3 Intervention by the representative of the EEC at the 5th session, ibid, p 122, para. 66. 4 See Intervention by Mr El-Erian at the 1436th meeting of the ILC, YILC, 1977, vol. I, p 110, para. 10. 5 Greco-Bulgarian Communities case, 31 July 1930, PCIJ, Series B, no. 17, pp 32 and 35.

6 For the general scope of the rule contained in Art. 27, para. 1 of the 1986 Vienna Convention, see the commentary on Art. 27 of the 1969 Vienna Convention. In the present commentary, the sense and scope of Art. 27, para. 1 will only be evaluated from the perspective of conventional relations between States and international organizations. 7 Cf infra paras 9–29. 8 P. Reuter, ‘Du droit international au droit de l'intégration’ in F. Capotorti et al. (eds), Liber Amicorum Pierre Pescatore (Baden-Baden: Nomos, 1987), p 558. 9 See intervention by Mr Francis at the 1436th meeting of the ILC, YILC, 1977, vol. I, p 111, para. 15. 10 See intervention by Mr Tabibi at the 1436th meeting of the ILC, ibid, p 112, para. 22. 11 See First Report by Paul Reuter, A/CN.4/258, 3 April 1972, YILC, 1972, vol. II, p 188, para. 56 and p 196, para. 81: When put with such force at such a general level, the principle [of consensualism] here goes beyond the characteristics of a particular subject of law; it is as valid for organizations as for States. But in that case there is no a priori valid reason not to think that the definitions and elucidations of that principle provided by the 1969 [Vienna] Convention, particularly in regard to the validity of consent, must in theory be as valid for international organizations as for States. 12 See intervention by Mr Diaz Gonzalez at the 1436th meeting of the ILC, YILC, 1977, vol. I, p 109, para. 3: ‘…when an international organization signed a treaty, its representative was acting only on behalf of the organization and not on behalf of its member States’. 13 First Report by Paul Reuter, A/CN.4/258, 3 April 1972, YILC, 1972, vol. II, p 188, para. 56, emphasis added. 14 Ibid, pp 194–5, para. 76. As noted by Paul Reuter, the idea was that ‘the number of special régimes [should] not be increased unduly’. 15 See Report of the ILC on the work of its 34th session, YILC, 1982, vol. II, part II, p 13, para. 43. 16 Ibid. 17 Ibid, p 13, para. 40. 18 Intervention by Mr Schwebel at the 1436th meeting of the ILC, YILC, 1977, vol. I, p 111, para. 17. 19 Intervention by the representative of Czechoslovakia at the 5th session, Official Records, Summary Records, vol. I, p 122, para. 63. 20 Report of the ILC on the work of its 34th session, YILC, 1982, vol. II, p 13, para. 42, original emphasis. 21 Ibid, para. 41. 22 Intervention by Mr Sette Câmara at the 1435th meeting of the ILC, YILC, 1977, vol. I, p 107, para. 41. 23 Intervention by Mr Ouchakov at the 1435th meeting of the ILC, YILC, 1977, vol. I, p 107, para. 43. 24 Cf intervention by Mr Ouchakov at the 1673rd meeting of the ILC, 17 June 1981, Summary Records of meetings at the 33rd session, YILC, 1981, vol. I, p 160, para. 25; still along the same lines, his intervention at the 1700th meeting of the ILC, 5 May 1982, CRA of meetings during 34th session, YILC, 1982, vol. I, pp 11–12, paras 23–4. 25 See intervention by Mr Sahovic at the 1436th meeting of the ILC, YILC, 1977, vol. I, p 109, para. 5. 26 See intervention by Mr Francis at the 1435th meeting of the ILC, ibid, p 108, para. 50. 27 Article 26 reads: ‘Every treaty in force is binding upon the parties to it and must be performed by them in good faith’; see the commentary on that provision in this work. 28 Intervention by Mr El-Erian at the 1436th meeting of the ILC, YILC, 1977, vol. I, p 110, para. 10; cf A. Aust, Modern Treaty Law and Practice (2nd edn, Cambridge: Cambridge University Press, 2007), p 180. 29 Intervention by Mr Calle y Calle at the 1436th meeting of the ILC, YILC, 1977, vol. I, p 109, para. 8. 30 Greco-Bulgarian Communities case, PCIJ, Series B, no. 17, p 32. 31 See particularly Acquisition of Polish Nationality case, 15 September 1923, PCIJ, Series B, no. 7, pp 15–16; Jurisdiction of the Courts of Danzig case, 3 March 1928, PCIJ, Series B, no. 15, pp 17–18 and 27. 32 Sir G. G. Fitzmaurice, ‘The General Principles of International Law Considered from the Standpoint of the Rule of Law’, RCADI, 1957-II, vol. 92, p 85. 33 Nguyen Quoc Dinh, A. Pellet, and P. Daillier, Droit international public (8th edn, Paris: LGDJ, 2009), p 245, fn 142; cf infra, Section C. 34 For the customary status of Art. 27 of the 1969 Vienna Convention, see supra paras 4 and 5 of the commentary on that Article in this work. 35 See intervention by Mr Reuter at the 1436th meeting of the ILC, YILC, 1977, vol. I, p 112, para. 33.

36 Intervention by Mr Thiam at the 1700th meeting of the ILC, 5 May 1982, CRA of meetings at the 34th session, p 12, para. 27. 37 ‘As, following common practice on this issue, the Court [of Justice of the European Communities] relies on occasion on the 1986 Vienna Convention on the law of treaties concluded by international organizations, in a way that, without binding the Community, it may reveal customary norms in force’. (A. Fenet, ‘La soumission de la Communauté à l'ordre juridique international’ in A. Fenet (ed.), Droit des relations extérieures de l'Union européenne (Paris: Litec, 2006), pp 118–19, fn 231, own translation.) 38 See intervention by Mr Reuter at the 1700th meeting of the ILC, 5 May 1982, Official Records, Summary Records, 34th session, p 13, para. 44; according to the indications of the Special Rapporteur, only Mr Ouchakov insisted that international organizations be the subject of a special comment (cf infra, paras 23–4). 39 Intervention by Special Rapporteur Paul Reuter at the 1436th meeting of the ILC, 8 June 1977, YILC, 1977, vol. I, p 112, para. 31. The Dictionnaire de droit international public defines validity as the ‘quality possessed by the elements of a legal order which fulfill all the required conditions of form and substance required by that legal order to produce legal effects’ [own translation]: J. Salmon (ed.), Dictionnaire de droit international public (Brussels: Bruylant/AUF, 2001), p 1126. 40 To find out exactly the meaning of ‘institutional law’ of an international organization, besides the ‘classic’ doctrinal definitions (C.F. Amerasinghe, Principles of the institutional law of international organizations (2nd edn, Cambridge: Cambridge University Press, 2005), pp 13–20; J. Combacau and S. Sur, Droit international public (8th edn, Paris: Montchrestien, 2008), pp 96 and 712–13; Nguyen Quoc Dinh, A. Pellet, and P. Daillier, supra n 33, pp 404–5, no. 241; Ph. Sands and P. Klein, Bowett's Law of International Institutions (6th edn, London: Sweet & Maxwell, 2009), p 16, para. 1–030), see infra para. 17. 41 Cf infra paras 18–20. 42 Intervention by Mr Ouchakov at the 1700th meeting of the ILC, 5 May 1982, Summary Records of meetings at the 34th session, p 11, para. 23. 43 Exchange of Greek and Turkish Populations case, 21 February 1925, PCIJ, 1925, Series B, no. 10, p 20. 44 Cf intervention by Mr Schwebel at the 1459th meeting of the ILC, YILC, 1977, vol. I, p 238, para. 14: …the formulation of paragraph 2 proposed by the Special Rapporteur…was preferable to the Drafting Committee's proposal, which provided that an international organization could not invoke its rules as justification for failure to perform the treaty unless performance was subject to the exercise of the functions and powers of the organization. Surely, the performance of treaties entered into by international organizations was invariably subject to the exercise of the powers and functions of the organization. Fortunately, the Drafting Committee's text was qualified by a reference to the intention of the parties, which indicated that it was not the will of the international organization alone that would be legally dispositive. 45 Report of the ILC on the work of its 34th session, YILC, 1982, vol. II, p 39, para. 5; that consideration had already been advanced during the previous travaux: see the Report of the ILC on the work of its 29th session, YILC, 1977, vol. II, Part Two, p 119, para. 5; along the same lines, the intervention by Mr Ouchakov and the intervention by Mr Ago at the 1436th meeting of the ILC, YILC, 1977, vol. I, respectively, p 109, para. 7 and p 110, para. 13. 46 Report of the ILC on the work of its 34th session, YILC, 1982, vol. II, p 39, para. 5. 47 See, moreover, the commentary on that provision in this work. 48 Nguyen Quoc Dinh, A. Pellet, and P. Daillier, supra n 33, pp 407–8, no. 243. 49 See Second Report by Paul Reuter, A/CN.4/271, YILC, 1973, vol. II, p 89, para. 84. 50 See the debates at the 1435th and 1436th meetings, YILC, 1977, vol. I, pp 107–14. 51 On the sense to be given to the expressions ‘manifest violation’, see commentary on Art. 46 of the Conventions in this work. 52 See intervention by Mr Calle y Calle at the 1673th meeting of the ILC, 17 June 1981, Official Records, Summary Records, 33rd session, YILC, 1981, vol. I, pp 160–1, para. 31. 53 See interventions by Mr Calle y Calle at the 1436th meeting of the ILC, 8 June 1977, YILC, 1977, vol. I, p 110, para. 9 and at the 1673rd meeting of the ILC, 17 June 1981, Official Records, CRA, 33rd session, YILC, 1981, vol. I, p 160, para. 30; similarly, intervention by Mr Jagota at the 1673rd meeting of the ILC, 17 June 1981, ibid, p 162, para. 40. 54 See Eleventh Report by Paul Reuter, A/CN.4/353, 26 March 1982, YILC, 1982, vol. II, p 7, para. 18. 55 Intervention by Mr Reuter at the 1673rd meeting of the ILC, 17 June 1981, Official Records, Summary Records, 33rd session, YILC, 1981, vol. I, p 158, para. 8. 56 Judgement of 30 May 2006, European Parliament v Council of the European Union, CJEC, Cases C-317/04 and C-318/04. 57 Ibid, paras 50–1. 58 Ibid, paras 62–3:

The Parliament submits that Article 95 EC does not constitute an appropriate legal basis for Decision 2004/496. The decision does not have as its objective and subjectmatter the establishment and functioning of the internal market by contributing to the removal of obstacles to the freedom to provide services and it does not contain provisions designed to achieve such an objective. Its purpose is to make lawful the processing of personal data that is required by United States legislation. Nor can Article 95 EC justify Community competence to conclude the Agreement, because the Agreement relates to data processing operations which are excluded from the scope of the Directive. (Directive 95/46/EC of the European Parliament and the Council, of 24 October 1995, regarding the protection of physical persons with regard to the processing of personal data and the free circulation of this data.) 59 Ibid, para. 73, emphasis added. 60 See intervention by Mr Jagota at the 1673rd meeting of the ILC, 17 June 1981, Official Records, Summary Records, 33rd session, YILC, 1981, vol. I, p 162, para. 40. 61 Intervention by Special Rapporteur Paul Reuter at the 1436th meeting of the ILC, 8 June 1977, YILC, 1977, vol. I, p 112, para. 31. Cf also A. Aust, supra n 28, p 315. 62 Intervention by Special Rapporteur Paul Reuter at the 1436th meeting of the ILC, 8 June 1977, YILC, 1977, vol. I, p 113, paras 32–4. 63 Report of the ILC on the work of its 29th session, YILC, 1977, vol. II, Part Two, p 119, para. 5. 64 See intervention by Mr Reuter at the 1435th meeting of the ILC, YILC, 1977, vol. I, p 107, para. 39. 65 See Second Report by Paul Reuter, A/CN.4/271, 15 May 1973, YILC, 1973, vol. II, p 87, para. 87; cf similarly the developments dedicated to the issue in G. Bastid Burdeau, ‘Quelques remarques sur la notion de droit dérivé en droit international’ in Droit du pouvoir, pouvoir du droit. Mélanges offerts à Jean Salmon (Brussels: Bruylant, 2007), pp 161–4. 66 See the First Report by Paul Reuter, A/CN.4/258, 3 April 1972, YILC, 1972, vol. II, pp 215– 16, paras 86–9. 67 Ibid, p 197, para. 33. 68 See intervention by Mr Verosta at the 1436th meeting of the ILC, YILC, 1977, vol. I, p 110, para. 6. 69 See commentary on Art. 2 in this work. In its resolution adopted in 1995 on the responsibility of international organizations, the Institute of International Law adopted a definition along the same lines (Art. 2(c)) (cf Ann IDI, 1996, vol. 66-II, p 446). 70 See Fourth Report by Paul Reuter, A/CN.4/285, 21 March 1975, YILC, 1975, vol. II, p 43, para. 4. 71 See intervention by the Chairman of the Commission at the 1436th meeting of the ILC, YILC, 1977, vol. I, pp 112–13, para. 29. 72 Convention on the Representation of States in Their Relations with International Organizations of a Universal Character of 14 March 1975, in its first Article, para. 1, 34, defines the ‘rules of the Organization’ as ‘the constituent instruments, relevant decisions and resolutions, and established practice of the Organization’ (A/CONF.67/16). 73 See the First Report by Paul Reuter, A/CN.4/258, 3 April 1972, YILC, 1972, vol. II, p 203, para. 50. 74 See commentary on Art. 6 in this work. 75 First Report by Paul Reuter, A/CN.4/258, 3 April 1972, YILC, 1972, vol. II, p 203, para. 51. 76 Reparation for Injuries Suffered in the Service of the United Nations, 11 April 1949, ICJ Reports 1949, pp 178–9. 77 Ibid, p 180. 78 Which are defined in the Dictionnaire de droit international public as the ‘specific power(s) of an international organization resulting from a legal norm instituting this/these power(s), failing which the legal norm would not exist’ (own translation): J. Salmon (ed.), supra n 39, p 216. In other words, the powers of international organizations are limited to whatever is necessary to perform the functions which their constitutions have defined (see H. G. Schermers and N. M. Blokker, International Institutional Law. Unity within Diversity (4th edn, The Hague: Martinus Nijhoff, 2004), p 209). As the International Court of Justice noted, ‘International organizations are governed by the ‘principle of speciality’, that is to say, they are invested by the States which create them with powers, the limits of which are a function of the common interests whose promotion those States entrust to them' (Advisory Opinion on the Legality of the Use by a State of Nuclear Weapons in Armed Conflict, 8 July 1996, ICJ Reports 1996, p 78, para. 25). 79 ‘A power of an international organization is called functional when it finds its basis and its limits within the framework of the function(s) and the purposes of the organization’ (own translation) (in J. Salmon (ed.), supra n 39, p 216); the competences of an international organization ‘stretch so far as to include all acts indispensable for the performance of the functions of the organization’ (H. G. Schermers and N. M. Blokker, supra n 78, para. 209). See also P. Reuter and J. Combacau, Institutions et relations internationales (3rd edn, Paris: PUF, 1985), p 317; S. Sur, Relations internationales (4th edn, Paris: Montchrestien, 2006), pp 300– 1.

80 R.-J. Dupuy, ‘L'application des règles du droit international général des traités aux accords conclus par les Organisations internationales’, Fourteenth Commission, Final Report and Draft Articles, Ann IDI, 1973, p 365 (own translation). 81 Certain Expenses of the United Nations, 20 July 1962, ICJ Reports 1962, p 168. 82 R.-J. Dupuy, supra n 80, p 375. 83 Cf M. Flory, ‘La crise de l'UNESCO’, AFDI, 1985, pp 653–71, esp. p 668. 84 Certain Expenses of the United Nations, supra n 81, p 168, emphasis added. 85 Ibid. 86 Ibid, pp 163–7. 87 AGNU/Res. 377 (V), 3 November 1950. 88 See intervention by Mr Schwebel at the 1436th meeting of the ILC, 8 June 1977, YILC, 1977, vol. I, p 111, paras 18–19. 89 Intervention by Mr Ouchakov at the 1436th meeting of the ILC, ibid, p 114, para. 38. 90 See the proposal by the Drafting Committee submitted at the 1459th meeting of the ILC, ibid, p 238, para. 7, emphasis added. 91 Ibid. 92 See intervention by Mr Quentin-Baxter at the 1459th meeting of the ILC, ibid, p 239, para. 18. 93 Intervention by Mr Sucharitkul at the 1674th meeting of the ILC, 18 June 1981, Summary Records of meetings at the 33rd session, YILC, 1981, vol. I, p 163, para. 7. 94 See Eleventh Report by Paul Reuter, A/CN.4/353, 26 March 1982, YILC, 1982, vol. II, p 7, para. 14. 95 See eg the intervention by Mr Pinto at the 1674th meeting of the ILC, 18 June 1981, Summary Records of meetings at the 33rd session, YILC, 1981, vol. I, p 163, para. 2. 96 Intervention by Mr Ouchakov at the 1673rd meeting of the ILC, 17 June 1981, ibid, p 160, para. 28. 97 A/CONF. 129/C.1/C.39. 98 See the interventions by Mr Riphagen and by Mr Ramadan at the 14th meeting of the Conference, Official Records, Summary Records, vol. I, pp 120–1, paras 42 and 49. 99 Ph. Manin, ‘La Convention de Vienne sur le droit des traités entre Etats et organisations internationales ou entre organisations internationales’, AFDI, 1986, pp 459–60. 100 Ibid, p 460. 101 See intervention by Mr Aldrich at the 1673rd meeting of the ILC, 17 June 1981, Summary Records of meetings at the 33rd session, YILC, 1981, vol. I, p 162, para. 41. 102 Intervention by Mr Thiam at the 1700th meeting of the ILC, 5 May 1982, ibid, p 12, para. 27. 103 Intervention by Mr Ogiso at the 1700th meeting of the ILC, 5 May 1982, ibid, p 12, para. 31; along the same lines, intervention by Mr McCaffrey, ibid, p 13, para. 33. 104 Intervention by Mr McCaffrey at the 1700th meeting of the ILC, 5 May 1982, ibid, p 13, para. 33. 105 Intervention by the representative of the United Nations at the 5th session, Official Records, Summary Records, vol. I, p 120, para. 37: …while the United Nations appreciated the extensive consideration given by the International Law Commission to paragraph 2 of Article 27, as described in its commentary, it was not entirely satisfied that the provision, though analogous to paragraph 1 of the same Article and to the corresponding provision of the 1969 Vienna Convention, adequately took account of the difference between subordinating ordinary domestic law to a treaty and subordinating one treaty to another, as would be the case under paragraph 2. That applied particularly in the case of the United Nations, whose constituent treaty, the Charter, had been generally recognized as having pre-eminent status. That status was specifically mentioned in Article 103 of the Charter, which applied not only to treaties concluded by States Members of the Organization but also…to those concluded by international organizations, and from which they could not derogate. 106 See the commentary on Art. 30 in this work, regarding the application of successive treaties dealing with the same subject matter. 107 See the Fourth Report by Paul Reuter, A/CN.4/285, 21 March 1975, YILC, 1975, vol. II, p 43, para. 5. 108 See intervention by the representative of Egypt, Official Records, Summary Records, vol. I, p 121, para. 47. 109 See intervention by the representative of the World Health Organization, Official Records, Summary Records, vol. I, p 121, para. 45. 110 See debates, Official Records, Summary Records, vol. I, pp 120–3, paras 37 ff. 111 Intervention by the representative of the Netherlands, Official Records, Summary Records, vol. I, p 120, para. 41. 112 See intervention by the Chairman of the Conference at the 27th session, Official Records,

Summary Records, vol. I, p 192, para. 2. 113 Report of the ILC on the work of its 34th session, YILC, 1982, vol. II, p 38, para. 4; along the same lines, intervention by Mr Ago at the 1436th meeting of the ILC, 8 June 1977, YILC, 1977, vol. I, pp 110–11, para. 14. 114 See intervention by Mr Reuter at the 1436th meeting of the ILC, 8 June 1977, ibid, p 113, para. 31. 115 Article 74 of the 1986 Vienna Convention: Questions not prejudged by the present Convention: 1. The provisions of the present Convention shall not prejudge any question that may arise in regard to a treaty between one or more States and one or more international organizations from a succession of States or from the international responsibility of a State or from the outbreak of hostilities between States. 2. The provisions of the present Convention shall not prejudge any question that may arise in regard to a treaty from the international responsibility of an international organization, from the termination of the existence of the organization or from the termination of participation by a State in the membership of the organization. 3. The provisions of the present Convention shall not prejudge any question that may arise in regard to the establishment of obligations and rights for States members of an international organization under a treaty to which that organization is a party. 116 Report of the ILC on the work of its 34th session, YILC, 1982, vol. II, 1982, p 38, para. 2. 117 Ibid. 118 Ibid, pp 38–9, para. 4. 119 See the interventions by Messrs Ni, Calero Rodrigues, and Quentin-Baxter at the 1700th meeting of the ILC, 5 May 1982, Summry Records of meetings at the 34th session, YILC, 1982, vol. I, respectively p 9, para. 2, p 10, para. 13, and p 13, para. 38. 120 See Eleventh Report by Paul Reuter, A/CN.4/353, 26 March 1982, YILC, 1982, vol. II, p 7, para. 14. 121 See intervention by the Special Rapporteur at the 1700th meeting of the ILC, 5 May 1982, Official Records, Summary Records, 34th session, p 13, para. 43. 122 Reparation for Injuries Suffered in the Service of the United Nations, 11 April 1949, ICJ Reports 1949, p 183. 123 G. Bastid Burdeau, supra n 65, pp 171–2 (own translation). 124 See First Report by Paul Reuter, A/CN.4/258, 3 April 1972, YILC, 1972, vol. II, p 193, para. 70. 125 Observations by the Government of the People's Republic of Hungary, Report of the ILC on the work of its 33rd session, Annex II, YILC, 1981, vol. II, p 187, para. 6. 126 See particularly the observations by the German Democratic Republic and by Romania, Report of the ILC on the work of its 33rd session, Annex II, YILC, 1981, vol. II, respectively p 185, para. 7 and pp 188–9, para. 3. 127 Decision of 9 August 1994, France v Commission of the European Communities, CJEC, ECR 1994, pp I-3666 ff. 128 The Court of Justice shall review the legality of acts adopted jointly by the European Parliament and the Council, of acts of the Council, of the Commission, and of the ECB other than recommendations and opinions, and of acts of the European Parliament intended to produce legal effects vis-a-vis third parties. 129 Considering that changes in the international economy in the past few years required a more ambitious framework, as well as a more incisive and innovative content, the Commission envisaged with the US authorities the possibility of negotiating an agreement creating a legal framework for their relations. That agreement particularly aimed at avoiding, through preventive action, potential conflicts arising from the extraterritorial application of competition laws. 130 France v Commission of the European Communities, supra n 127, para. 40. 131 Ibid, para. 41. 132 See First Report by Paul Reuter, A/CN.4/258, 3 April 1972, YILC, 1972, vol. II, p 189, para. 58. 133 Ibid, pp 174–5, para. 10. 134 Ibid. * Doctor of Laws, Professor, Université du Québec à Montréal, Canada. ** Legal Adviser at the Ministry of Defence, International Relations Service; Assistant at the Université libre de Bruxelles (ULB); Associate Researcher, Centre de droit international et de sociologie appliquée au droit international, ULB, Brussels, Belgium.

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Volume I, Part III Observance, Application and Interpretation of Treaties, s.2 Application of Treaties, Art.28 1969 Vienna Convention Frédéric Dopagne From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Treaties, observance — Customary international law — Treaties, interpretation — Treaties, entry into force — Travaux préparatoires

(p. 718) 1969 Vienna Convention Article 28 Non-retroactivity of treaties Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party. A. General characteristics 718 Subject matter and rationale 718 Customary status 719 B. The scope of the principle of non-retroactivity of treaties 720 The date of the entry into force of the treaty with respect to a party 720 An ‘act or fact which took place’ before the date of the entry into force or ‘a situation which ceased to exist’ before that date 720 The non-application of the treaty to the acts or facts which took place or the situations which ceased to exist before the date of the entry into force 722 Applications of the principle of non-retroactivity of treaties 722 Limits to the principle of non-retroactivity of treaties 723 Article 18 of the Vienna Convention 723 The principle of immediate effect 724 C. Exceptions to the principle of non-retroactivity of treaties 725 A different intention ‘appears from the treaty’ 726 A different intention ‘is otherwise established’ 726

Bibliography Bindschedler-Robert, D., ‘De la rétroactivité en droit international public’, Recueil d'études de droit international en hommage à P. Guggenheim (Geneva: IUHEI, 1968), pp 184–200 Bleckmann, A., ‘Die Nichtrückwirkung völkerrechtlicher Verträge. Kommentar zu Art. 28 der Wiener Vertragsrechtskonvention’, ZaöRV, 1973, pp 38–55 Briggs, H. W., ‘Reflections on Non-Retroactivity of Treaties’, REDI, 1968, pp 320–7 Orihuela Calatayud, E., Los tratados internacionales y su aplicación en el tiempo. Consideraciones sobre el efecto inicial de las disposiciones convencionales (Madrid: Dykinson, 2004) Sørensen, M., ‘Le problème dit du droit intertemporel dans l'ordre international’, Ann IDI, 1973, pp 1–67 and 85–100 Tavernier, P., Recherches sur l'application dans le temps des actes et des règles en droit international public (Paris: LGDJ, 1970)

A. General characteristics Subject matter and rationale 1. It seems that non-retroactivity of the law as a whole rests upon two main justifications. First, there is the necessity of securing the legal certainty of the addressees of legal (p. 719) norms.1 Secondly, there is the possibility for the law to fulfil its basic prescriptive function, as obviously a norm which is not in force at the time when the subject adopts a specific conduct is unable to provide this subject with a valid rule of conduct.2 2. In this respect, international law is no different from other legal orders. It is therefore no surprise that the Vienna Convention lays down the principle that treaties have no retroactive effect. While Article 28 was probably one of the most difficult provisions to draft, the very principle that it contains does not seem to have been contested, either within the ILC or on the occasion of the Vienna Conference.3 3. The issue of (non-)retroactivity is commonly connected to the so-called intertemporal law. The latter notion refers to the legal principles determining the applicable rule among several successive rules.4 The principle of non-retroactivity alone is explicitly set forth in Article 28. Nevertheless, this principle is not the only principle of intertemporal law: in order to give the question of the temporal application of norms a comprehensive answer, other principles are required, especially the principle of immediate effect.5 As demonstrated infra, this principle too proves to be enshrined in Article 28, although not explicitly.6 4. On the other hand, the rules on interpretation are, as such, extraneous to intertemporal law.7 Intertemporal law determines the applicable norm in the event that the law has changed: does the former norm or the new one apply? Once the applicable norm has been identified, interpretation consists—downstream—of determining its meaning and scope. Moreover, the rules on interpretation are the subject of a section of the Vienna Convention (Arts 31–3) distinct from that, devoted to the ‘application of treaties’, in which Article 28 is found.

Accordingly, the rules on interpretation will not be dealt with further.

Customary status 5. It may confidently be asserted that Article 28 has codified a rule of general international law applicable to States which are not a party to the Vienna Convention.8 Indeed, the (p. 720) principle of non-retroactivity of treaties was applied on many occasions in the case law prior to the Convention.9 Interestingly, some sources consider this principle as a rule of customary international law,10 whereas others regard it as a general principle of (international) law, within the meaning of Article 38, paragraph 1(c) of the Statute of the International Court of Justice.11 Basically, these discrepancies do not however impinge on the inclusion of nonretroactivity of treaties among the general rules of international law.

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B. The scope of the principle of non-retroactivity of treaties 6. There is no difficulty in assessing the date of the entry into force of a treaty with regard to a party. It can be more problematic to determine what constitutes an ‘act or fact which took place’ before that date or ‘a situation which ceased to exist’ before that date. Lastly, it must be pointed out that Article 28 implicitly lays down the principle of immediate effect of treaties.

The date of the entry into force of the treaty with respect to a party 7. Failing any provision in the treaty itself or any agreement between the negotiating States, Article 24 of the Vienna Convention regulates the entry into force of the treaty. 8. To some extent, Article 25 relating to the provisional application of treaties is likely to complicate matters. When a treaty is applied provisionally pending its entry into force, it seems that the critical date to appraise the retroactivity is the date of the provisional application, and no longer that of the entry into force. For example, the acts or facts which took place after the date of the provisional application of the Energy Charter Treaty of 17 December 199412 come within the scope of the treaty although the latter has not yet entered into force, without this entailing any retroactive application of the treaty. Such a conclusion tends to safeguard the effet utile of the mechanism of provisional application.13

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An ‘act or fact which took place’ before the date of the entry into force or ‘a situation which ceased to exist’ before that date 9. In the vast majority of cases, determining what constitutes an act or fact which took place or a situation which ceased to exist before the date of the entry into force will not raise any problem. For instance, if a treaty provides for an obligation of assistance in case (p. 721) of accident on the high seas, the ‘fact’ to be taken into account to appraise the retroactivity of the treaty is such an accident occurring: here, non-retroactivity means that the treaty applies only to accidents occurring after its entry into force. 10. However, there exist some borderline cases. Several dates are likely to be taken into consideration in the case of, for example, a treaty on extradition: the date on which the offence was committed, the date on which the offender took refuge on the territory of the requested State, or the date of the request for extradition. Among these ‘facts’, which one has to be subsequent to the entry into force of the treaty?14 Basically, it seems altogether quite difficult to delimit concepts such as ‘acts’, ‘facts’, and ‘situations’. It is of little avail to contend that a fact or act is necessarily instantaneous, and a situation per se protracted;15 besides, the latter distinction is not always straightforward as the notion of an ‘act having a continuing character’16 tends to demonstrate (persistent unlawful detention, etc.). 11. The difficulties mentioned supra are particularly acute with respect to compromissory clauses whereby States accept the jurisdiction of international tribunals. Again, different dates can a priori be used: the date of the submission of the case to the court, the date on which the dispute has arisen, or the date of the facts in which the dispute originates.17 For the principle of non-retroactivity to be observed, is it sufficient that proceedings be instituted after the entry into force of the compromissory clause, or is it required that the dispute arose after that date, or even that the dispute originates in facts subsequent to that date? As compromissory clauses are regularly accompanied by reservations designed to exclude the disputes that have arisen before (or pertaining to facts previous to) the entry into force of the clause, it is posited here that, failing any such express limitation, the tribunal has jurisdiction over every dispute submitted to it after the entry into force of the clause, whatever the date of the emergence of the dispute or the date of the underlying facts may be. This conclusion is underpinned by the judgment of the Permanent Court of International Justice (PCIJ) in the Mavrommatis Palestine Concessions case18 which has also been endorsed by the ILC.19 In fact, such a conclusion lies with the principle of immediate effect.20 Provided that the proceedings are instituted after the entry into force of the compromissory clause, the circumstance that the dispute has arisen earlier or that the facts to which the dispute relates are prior to that date does not render the clause ‘retroactive’.21 Hence, the aforementioned temporal reservations do not amount to relieving the acceptance of jurisdiction from retroactive effect:22 they merely constitute an exception to the principle of immediate effect.

References (p. 722) 12. That said, the principle of non-retroactivity can in practice lead to some temporal restriction of the compromissory clause when that clause accompanies the substantive provisions of a treaty.23 For instance, Article IX of the Genocide Convention confers jurisdiction on the International Court of Justice (ICJ) with respect to disputes relating to the interpretation, application, or fulfilment of the Convention. As a result of non-retroactivity of the substantive rules of the Convention, the Court cannot deal with alleged facts of genocide pursuant to Article IX if these facts took place before the entry into force of the Convention. In such a case, the temporal application of the compromissory clause is thus indirectly limited to the facts subsequent to its entry into force.

References 13. In the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide, the Court nevertheless rejected Yugoslavia's contention that the Court could only deal with events subsequent to the different dates on which the Convention might have become applicable as between the parties, and held that it had jurisdiction to give effect to the Genocide Convention ‘with regard to the relevant facts which have occurred since the beginning of the conflict which took place in Bosnia and Herzegovina’.24 It is submitted here that, to the extent that those facts took place before the entry into force of the Convention with respect to the parties, such a conclusion boils down to giving the Convention retroactive effect.25 Admittedly, both States were bound by the substantive obligations set forth in the Genocide Convention on the basis of customary international law, even before the date on which the Convention became applicable between them.26 However, Article IX establishes the jurisdiction of the Court with respect to disputes relating to the interpretation, application, or fulfilment of the Convention alone.27

References

The non-application of the treaty to the acts or facts which took place or the situations which ceased to exist before the date of the entry into force 14. This section aims at providing some examples of the way the principle of non-retroactivity operates. The limits to the principle are also highlighted, whether they flow from Article 18 of the Vienna Convention or from the principle of immediate effect.

Applications of the principle of non-retroactivity of treaties 15. Article 28 takes the legal norm as a starting point, and determines the acts, facts, and situations to which this norm does not apply. Alternatively, the acts, facts, and situations (p. 723) could have been taken as a starting point, with the view to determining the norm which applies to them. The latter approach was favoured by Max Huber in the arbitral award that he delivered in the case relating to the Island of Palmas: ‘a juridical fact must be appreciated in the light of the law contemporary with it, and not of the law in force at the time when a dispute in regard to it arises or falls to be settled’.28 These are but two faces of one and the same coin.29

References 16. ‘To appreciate’, within the meaning of the passage quoted, can mean ‘to determine the effects’. To take simply one classic example, military conquest nowadays no longer provides a valid title to territorial sovereignty. The title so obtained at a time the use of force was not unlawful cannot, however, be called into question: the effects of a conquest must be determined ‘in the light of the law contemporary with it’.30

References 17. ‘To appreciate’ can equally mean ‘to determine the lawfulness’. For instance, acts of slavery committed by a State at a time when no specific prohibition existed in this regard do not entail the international responsibility of that State.31

References 18. ‘To appreciate’ can also mean ‘to determine the validity of a legal act’. For example, the ICJ held in this respect that ‘the validity of a treaty concluded as long ago as the last quarter of the eighteenth century…should not be judged upon the basis of practices and procedures which have since developed only gradually’.32

References

Limits to the principle of non-retroactivity of treaties Article 18 of the Vienna Convention 19. It is not because a treaty does not bind a contracting party in relation to any fact which

took place before its entry into force that such a party is under no obligation until the entry into force of the treaty. Irrespective of the application of possible rules of customary international law, it is well known that Article 18 of the Vienna Convention lays down an obligation of ‘good faith’ whereby signatory States as well as States having expressed their consent to be bound must refrain from acts which would defeat the object and purpose of the treaty, even if the latter has not yet entered into force. It must, however, be stressed that such an obligation is not at odds with Article 28.33 Indeed, the (p. 724) obligation results from Article 18 only, independently of the provisions of the treaty at issue. Therefore, it does not convey any retroactive effect of the treaty provisions themselves. In sum, Article 18 merely contains a limit to Article 28.

The principle of immediate effect 20. As alluded to supra (when addressing the issue of the jurisdiction ratione temporis of international tribunals),34 a further limit to the principle of non-retroactivity stems from the principle of immediate effect.35 It is worth dwelling somewhat on that point. 21. The principle of immediate effect is not explicitly enshrined in Article 28.36 Having said this, it can be argued that Article 28 implicitly embodies the principle since it only refers to situations ‘which ceased to exist’ before the date of the entry into force of the treaty:37 such wording seems to mean that, a contrario, situations which have not ceased to exist at the time when the treaty enters into force do effectively fall within the scope of the treaty, as from the latter's entry into force.38 Nevertheless, this is by no means tantamount to applying the treaty retroactively:39 strictly speaking, the treaty does not apply to acts or facts prior to its entry into force, it simply applies ‘immediately’, which means that it ‘govern[s] the legal situation from the moment that situation [comes] under the new rule’.40 22. That said, it seems that a distinction must be made between ‘a merely passive continuation’ of a situation and the ‘active’ prolongation of a situation.41 When factors subsequent to the entry into force of the treaty ‘are merely the confirmation or development’ of an earlier situation,42 the principle of non-retroactivity requires not applying the treaty to this situation. For example, the European Commission of Human Rights decided that the mere fact that the applicant was still serving a sentence after the entry into force of the Convention with regard to the defendant State did not render the Convention applicable to the proceedings which had taken place before such date.43 On the other hand, when, after the entry into force of the treaty, there are fresh or repeated occurrences (p. 725) of the previous acts in which the situation originated, the principle of immediate effect requires applying the treaty to that situation.44 However, no doubt in practice the foregoing distinction will at times be hard to draw.

References 23. Whatever the difficulties supra may be, it should be borne in mind that, in any event, the contracting parties are allowed to depart from the immediate application of the rules that they lay down. Indeed, they can provide for a ‘postponed effect’.45 In this case, the treaty applies only to the situations arising after the entry into force of the treaty, to the exclusion of those which have arisen and have not ceased to exist before that date. This is exactly what States do when they limit their acceptance of the temporal jurisdiction of international tribunals to the disputes arising after the entry into force of the compromissory clause.46

C. Exceptions to the principle of non-retroactivity of treaties 24. As is long recognized by case law,47 the principle of non-retroactivity of treaties can be departed from: the contracting parties may freely agree that the treaty shall apply to acts or facts which took place or situations which ceased to exist before the date of its entry into force with respect to them. In such circumstances, the law purports to regulate the past because it is ‘en retard sur les situations sociales à gérer’ (behind the social situations to be managed).48 Strictly speaking, however, this does not amount to any form of ‘retroactive entry into force’:49 while effects of the treaty are exceptionally produced in relation to events prior to the latter's entry into force, the obligation to be retroactively performed comes into being only at the time of the entry into force of the treaty.50 25. As indicated by the first words of Article 28, the intention of the contracting parties is the decisive factor as regards retroactivity of the treaty.51 Such an intention can either ‘appear from the treaty’ or ‘be otherwise established’.

(p. 726) A different intention ‘appears from the treaty’ 26. Undeniably, a different intention ‘appears from the treaty’ in the event that the treaty expressly provides for retroactive application of its provisions. For instance, Article 7, paragraph 2 of the Vienna Convention of 23 August 1978 on succession of States in respect of treaties explicitly stipulates that, under certain conditions, the Convention applies to a succession of States which occurred before its entry into force.52 27. Arguably, a different intention equally ‘appears from the treaty’ when such an intention implicitly results from the treaty, although this hypothesis is not (explicitly!) contemplated by Article 28. Indeed, ‘it [is] obvious that a treaty [is] valid in respect both of what it expressly state[s] and of what it implie[s]’.53 Article IV of the Treaty of 8 May 1871 between Great Britain and the United States can be cited on this point. Great Britain contested that the rules on neutrality set forth in Article VI of the treaty (the so-called rules of Washington) reflected customary international law. Great Britain nevertheless agreed that these rules be retroactively applied to its conduct during the American Civil War. The intention to afford the

treaty such retroactive effect appears implicitly from Article IV of the Treaty: Her Majesty's Government…agrees that, in deciding the questions between the two countries arising out of those claims, the Arbitrators should assume that Her Majesty's Government had undertaken to act upon the principles set forth in these rules.54

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A different intention ‘is otherwise established’ 28. If it does not appear—explicitly or implicitly—from the treaty provisions, the intention to grant the treaty retroactive effect can be ‘otherwise’ established. The latter phrase55 prompts the thought that Article 28 refers to the travaux préparatoires. This interpretation was nevertheless contradicted by the debate within both the ILC and the Vienna Conference, which clearly showed that the expression supra refers to the nature of the treaty. Against such a backdrop, the wording of Article 28 may seem somewhat bewildering, as obviously ‘the nature of the treaty’ is encompassed by ‘the treaty’ and, hence, the intention is not ‘otherwise’ established. However unsatisfactory the drafting of Article 28 may be in this respect, the solution is nonetheless not in doubt.56 (p. 727) 29. It has not always been widely accepted that retroactivity of a treaty can result from its nature rather than from its provisions. On the contrary, it has often been contended that retroactivity has to be expressly provided for in the instrument.57 This theory was, however, discarded when the Vienna Conference rejected an amendment submitted by Austria and Greece which aimed at deleting the part of the provision under which retroactivity can be inferred from the nature of the treaty.58 30. This being said, the exact meaning of the ‘nature’ of a treaty has still to be appraised. It seems that the term actually refers to the object of the treaty.59 Certain treaties thus apply retroactively due to their very object, although the intention of the contracting parties does not appear from the treaty provisions. In such a case, this intention is, in a way, conveyed by the object itself: by concluding a treaty on that particular object, the parties necessarily intended to bestow a retroactive effect upon the instrument. No doubt the distinction between the latter hypothesis and that of the intention implicitly appearing from the treaty provisions60 is far from always being clear-cut, since the object of a treaty can only be determined in the light of the provisions of the treaty. 31. Furthermore, it turns out that few treaties the object of which would entail retroactive operation can, basically, be cited—it being understood that interpretation agreements61 are probably not wholly relevant in this respect as the authentic interpretation that they contain is considered as ab initio forming one body with the construed provisions. Besides, it does not really make sense to insist, during the travaux préparatoires, on the possibility of some ‘natural’ retroactivity,62 whereas at the time no one has a clear picture of the potential applications of such a theory.63 Seemingly, the ILC as well as the Conference wanted to take the existing case law into account. 32. True, in the Mavrommatis Palestine Concessions case, the PCIJ held that ‘an essential characteristic’ of Protocol XII to the Treaty of Lausanne of 24 July 1923 (which was drawn up in order to fix the conditions governing the recognition and treatment by the contracting parties of certain concessions granted by the Ottoman authorities before the conclusion of the Protocol) was that ‘its effects extend to legal situations dating from a time previous to its own existence’.64 By the same token, in the Ambatielos case, the ICJ (p. 728) had decided that a treaty can apply retroactively provided that there exists a ‘special clause’ or a ‘special object’ necessitating such a retroactive operation.65

References 33. These decisions could not be ignored. However, the fact remains that, in practice, establishing the intention to grant the treaty retroactive effect will often prove difficult if the intention does not ‘appear’ from the treaty provisions. The ICJ briefly hinted at the ‘object’ of the Genocide Convention in the aforesaid judgment of 11 July 1996, which, as outlined supra, is likely to result in the Convention applying retroactively.66 Nevertheless, this allusion is merely presented as an indirect confirmation of the previous reasoning of the Court.67 Accordingly, it is questionable whether this can be regarded as an authentic instance of retroactivity stemming from the object of a treaty. frédéric dopagne*

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Footnotes: 1 P. Pescatore, Introduction à la science du droit (Luxembourg: Office des Imprimés de l'Etat, 1978), p 315. 2 D. Bindschedler-Robert, ‘De la rétroactivité en droit international public’, Recueil d'études de droit international en hommage à P. Guggenheim (Geneva: IUHEI, 1968), p 185. See also J. Heron, Principes du droit transitoire (Paris: Dalloz-Sirey, 1996), p 43. 3 This principle is so closely linked to the very concept of law that it seems also to apply to other sources than treaties, notably to unilateral acts of international organizations. See eg, as regards the regulations applicable to the UN peacekeeping forces, P. Tavernier, Recherches

sur l'application dans le temps des actes et des règles en droit international public (Paris: LGDJ, 1970), p 62, and, as regards the secondary legislation of the European Community, R.-E. Papadopoulou, Principes généraux du droit et droit communautaire (Brussels: Bruylant; Athens: Sakkoulas, 1996), pp 210 ff. 4 J. Basdevant, Dictionnaire de la terminologie du droit international (Paris: Sirey, 1960), p 237. See also J. Salmon (ed.), Dictionnaire de droit international public (Brussels: Bruylant/AUF, 2001), pp 388–9. 5 See P. Tavernier, supra n 3, pp 12 ff. 6 See infra para. 20. 7 See notably M. Sørensen, ‘Le problème dit du droit intertemporel dans l'ordre international’, Ann IDI, 1973, pp 89 and 93. See however the resolution eventually adopted by the Institut at its Wiesbaden session, dealing with the intertemporal law strictly speaking but also with the question whether interpretation must take place at the time of the formulation of the rule or at the time when that rule is applied (Ann IDI, 1975, pp 536 ff). 8 H. W. Briggs, ‘Reflections on Non-Retroactivity of Treaties’, REDI, 1968, p 320. 9 See esp. the arbitral award of Max Huber in the case relating to the Island of Palmas, 4 April 1928, RIAA, vol. II, p 839, as well as the case law of the European Commission of Human Rights. Application no. 214/56, De Becker v Belgium, 9 June 1958, YBECHR, 1960, p 486. 10 See eg Australia, Federal Court (General Division), Victrawl Pty Ltd v Aotc Ltd and Others, 29 September 1993, ILR, vol. 100, p 486; Australia, High Court, Victrawl Pty Ltd v Telstra Corporation Ltd and Others, 3 October 1995, ILR, vol. 107, p 142; intervention of the delegate of Tunisia during the debate on Art. 77 (now Art. 4), Official Records, Summary Records, 2nd session, 103rd meeting, p 334, para. 52; E. de la Guardia and M. Delpech, El derecho de los tratados y la Convencion de Viena de 1969 (Buenos Aires: La Ley, 1970), p 289. 11 See eg the aforementioned resolution of the Institut de droit international, para. 1 (Ann IDI, 1975, pp 536 ff). 12 See Art. 45 of the Treaty, ILM, 1995, p 360. 13 Following a comment made by Israel, Sir H. Waldock had proposed on second reading to insert a paragraph to that effect in the provision concerning non-retroactivity of treaties (Sixth Report on the Law of Treaties, A/CN.4/186 and Add.1–7, ACDI, 1966, vol. II, p 63, para. 2). The proposition was rejected, but exclusively for convenience reasons, not on substantial grounds (see the interventions of various members of the Commission during the debate of the 850th meeting, ACDI, 1966, vol. I, Part Two, pp 39 ff). 14 See P. Tavernier, supra n 3, pp 187–9, and the intervention of Mr Briggs, ACDI, 1964, vol. I, 730th meeting, p 42, para. 23. 15 As rightly noted by the delegate of Portugal, Official Records, CRA, 1st session, 30th meeting, pp 159–60, paras 16–18. 16 See Art. 14 of the Articles on responsibility of States for internationally wrongful acts (A/RES/56/83). See also A. Bleckmann, ‘Die Nichtrückwirkung völkerrechtlicher Verträge. Kommentar zu Art. 28 der Wiener Vertragsrechtskonvention’, ZaöRV, 1973, p 44. 17 See ICJ, Interhandel, Preliminary Objections, judgment of 21 March 1959, ICJ Reports 1959, p 22. 18 30 August 1924, Series A, no. 2, p 35. 19 See the ILC commentary on Art. 24 (now Art. 28), para. 2, in ILC Report to the General Assembly on the work of its 18th meeting, ACDI, 1966, vol. II, p 212. 20 See infra para. 19. 21 Contra, R. Higgins, ‘Time and the Law. International Perspectives on an Old Problem’, ICLQ, 1997, p 502. 22 Contra, PCIJ, Phosphates of Morocco, Preliminary Objections, 14 June 1938, Series A/B, no. 74, p 24. This passage was criticized by Sir H. Waldock, Third Report on the Law of Treaties, A/CN.4/167 and Add.1–3, ACDI, 1964, vol. II, p 11, para. 3. 23 See the ILC commentary on Art. 24 (now Art. 28), para. 2 in fine, in ILC Report to the General Assembly on the work of its 18th meeting, ACDI, 1966, vol. II, p 212, and S. Bastid, Les traités dans la vie internationale. Conclusion et effets (Paris: Economica, 1985), p 122. 24 Preliminary Objections, judgment of 11 July 1996, ICJ Reports 1996, p 617, para. 34. 25 B. Stern, ‘Les questions de succession d'Etats dans l'affaire relative à l'Application de la Convention pour la prévention et la répression du crime de génocide devant la Cour internationale de Justice’ in N. Ando, E. Mcwhinney, and R. Wolfrum (eds), Liber Amicorum Judge Shigeru Oda, vol. 1 (The Hague: Kluwer Law International, 2002), p 304; S. MaljeanDubois, ‘L'affaire relative à l'application de la convention pour la prévention et la répression du crime de génocide (Bosnie-Herzégovine c Yougoslavie). Arrêt du 11 juillet 1996, exceptions préliminaires’, AFDI, 1996, p 372. See also the Dissenting Opinion of Judge Ad Hoc Kreca, ICJ Reports 1996, pp 794–5, para. 120, quoting the ILC commentary. 26 See ICJ, Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion of 28 May 1951, ICJ Reports 1951, p 23. 27 As for the ‘object and purpose’ of the Convention, to which the judgment of 11 July 1996 (mysteriously) refers in the passage mentioned supra, see infra para. 28. 28 4 April 1928, RIAA, vol. II, p 845. The aforementioned resolution adopted by the Institut de droit international at its Wiesbaden session tends to combine both approaches:

1. Unless otherwise indicated, the temporal sphere of application of any norm of public international law shall be determined in accordance with the general principle of law by which any fact, action or situation must be assessed in the light of the rules of law that are contemporaneous with it. (Ann IDI, 1975, p 536) 29 M. Sørensen, supra n 7, p 19. 30 See also ICJ, case concerning the Land and Maritime Boundary Between Cameroon and Nigeria, Merits, judgment of 10 October 2002, ICJ Reports 2002, pp 404–5, para. 205, where the Court gave effect to the legal consequences of a treaty of protection while this mode of acquisition does not reflect current international law. 31 See the case law referred to by the ILC in its commentary on Art. 13 of the Articles on responsibility of States for internationally wrongful acts (A/RES/56/83), in ILC Report to the General Assembly on the work of its 53rd session, A/56/10, pp 141 ff, paras 2 ff. Article 13 reads as follows: ‘An act of a State does not constitute a breach of an international obligation unless the State is bound by the obligation in question at the time the act occurs’. 32 Case concerning Right of Passage over Indian Territory, Merits, 12 April 1960, ICJ Reports 1960, p 37. See generally the commentary on Art. 4 of the Vienna Convention. 33 I. Sinclair, The Vienna Convention on the Law of Treaties (2nd edn, Manchester: Manchester University Press, 1984), p 86. During the Vienna Conference, Finland still proposed that Art. 24 (now Art. 28) be explicitly qualified by Art. 15 (now Art. 18) (A/CONF.39/C.1/L.91), but this amendment was rejected by the Drafting Committee (see the intervention of the Chairman of the Committee, Mr Yasseen, Official Records, CRA, 1st session, 72nd meeting, p 428, para. 51). 34 See supra para. 11. 35 See generally the 2nd part of the book by P. Tavernier, supra n 3, pp 177 ff. 36 See the intervention of Mr Reuter, ACDI, 1966, vol. I, Part Two, 849th meeting, p 39, para. 88. Draft Art. 24 submitted by Sir G. Fitzmaurice contained an express provision (para. 1) specifically devoted to the immediate effect of treaties (Fourth Report on the Law of Treaties, A/CN.4/120, ACDI, 1959, vol. II, p 47). See also draft Art. 57 proposed by Sir H. Waldock (Third Report on the Law of Treaties, A/CN.4/167 and Add.1–3, ACDI, 1964, vol. II, pp 10–11). 37 An amendment submitted by the United States (A/CONF.39/C.1/L.155) and backed by other delegations (see notably the interventions of the delegates of Portugal, Canada, France, the United Kingdom, and Israel, Official Records, CRA, 1st session, 30th meeting, respectively p 173, paras 16–18, pp 159–60, para. 27, p 160, para. 32, p 161, para. 33, p 161, para. 39, p 162) purported to delete this part of the sentence. It was rejected by 47 votes against, 23 in favour, and 17 abstentions (ibid, p 162, para. 46). 38 Intervention of Mr Ago, ACDI, 1966, vol. I, Part Two, 850th meeting, p 43, para. 54; intervention of the delegate of Cuba, Official Records, Summary Records, 2nd session, 13th meeting, p 55, para. 47. 39 Sir H. Waldock, Third Report on the Law of Treaties, A/CN.4/167 and Add.1–3, ACDI, 1964, vol. II, p 12, para. 5; commentary on Art. 24 (now Art. 28), para. 3, in ILC Report to the General Assembly on the work of its 18th session, ACDI, 1966, vol. II, p 212. 40 Intervention of Mr Yasseen, ACDI, 1964, vol. I, 730th meeting, p 41, para. 7; T. O. Elias, The Modern Law of Treaties (Leiden: Sijthoff, 1974), p 48. 41 Intervention of Mr Jiménez de Aréchaga, ACDI, 1966, vol. I, Part Two, 850th meeting, p 40, para. 13; commentary on Art. 24 (now Art. 28), para. 3, in ILC Report to the General Assembly on the work of its 18th session, ACDI, 1966, vol. II, p 212. 42 PCIJ, Phosphates of Morocco, Preliminary Objections, 14 June 1938, Series A/B, no. 74, p 24. 43 Application no. 655/59, X v Federal Republic of Germany, 3 June 1960. 44 See eg European Commission on Human Rights, Application no. 214/56, De Becker v Belgium, 9 June 1958. 45 As regards the postponed effect of the Vienna Convention itself, see the commentary on Art. 4 of the Convention, at paras 12 ff. 46 See supra para. 11. Article 6(D) of the Rules of Procedure and Evidence of the International Criminal Tribunal for the former Yugoslavia (which admittedly are not a treaty) tends to combine immediate effect and postponed effect: according to that provision, the amendments to the Rules ‘shall enter into force seven days after the date of issue of an official Tribunal document containing the amendment, but shall not operate to prejudice the rights of the accused or of a convicted or acquitted person in any pending case’. In principle, the amendments are thus immediately applicable to the pending cases. However, in the three hypotheses mentioned, they apply only to the forthcoming cases. In this respect, see ICTY (Appeals Chamber), Case IT-95–14-PT, Prosecutor v Blaskic (sub poenae), 29 July 1997, ILR, vol. 110, p 679. 47 See esp. ICJ, Case Ambatielos, Preliminary Objections, 1 July 1952, ICJ Reports 1952, p 40. 48 Own translation. M. Chemillier-Gendreau, Le rôle du temps dans la formation du droit international, Cours et travaux de l'IHEI (3) (Paris: Pedone, 1987), p 54. See also P. Tavernier, supra n 3, pp 46 ff. 49 Contra, see draft Art. 21, para. 1(c) submitted by Sir H. Waldock, First Report on the Law of Treaties, A/CN.4/144, ACDI, 1962, vol. II, p 71. 50 Sir G. Fitzmaurice, Fourth Report on the Law of Treaties, A/CN.4/120, ACDI, 1959, vol. II,

p 74, para. 122. 51 ILC commentary on Art. 24 (now Art. 28), para. 1, in ILC Report to the General Assembly on the work of its 18th session, ACDI, 1966, vol. II, p 211; intervention of Mr de Luna, ACDI, 1964, vol. I, 730th meeting, p 43, para. 31. 52 ‘A successor State may, at the time of expressing its consent to be bound by the present Convention or at any time thereafter, make a declaration that it will apply the provisions of the Convention in respect of its own succession of States which has occurred before the entry into force of the Convention in relation to any other contracting State or State Party to the Convention which makes a declaration accepting the declaration, of the successor State. Upon the entry into force of the Convention as between the States making the declarations or upon the making of the declaration of acceptance, whichever occurs later, the provisions of the Convention shall apply to the effects of the succession of States as from the date of that succession of States.’ In this respect, see the respective interventions of Mr Ouchakov and Sir Ian Sinclair during the debate on draft Art. 28 of the Vienna Convention of 21 March 1986, ACDI, 1982, vol. I, 1701st meeting, pp 14–15, paras 3–4. 53 Intervention of Mr Yasseen, ACDI, 1964, vol. I, 730th meeting, pp 40–1, para. 6. On this point, see the commentaries on Arts 31 and 32 of the Vienna Convention. 54 In this respect, see the award of 14 September 1872 in the Alabama arbitration, J. B. Moore, History and Digest of the International Arbitrations to which the United States has been a Party (Washington DC: Government Printing Office, 1898), vol. 1, p 653. 55 See generally V. Haak, ‘ “Unless the Treaty otherwise provides” and Similar Clauses in the ILC's 1966 Draft Articles on the Law of Treaties’, ZaöRV, 1967, pp 544 ff. 56 See the ILC commentary on Art. 24 (now Art. 28), para. 4 in fine, in ILC Report to the General Assembly on the work of its 18th session, ACDI, 1966, vol. II, p 212. 57 See eg the assertion of the agent of the government of Italy before the United States–Italy Conciliation Commission in the case Carnelli, decision of 4 March 1952, RIAA, vol. XIV, p 91; draft Art. 21 proposed by Sir H. Waldock, First Report on the Law of Treaties, A/CN.4/144, ACDI, 1962, vol. II, p 71 (but inconsistent with his draft Art. 57 (now Art. 28)); comments of the government of Turkey on Art. 56 (now Art. 28), ACDI, 1966, vol. II, p 62, para. 4; the reservations expressed by M. Sørensen, supra n 7, p 95. 58 A/CONF.39/C.1/L.5 and Add.1 (and see the intervention of the delegate of Austria, Official Records, CRA, 1st session, 30th meeting, pp 158–9, para. 1): rejected by 46 votes against, 24 in favour, and 18 abstentions (ibid, p 176, para. 45). See also the distinct vote requested by the delegate of Austria on the controversial part of the provision, during the second session of the Conference, ibid, 2nd session, 13th meeting, p 59, para. 48 (adopted by 78 votes in favour, 5 against, and 12 abstentions; the Article as a whole was adopted by 97 votes in favour, 0 against, and one abstention). 59 Interventions of Sir H. Waldock, ACDI, 1964, vol. I, 730th meeting, p 41, para. 13, and Mr Paredes, ibid, p 46, para. 35. 60 Supra para. 27. 61 See eg the case of the Territory of Chamizal, International Boundary Commission (MexicoUnited States), 15 June 1911, RIAA, vol. XI, p 309. 62 See eg the intervention of Mr Reuter, ACDI, 1964, vol. I, 730th meeting, p 42, para. 19. 63 See, however, the intervention of Mr Briggs with respect to treaties of extradition, ACDI, 1964, vol. I, 730th meeting, p 42, para. 23. 64 30 August 1924, Series A, no. 2, p 34. 65 Preliminary Objections, 1 July 1952, ICJ Reports 1952, p 40. Both this case and the Mavrommatis case are cited by the ILC commentary on Art. 24 (now Art. 28), para. 1, in ILC Report to the General Assembly on the work of its 18th session, ACDI, 1966, vol. II, pp 211–12. 66 Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections, judgment of 11 July 1996, ICJ Reports 1996, p 617, para. 34. On this point, see supra para. 13. 67 ‘This finding [the Court has jurisdiction to give effect to the Genocide Convention with regard to the relevant facts which have occurred since the beginning of the conflict which took place in Bosnia and Herzegovina] is, moreover, in accordance with the object and purpose of the Convention’ (ibid, emphasis added). * Lecturer, University of Louvain (UCL), Belgium.

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Volume I, Part III Observance, Application and Interpretation of Treaties, s.2 Application of Treaties, Art.28 1986 Vienna Convention Frédéric Dopagne From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

(p. 729) 1986 Vienna Convention Article 28 Non-retroactivity of treaties Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party.

Bibliography See the references cited in the bibliography pertaining to Article 28 of the Vienna Convention of 1969 1. Article 28 was scarcely discussed during the elaboration of the 1986 Convention. The extension of the principle of non-retroactivity of treaties to the treaties concluded by international organizations was indeed not contested, either by members of the ILC or by States participating in the Vienna Conference.1 The reasons underlying non-retroactivity of treaties between States2 are wholly relevant with respect to treaties to which one or several international organizations are a party: since the principle relates ‘to the very essence of the conventional mechanism’,3 the nature of the subjects of international law which conclude the treaty has little importance. 2. Admittedly, at some point in his work the Special Rapporteur mentioned the existence of ‘specific problems relating to international organizations’.4 Nevertheless, he (rightly) felt that, in accordance with the general line of conduct adopted by the Commission, he should ‘refrain from any attempt to improve on the [1969] Convention’.5 The wording of Article 28 is accordingly unchanged in the 1986 Convention. Moreover, these ‘specific problems relating to international organizations’ remain somewhat mysterious. In any event, the ILC commentary does not seem to pay them any consideration: ‘[n]either the machinery nor the regime of the treaties covered by the present draft articles offer any reasons for departing from the text of the [1969] Vienna Convention’.6 3. It follows from the foregoing that the scope of the principle of non-retroactivity of treaties is identical in both Conventions.7 Suffice it to point out here that the issue of the (p. 730) temporal application of compromissory clauses is not totally absent when international organizations are involved. True, only States may be parties in (contentious) cases before the International Court of Justice.8 However, international organizations are not prevented from conferring jurisdiction on an arbitral tribunal.9 In the latter case, the temporal effects of the compromissory clause must be determined. As outlined in the commentary on Article 28 of the 1969 Convention,10 it seems that, failing any express limitation, the arbitral tribunal has jurisdiction ratione temporis with respect to every dispute submitted to it after the entry into force of the clause, even if the dispute has arisen (or originates in facts which have occurred) before such a date.

References 4. Pursuant to the first words of Article 28, the contracting parties are allowed to grant the treaty retroactive effect. Parenthetically, treaties to which at least one international organization is a party reveal a ‘retroactivity rate’ above average.11 Many of the explicit provisions providing for retroactive application of the treaty are found in the field of UN peacekeeping operations. Indeed, in some urgent situations, the peacekeeping force must be set up without its status being previously defined. The agreement (SOFA) between the United

Nations and the host State then applies retroactively as from the date of arrival of the first elements of the force,12 and the agreements with the contributing States apply retroactively as from the date on which the troops left their country.13

References 5. The intention to afford the treaty a retroactive effect can be inferred from the nature (the object) of the treaty. This principle is enshrined in the Vienna Convention of 1969.14 It has also been endorsed in the 1986 Convention. Nonetheless, actual instances relating to treaties concluded by international organizations seem to be, in this respect, as scant as in the field of treaties between States. *

FRÉDÉRIC DOPAGNE

Footnotes: 1 See the intervention of Mr Ushakov, ACDI, 1982, vol. I, 1701st meeting, pp 14–15, para. 3, stating that the extension of the principle to the treaties to which international organizations are parties is ‘obvious’. 2 See the commentary on Art. 28 of the Vienna Convention of 1969, at para. 1. 3 P. Reuter, Fourth Report on the question of treaties concluded between States and international organizations, or between two or more international organizations, ACDI, 1975, vol. II, p 27, para. 3. 4 Ibid, p 40. 5 Ibid. 6 Commentary on Art. 28, in ILC Report to the General Assembly on the work of its 34th session, ACDI, 1982, vol. II, Part Two, p 40. 7 See the commentary on Art. 28 of the 1969 Convention, Section B. 8 Article 34, para. 1 of the Statute of the Court. 9 See eg Art. 287, para. 3 of the United Nations Convention on the Law of the Sea (juncto Art. 1(2)(2)). 10 Supra para. 11. 11 P. Tavernier, Recherches sur l'application dans le temps des actes et des règles en droit international public (Paris: LGDJ, 1970), p 40. 12 See eg the Agreement of 8 February 1957 on the status of the United Nations Emergency Force, retroactive to 15 November 1956, cited by P. Tavernier, ibid, p 48. 13 See eg, as regards the UN Emergency Force, the letter of 21 June 1957 sent by the UN Secretary-General to the contributing States, cited by P. Tavernier, ibid, p 48. 14 See the commentary on Art. 28 of the 1969 Convention, at para. 28. * Lecturer, University of Louvain (UCL), Belgium.

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Volume I, Part III Observance, Application and Interpretation of Treaties, s.2 Application of Treaties, Art.29 1969 Vienna Convention Syméon Karagiannis From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Extraterritorial application of treaties — Customary international law — Treaties, application — Territory, title

(p. 731) 1969 Vienna Convention Article 29 Territorial scope of treaties Unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory. A. General characteristics 732 Dual sense of the territorial scope of treaties 732 Article 29 and customary law 734 B. Scope of the exception included in Article 29 735 C. The problem of the ‘colonial clause’ 740 The debate on the ‘colonial clause’ 740 Transformations of the ‘colonial clause’ 742 D. Sub-national entities and territorial scope of treaties 745 Unclear data relating to the problem 746 Relative dissatisfaction with the ‘federal clause’ 747 E. Other questions 751 What constitutes territory under Article 29? 751 The question of the ‘extraterritorial’ application of treaties 754

Bibliography Coomans, F. and Kamminga, M. (eds), Extraterritorial Application of Human Rights Treaties (Anvers: Intersentia, 2004) Coulée, F., ‘Collectivités territoriales non étatiques et champ d'application des traités internationaux’ in SFDI, Les collectivités territoriales non étatiques dans le système juridique international (Paris: Pedone, 2002), pp 95–124 Fawcett, J. E. S., ‘Treaty Relations of British Overseas Territories’, BYBIL, 1949, pp 86– 107 Gondek, M., ‘Extraterritorial Application of the European Convention on Human Rights: Territorial Focus in the Age of Globalization?’, NILR, 2005, pp 349–87 Karagiannis, S., ‘L'aménagement des droits de l'homme outre-mer: la clause des “nécessités locales” de la Convention européenne’, RBDI, 1995, pp 224–305 —— ‘Le territoire d'application de la Convention européenne des droits de l'homme. Vetera et nova’, RTDH, 2005, pp 33–120 Lagrange, E., ‘L'application de la Convention de Rome à des actes accomplis par les Etats parties en dehors du territoire national’, RGDIP, 2008, pp 521–65 Lampue, P., ‘L'application des traités dans les territoires et départements d'outre-mer’, AFDI, 1960, pp 907–24 Looper, R. L., ‘“Federal State” Clauses in Multilateral Instruments’, BYBIL, 1955–56, pp 162–203 Lush, C., ‘The Territorial Application of the European Convention on Human Rights: Recent Case Law’, ICLQ, 1993, pp 897–908 Opeskin, B. R., ‘Federal States in the International Legal Order’, NILR, 1995, pp 353–86 Ress, G., ‘Problems of Extraterritorial Human Rights Violations—the Jurisdiction of the European Court of Human Rights: the Bankovic Case’, IYBIL, 2003, pp 51–67 (p. 732) Stern, B., ‘Quelques observations sur les règles internationales relatives à l'application extraterritoriale du droit’, AFDI, 1986, pp 7–52 Yuen-Li, Liang, ‘Colonial Clauses and Federal Clauses in United Nations Multilateral Instruments’, AJIL, 1951, pp 108–128 1. One can find in the 1969 Convention on the Law of Treaties (as well as in its counterpart of 1986) Articles that may not exactly correspond to general international law, Articles likely to be controversial or that may prove difficult to interpret. Yet, at first sight there appears to be no cause for concern when considering Article 29. It looks rather easy to understand and seems not to have caused much debate in the course of its preparation. Its conditions of adoption at the Vienna Conference in 1969, where 97 delegations voted in favour of it with no votes against or any abstentions, were also rather unusual. It did not give rise to any reservations or interpretative statements, another fact that simply adds to its singularity. Furthermore, two States (Finland and Greece) even put forward proposals to the UN General Assembly seeking to delete what has become Article 29 from the ILC 1966 draft, arguing that it was useless.1 2. The Article on the territorial scope of treaties was ultimately not deleted but what has been said until now should not lead one to think that no interpretative difficulties of any kind will be encountered when analysing it. Even though one might consider the task of interpreting the obvious to be an easy one, if one examines the text more closely, one can see that Article 29 does present a number of difficulties. However, much of what was considered by the ILC, the 1969 Vienna Conference, or by Special Rapporteur Sir Gerald Fitzmaurice is no longer part of today's interpretative difficulties.2

A. General characteristics 3. Even though it has not always been easy to define the expression ‘territorial application’ of treaties with precision, the rule stated in Article 29 of the 1969 Vienna Convention on the Law of Treaties is nonetheless usually considered to reflect general international law.

Dual sense of the territorial scope of treaties 4. Every treaty has a specific subject matter and States bound by the treaty are to apply it in good faith in both its temporal and spatial dimensions. For the non-experts, however, a treaty's spatial application may lead one to think that it applies only to what forms the specific subject matter of the treaty. For instance, one could easily think that the 1971 Ramsar Convention on Wetlands of International Importance (2 February 1971) applies to ‘areas of marsh, fen, peatland or water, whether natural or artificial, permanent or temporary, with water that is static or flowing, fresh, brackish or salt, including areas of marine water the depth of which at low tide does not exceed six metres’3 and that it (p. 733) applies solely to such areas within the territory of a State party to it. Likewise, one could think that the 1985 Granada Convention on the Protection of the Architectural Heritage of Europe applies solely to monuments, buildings, and structures defined in Article 14 or further that the 1923 Geneva Convention and Statute on the International Regime of Maritime Ports (9 December 1923) applies solely to ‘ports which are normally frequented by sea-going vessels and used for foreign trade’.5 The list of such treaties is endless, and for each of them it would be possible to think that the definition that it gives of the spaces or subject matters with which it deals fully answers the question of the applicability of the the treaty. In short, it would be possible to believe that the description, more or less precise, of the material object of the treaty coincides with what one can call the territorial scope of the treaty concerned.

References 5. The ILC itself sometimes followed the approach supra of the notion of the territorial application of treaties and has not always been able clearly to distinguish between the subject matter of a treaty and its territorial scope. For example, in the 19646 and 19667 Commission commentaries on the corresponding drafts, one reads that ‘certain types of treaty, by reason of their subject matter, are hardly susceptible of territorial application in the ordinary sense’. Most treaties, however, have application to territory—‘have their effect territorially’, in the 1964 commentary—and a question may arise as to what is their precise scope territorially. In some cases, the provisions of the treaty expressly relate to a particular territory or area. Both the 1964 and the 1966 commentaries give as relevant examples the 1920 Spitsbergen Treaty8 and the 1959 Antarctica Treaty.9 If one uses this quite restrictive formulation of the territorial scope of a treaty, one notes that these two treaties could be applied solely in the territory that respectively constitutes their subject matter.

References 6. The ILC itself seems to have given vague support to this approach of the territorial application of treaties. The phrase in the 1964 commentary referred to ‘the field of application of a treaty’ and the commentary of 1966 to ‘the application of a treaty extending to the whole of the territory of each of the parties’. For reasons having nothing to do with the present discussion, these phrases were replaced at the Vienna Conference by the present wording proposed by Ukraine: ‘a treaty binds each of the parties with regard to all its territory’. One would think that even the expression ‘territorial application of treaties’ itself thus deleted from the body of Article 29 (although it remained as its title) would naturally lead to such restrictive interpretation. 7. Without a doubt this restrictive conception of territorial scope is incorrect for a number of reasons. First, although it makes an implicit distinction between the material (p. 734) subject and the legal application of a treaty, it clearly favours the former. It should be remembered, however that a treaty is above all a legal instrument. The question of its material application is in some way only a secondary one. This becomes very clear when something goes wrong with the execution of a treaty and in that sense relates closely to the ‘pathology’ of international relations (international responsibility, for instance). To return to the example of the Ramsar Convention, we note that, in this case, different categories of State agents, no matter where they are located, must comply with its provisions, not simply the biologists, ornithologists, or police officers acting in or near the Ramsar Convention wetlands.

References 8. Secondly, there is a striking contradiction between (1) the principle, approved quite early on, of the binding effect of a treaty in respect of the entire territory of a State party to the treaty and (2) the idea of applying the treaty only to those parts of a State territory that form the territorial subject matter of the treaty. This contradiction becomes quite serious when one considers a treaty such as the 1959 Antarctica Convention (1 December 1959) (especially for States having no territorial claims on the frozen continent). The same can also be said in respect of the 1979 Moon Treaty,10 which prohibits territorial claims on this celestial body. Territorial scope and subject matter of a treaty are obviously two quite different things.

References

9. The ILC commentaries mentioned supra, which are quite misleading as we have noted, are surprising, however, if one considers the clear position taken by ILC Special Rapporteur Sir Humphrey Waldock. Sir Humphrey distinguished clearly between ‘the object to which the treaty applies’ and ‘the territorial application of a treaty’. And in his personal commentary, Fitzmaurice's successor goes on to say: The ‘territorial application’ of a treaty signifies the territories which the parties have purported to bind by the treaty and which, therefore, are the territories affected by the rights and obligations set up by the treaty. Thus, although the enjoyment of the rights and the performance of the obligations contained in a treaty may be localized in a particular territory or area, as in the case of Antarctica, it is the territories with respect to which each party contracted in entering into the treaty which determine its territorial scope. Sir Humphrey concludes that ‘in such a case is the application of the treaty [not] confined to the particular territory or area’.11 Besides, as he put it during the 1964 debate, ‘the real problem was that of the territory with regard to which the treaty was binding, rather than the territory in which it was to be performed’.12 This way of thinking should be kept in mind in the discussion to follow.

Article 29 and customary law 10. In his 1959 report to the ILC, Fitzmaurice analysed the territorial application of treaties in four long, complex, and, in the end, not very useful articles.13 The credit for simplifying such complexity goes undoubtedly to Waldock in his Third Report to the Commission,14 as well as to the Commission itself in the report addressed to the General (p. 735) Assembly in 1964.15 Although the actual wording of Article 29 goes back to the Vienna Conference, it has to be admitted that ever since the 1964 Waldock Report the principle underlying this Article had been accepted. Some of the complications of the Fitzmaurice draft still remained but only as a part of the commentaries on this provision respectively written by Waldock and the ILC. 11. The principle according to which ‘a treaty is binding upon each party in respect of its entire territory’ seems to have been accepted without any difficulty, at least as far as the ‘metropolitan territory’ of a contracting State is concerned. Sir Humphrey Waldock and the ILC referred at length to the practice of some States (although few in number), to case law (although, primarily, to domestic case law), and to authors' writings on the subject.16 The principle has become even more consensual in that an appropriate exception to it was also approved at the same time: ‘unless a different intention appears from the treaty or is otherwise established’. In other words, the principle remains valid ‘unless a different intention appears from the treaty or is otherwise established’. 12. Essentially, then, a sort of auxiliary legal norm, Article 29 has not met with any notable difficulties from States. For instance, the United States observed that the definition of the scope of application of a treaty in this Article is ‘self-evident’.17 Kenya found the wording of Article 29 ‘comprehensive and lucid’.18 And as we have noted supra, Greece, in a rather odd yet at the same time eloquent tribute, even questioned the need for the Article, stating that it merely creates ‘a refutable legal presumption’.19 13. Can a legal norm that is ‘self-evident’, one that satisfies everyone, one that is unanimously adopted by an important codification conference, one that is confirmed some years later by another codification conference, then be anything other than a norm with strong customary character? After all, customary law loves nothing more than consensus, consistency, and flexibility. Furthermore, the a priori application of a treaty on the entire territory of a contracting State can be seen as yet another form of the principle of the interpretation of treaties in good faith by contracting States20 (Arts 26 and 31 of the Vienna Convention). Such a close link with one of the most central principles of international treaty law underlines again the customary nature of Article 29.21

B. Scope of the exception included in Article 29 14. Even if one considers that the provision of Article 29 reflects international customary law, a difficulty is likely to arise which is not certain to have been noted either by the ILC (p. 736) or by the case law, or even by the writings on the subject. The rule contained in the provision (ie a treaty is binding in respect of the entire territory of the contracting State) suffers a notable exception, which goes back to the different intention presumably expressed by contracting States. The question is to determine which, in this provision, is the place ascribed respectively to the rule and to its exception or, differently put, to determine up to what point, if ever, the exception could manage to overrule the rule. Certainly, in an orthodox legal discourse, such questions are easy to answer (interpretation stricto sensu of exceptions, etc.) but, progressively, some complications have appeared as far as the interplay between rule and exception in Article 29 is concerned. 15. This closely corresponds to what happened during the early stages of the crafting of Article 29. Indeed in the first stages of drafting, everything seemed—almost—clear. For example, in his 1964 commentary on the Article 29 draft, Waldock specifically emphasizes that ‘the territorial application of a treaty is essentially a question of the intention of the parties’22 but also insists on the fact that when a State does not intend to enter into the treaty obligations on behalf of and with respect to all its territory, it must make its intention ‘plain’.23 In the draft itself, the Special Rapporteur states that such ‘contrary intention’ should be ‘expressed in the treaty’24 and should ‘appear from the circumstances of its conclusion or the statements of the parties’; furthermore, said intention should be ‘contained in a reservation’.25 Despite the important simplification made by the Commission in its 1964 draft (‘unless the 26

contrary appears from the treaty’),26 the commentary to this provision (following Sir Humphrey) still requires that the general rule ‘should apply in the absence of any specific provision or indication in the treaty as to its territorial scope’.27 16. Nevertheless, in the commentary to its 1966 draft, while still requiring a ‘specific provision or indication in the treaty’ in order to allow the general rule to be defeated, the Commission concedes that the international jurisprudence and the writing of jurists on the question argue that ‘a treaty is to be presumed to apply to all the territory of each party unless it otherwise appears from the treaty’28 (‘à moins qu'une solution différente ne ressorte du traité ’, in the French version). More importantly, the 1966 ILC draft reinforces the exception, which from ‘unless the contrary appears from the treaty’ (the wording of 1964) now becomes (in 1966) ‘unless a different intention appears from the treaty or is otherwise established’. This wording change means that from now on a ‘different intention’ may be more easily established. Another change should also be noted. In the 1966 version (as well as in the provision's final version), the exception is no longer placed at the end of the phrase, as it was initially the case, but at the beginning. Thus in the grammatical structure of Article 29, the exception actually precedes the rule.29 This is an important point given that in international law language is never innocent.30 (p. 737) 17. Be that as it may, it is apparent that the exception in the final version has two parts. Its first element is also, chronologically speaking, the first to have been retained by the Commission in its 1964 draft. It is also more closely linked to the text of the treaty itself insofar as the said exception must ‘appear from the treaty’ itself (‘ressortir du traité ’; ‘desprender del tratado’). All this depends, of course, on the interpretation of the text of the treaty according to the usual methods of interpretation as set out in Articles 31 to 33 of the Vienna Convention. However, what one could term an ‘objective’ approach did not stand alone for very long. The 1966 ILC draft, drawing its inspiration from the 1964 Waldock draft, introduced a second element to the exception to the rule. This takes the form of a ‘different intention’ ‘otherwise established’ (‘par ailleurs établie’; ‘intención [que] const[a] de otro modo’). It is easy to see that this element, quite vague in itself, somewhat blurs the distinction between the rule and the exception to the rule, which could become a source of a dispute. It also undermines the rule of the restrictive interpretation of exceptions. 18. Thus the finding of a ‘different intention’ ‘otherwise established’ is subject to two conditions. First, such an intention must be ‘established’ with a sufficient degree of certainty; otherwise it would be very easy to overcome the rule stated in Article 29. Beyond this the ‘different intention’, if not stated within the treaty itself, must be looked for ‘elsewhere’. Far from constituting a form of limitation on the search for a ‘different intention’, this expression could just as easily mean that the judge or international arbitral tribunal ought to, as the need arises, look for it by ignoring the methods of interpretation recognized by the Vienna Convention. 19. To sum up, then, in the terms of the definitive version of Article 29, the ‘establishment’ of the ‘different intention’ can be effected by two different means—either by being ‘established otherwise’, as we have just seen, or by finding it ‘arising directly from the treaty’, that is to say, following the common rules of interpretation of treaties. The alternative contained in the exception cannot be ignored. In addition, there is no question of privileging one method over the other, the two having obviously been given equal weight. Now this leads to the inescapable conclusion that there is an increased possibility that an exception to the rule (that is to say, a ‘different intention’) could indeed be ‘established’. 20. Furthermore, it is helpful to point out several other problems that the expression ‘different intention’ can create. As stated supra, the word ‘intention’ refers above all to the subjective thinking of the authors of the treaty concerned. This implies that on the basis of some indication expressing this intention, the international judge or arbitral tribunal must then take on the delicate task of reconstituting the will of parties, with all the difficulties this entails. 21. One can also point out several additional difficulties, other than those inherent in any search for the subjective will of the parties. Which subjective wills are we really talking about here? Are they the intentions of the original authors of the treaty? Or do they include the subjective wills of the parties who adhere to the treaty later without having been able to (or wishing to, in some cases) participate in the treaty's preparation and who (hypothetically) could possess territory that might cause problems with regard to the application of Article 29? In the same way, should the ‘intention’ of the State with regard to the territory about which the particular problem of application arises take precedence over the ‘intention’ of the other contracting parties? Despite the absence of international case law on this point and even though the ILC's travaux speak of ‘the intention of the (p. 738) parties’ in the plural,31 it would seem that the judge or the international arbitral tribunal would have to take into account the ‘intention’ of that State, given that in such cases, specific internal constitutional considerations would enter into play.32 In considering a government's proposal according to which ‘a State, which is composed of distinct autonomous parts, should have the right to declare to which of the constituent parts of the State a treaty is to apply’, the Commission felt that the words ‘unless a different intention appears from the treaty or is otherwise established’ gave the text of what became Article 29 ‘the necessary flexibility…to cover all legitimate requirements in regard to the application of treaties to territory’. To put it differently, the Commission did not bluntly oppose such a right being given to a State, a right which was not, according to that government, to be considered a reservation. Some members of the Commission as well, primarily Shabtai Rosenne, referred to the same issue, stating that ‘reservations related to the substantive provisions of a treaty’ and ‘a reservation dealing with the territorial application of a treaty would be of a different character, unless the treaty expressly provided for that type of reservation’.33 Rosenne's statement and the Commission's quasi endorsement of this view

would largely benefit the State concerned. In particular, the State's declarations concerning the parts of its territory where the treaty ought (or ought not) to apply would be freed from the strict discipline to which a reservation is normally subject.

References 22. It is true, on the other hand, that by 2007 the ILC had provisionally adopted a draft guideline 1.1.3, according to which ‘a unilateral statement by which a State purports to exclude the application of a treaty or some of its provisions to a territory to which that treaty would be applicable in the absence of such a statement constitutes a reservation’.34 Professor Alain Pellet, the Special Rapporteur on reservations to treaties, had explained in the 1998 commentary to his Third Report on reservations that: as could be seen from Article 29 of the 1969 and 1986 Vienna Conventions, a statement by which a State purported to exclude the application of a treaty to a territory meant that it sought ‘to exclude or to modify’ the legal effect which the treaty would normally have and such a statement therefore constituted, according to the Special Rapporteur, a ‘true’ reservation, ratione loci.35 (p. 739) 23. Still there has not been any unanimity on this subject, even within the ILC. It is thus unclear that such a position accurately reflects what was achieved by the Vienna Conventions of 1969 and 1986. More specifically, this way of thinking seems to minimize the considerable scope of the exception to the principle of full territorial application (‘unless a different intention appears from the treaty or is otherwise established’). Guideline 1.1.3 mentioned supra would have been totally consistent with Article 29 if it had stated that a unilateral declaration of a State would constitute a reservation when it is not founded on a different intention emerging from the treaty or otherwise established.36 It may be that the Commission is actually working on the point in question not according to a logic of codification but rather in a logic of progressive development of international law, which in and of itself is perfectly acceptable. However, the States concerned must still be convinced. This would not seem to be an easy task, given the particularly negative reactions of the United Kingdom, one of the principal States interested in the matter.37 24. In any event and speaking hypothetically, if one remains faithful to Article 29 of the 1969 Vienna Convention and wants to establish a certain balance between the rule (integral territorial application) and the exception (modified territorial application), a certain flexibility is required. Such flexibility could be based on the general principle of law prohibiting the abuse of law (and the relationship of which with the rule of application of treaties in good faith is undeniable). Thus, for example, contrary to what some delegates at the Vienna Conference claimed,38 the territorial application of a treaty could not be determined in an absolute way at the time of the expression by such or such State of its consent to be bound by the treaty. If that had been the case, the territorial scope of the treaty would have been determined unilaterally by the ‘different intention’ of a single party with complete disregard for every contractual relationship that the ratification of a treaty creates and necessarily implies.39 Of course nothing forbids the explicit conferral of a State's future right to extend (or not to extend) subsequently the application of a treaty to a given territory.40 Similarly, it is possible for a treaty to refer, in regard to its application ratione loci, not to territories designated by name but rather to categories of territories. For example, a treaty that applies to French overseas departments is considered implicitly to give France the responsibility for determining to which French possessions the treaty in question will be applied, since it is of course understood that France has the power to grant or remove the status of overseas departments in relation to a French territorial possession. (p. 740) 25. As a preliminary practical conclusion relating to this point, one could argue that the exception to the principle laid down by Article 29, whatever difficulties may arise from its implementation, should not easily become subservient to the principle. Without claiming that the exception is the same as the principle (in which case Art. 29 would be stripped of any usefulness or indeed of any meaning), it is first necessary to exhaust any possibility that a ‘different intention’ was expressed. Without Article 29 leading to confusion or, even more, to a complete reversal of the burden of proof, that burden of proof should be lighter for a State that alleges during litigation that a territory, not necessarily belonging to it,41 is excluded from the scope of a treaty or, on the contrary, that it is included therein. The rest is a question of the specific case and the diligence of the judge. 26. On the other hand, of course, a clear reversal of the relationship between the rule and the exception to it can be written into the treaty itself, on the basis of appropriate clauses, the best known of which is the ‘colonial clause’. In such cases, the ‘different intention’ clearly arises from the treaty or, if one prefers, there is actually no need to look for such an ‘intention’ since the mere existence in the treaty of such a territorial clause is prima facie evidence of such an intention. The question of the ‘different intention’ should then logically refer to the sole words ‘unless…otherwise established’. The ILC's somewhat complicated travaux between 1964 and 1966 have decided otherwise.

C. The problem of the ‘colonial clause’ 27. Large portions of the political and legal stakes involved in Article 29 are likely to be lost on a non-initiated reader today. The vast—and highly sensitive—problem of the ‘colonial clause’ was, in fact, a major focus of the debates concerning the ‘territorial application’ of the treaties—both within the ILC and at the Conference of Vienna. Academic writing during this 42

period was also concerned with the issue.42 Almost all the colonial powers at the time carefully distinguished, in terms of law enforcement, a territorial base, that we could call the ‘metropolis’, as well as extra-metropolitan territories located, for the most part, overseas (known as ‘salt water colonies’). This distinction, which found its origin either in de facto situations (geographical remoteness, security issues,…), or in a more or less open kind of discrimination, was also reflected in the application of standards of international law, in particular treaty law, in the ‘colonies’. Insofar as the non-metropolitan territory could be considered to be part of the territory of the contracting State, or insofar as such a territory could or could not become the object for the treaty's application, there existed a problem of territorial modification of the application of the treaty, which a priori the ILC had to take into account.

The debate on the ‘colonial clause’ 28. Of course, the debate on the ‘colonial clause’ was made more difficult by the impossibility of defining in a global way the ‘colony’ to which an international treaty concluded by the (p. 741) metropolis could or43 could not apply. Classifying protectorates (such as, in the past, Morocco or Tunisia), associated ‘States’ (‘free’ or not), mandates and trust territories, ‘traditional’ colonies, extra-metropolitan possessions having the same status as the metropolis (as, eg, the Algerian departments of France), territories with unspecified status, entities enjoying a high degree of decentralization or condominia in the same legal category did not lend much rationality to the debate. Admittedly, all these territories do have in common the fact of being ‘dependent’, according to the generic term favoured by Fitzmaurice in his Fourth Report to the ILC44 or constituting ‘territories for whose international relations a State is responsible’, according to terminology once traditionally found in the Council of Europe45 conventions46 (and taken over, in a slightly different form, by Waldock in his Third Report).47 The problem with these terminologies is, of course, that they do not establish criteria for distinguishing between ‘metropolitan’ and ‘other’ territories and thus obscure even more the considerable difference between these two categories of territories, even though both Fitzmaurice and the Council of Europe also attach considerable importance to this distinction. Should it be noted that the United Kingdom government is ‘internationally responsible’ for the Pitcairn Islands just as much as it is for Kent or that the Wallis and Futuna Islands are, from an international point of view, as ‘dependent’ on the French government as is the Île-deFrance?

References 29. In addition to its complexity, the system suggested by Fitzmaurice in 1959 had the major fault of being very politically incorrect. Simplified as well as softened, the ‘colonial clause’ did not meet with any more success in Waldock's successive reports. It is worth noting that in the emotional climate of the time, many members of the ILC or States sought to condemn the ‘colonial clause’. The debate quickly became ideological. Behind the condemnation of the ‘colonial clause’, to the merits and demerits of which few paid any attention, speakers wished to condemn colonialism,48 a system which, (p. 742) incidentally, became considerably weakened between Fitzmaurice's 1959 report and Waldock's final report in 1966. Duly chastised, the Commission in its last report to the General Assembly chose to adopt a neutral wording, very close indeed to the wording of current Article 29,49 in order to replace the expression ‘territories for which the parties are internationally responsible’ (previously proposed by Waldock), given that the Commission was eager, as it explained, to ‘avoid the association of the latter term with the so-called “colonial clause”’.50 30. However, the simple avoidance of speaking about something that may be the source of embarrassment does not make that thing disappear as if by magic. The ILC elegantly sidestepped this issue by affirming that ‘its task in codifying the modern law of treaties should be confined to formulating the general rule regarding the application of a treaty to territory’.51 The flexibility of the rule (‘unless a different intention…’) is there to ensure this minimum duty to which the Commission will from now on restrict itself. The remainder will be a question of practice and interpretation of that practice.

Transformations of the ‘colonial clause’ 31. It is hardly surprising to note that the issue of the territorial application of treaties continues to interest first and foremost the former European colonial powers, those which (although at times without much enthusiasm) have retained some of their overseas possessions, including some for which the ‘colonial clause’ had been conceived in the past. 32. Permitting the exclusion of a given territory from the territorial scope of a treaty's application (for political, constitutional, economic, ethnic, religious, environmental, or other reasons) does not deprive the ‘clause’ of its usefulness. On the contrary and among other things, it is, and has often been, beneficial to the territory in question, albeit paradoxically, since it preserves the idea of a separation in relation to the rest of State territory—the ‘metropolis’—and thus allows in a certain way a legitimization of a future struggle for autonomy or even secession. 33. Ever since the 1950s the practice has been quite rich and has recently further expanded, proving that the modulation of the territorial effects of treaty application remains useful. And since it is useful, it cannot be condemned, even if one does condemn the expression ‘colonial clause’ which, it is true, has become increasingly problematic in most languages today. Words are responsible for more evil than things. Language is less neutral than reality. 34. It is impossible, of course, to draw up a complete list of treaties with flexible territorial

application. However, two key treaties have emerged in the conventional history of Europe during the last half century. The first example relates to Article 56(1) of the European Convention on Human Rights52 which, as has already been mentioned, allows a contracting State to extend the Convention to any or all ‘of the territories for whose international relations it is responsible’. In other words, the principle is here the non-extension of the Convention to these territories, the precise determination of which is problematic, to say the least. Moreover, this provision provides a clear example of the (p. 743) possibility for a single State party to determine, largely unilaterally, the territorial scope of a treaty. Implemented quite early by Denmark,53 the United Kingdom,54 and the Netherlands,55 the modification mentioned supra has been historically one of the causes—or one of the pretexts—that prevented the country of René Cassin from ratifying the Convention for quite some time, precisely because of the possibility it afforded to exclude French overseas possessions from the protection of the Convention. Actually this was quite a specious argument because it would have been sufficient for France to notify the extension of the Convention to any territory, the international relations for which the French Republic was responsible, which France finally did when it ratified it.

References 35. To this major limitation ratione loci, the Convention also adds two other limitations. The first (Art. 56(4)) allows a State party, having extended the application of the Convention to a territory for which it has international responsibility, to exclude, in relation to that territory, the possibility for the European Court of Human Rights to accept individual petitions within the meaning of Article 34 of the Convention. It is all the more important to acknowledge that the very existence of this possibility (already made use of by several states concerned, but not by France) hardly appears justifiable after Protocol 11 (11 May 1994) came into force on 1 November 1998, a protocol that generalizes and broadens the right of individuals to refer to the European Court of Human Rights, whereas the absence of such reference considerably reduces the significance of the Convention.

References 36. The second limitation is more unexpected. Ratione loci, it is also a limitation ratione materiae in the sense that the provisions of the Convention shall be applied ‘in such territories, with due regard to local requirements’ (Art. 56(3)). Where the Convention is extended, a kind of adaptation of human rights is thus operated. This genuine adjustment to the concept of human rights overseas is a provision that seems to be relatively valued by the British and Dutch but has not convinced the French. Such a material modification of the local application of the Convention contradicts in all cases the concept of human rights both as a universal value and something universally consistent. From a ‘universalist’ point of view, one could unequivocally condemn the provision of Article 56(3) (and even perhaps Art. 56 as a whole). On the other hand, if one takes the current (albeit not necessarily modern) ‘communitarian’ point of view, Article 56(3) may prove a prescient insight by its drafters in favour of a place for minorities and indigenous peoples inhabiting the last ‘colonies’ of European powers. The adaptation of human rights to ‘local requirements’ could help to consolidate the cohesion of these continually threatened human groups, notwithstanding the rights of their individual members.56

References 37. It is obvious that both political and moral justification of this provision, as well as its practical implementation, can only cause thorny legal problems. It is, for example, this kind of awkward dilemma that seems to characterize one of the few judgments of the European Court (p. 744) of Human Rights in which the Court had to discuss that provision. In its Tyrer judgment,57 the Court actually decided not to take into account the ‘local requirements’ which, according to the British government, had been expected to justify a punishment of flogging imposed on a petty offender by a court on the Isle of Man. The tortuous reasoning of the Court (proof of its discomfort?) makes it impossible to know with any certainty whether the condemnation of the United Kingdom was due to the Isle of Man's location near England's coast (even though it enjoys broad internal autonomy), thus not making it one of the territories for which the clause in Article 56 was originally conceived, or due to the fact that there were no real ‘local requirements’ (the popular feeling in favour of retaining judicial corporal punishment was the only one raised), or even to the fact that the non-derogatory nature of Article 3 of the Convention, which prohibits degrading punishment, overrides all other considerations. It is perhaps the absence of such a non-derogatory right that later justified the Court in its application of the ‘local requirements’ clause in the case of Py v France.58 What was at issue here was the absence of voting rights at local elections for some categories of French citizens living in New Caledonia (those not living there for a significant period of time). For the Strasbourg Court, the ‘local requirement’ here was obviously the concern of preserving peace in New Caledonia by preventing an influx of people from mainland France that would probably alter the demographic balance between rival communities in New Caledonia. As previously stated, communitarianism may well thrive on the ground of the limitation of human rights, with the blessing of the European Convention (and of the Court) on Human Rights.

References 38. The other major European treaty that shows a very clear application of the possibility of

modification of the rule contained in Article 29 of the Vienna Convention on the Law of Treaties is the Treaty of 25 March 1957 establishing the European Community.59 Articles 349 and 355 of the Treaty on the Functioning of the European Community (TFEU) (former Art. 299 of the EC Treaty) deal in great detail with its territorial scope. No fewer than eight categories of territories are dealt with in this provision, categories to which one can add a ninth, that of Article 204 TFEU (former Art. 188 of the EC Treaty), which deals only with Greenland. Moreover, this luxury in adaptation becomes almost ostentatious if we take into account other numerous situations—which leads us rather far afield from the problem of the ‘colonial clause’, given that the case here concerns European metropolitan territories—linked to texts maintaining a sometimes ambiguous relationship with the EC Treaty (and now with the TFEU), which is, however, supposed to take precedence over such texts. One can mention, for example, a declaration of Greece annexed to the Accession Treaty of 19 November 1979 referring to the special status of Mount Athos, Protocol No. 3 annexed to the Accession Treaty of 24 June 1994, relating to ‘traditional Sami areas’, or Council Regulation (EEC) No. 2913/92 of 12 October 199260 establishing the Community Customs Code, which excludes some Italian and German territories from Community customs territory.

References 39. The amendment of former Article 299(2) of the EC Treaty brought about by the Treaty of Amsterdam of 2 October 199761 is also worthy of mention. While the original version of this provision provided for a gradual, yet complete, implementation of the EC Treaty provisions in the French overseas departments, the Amsterdam version of Article 299(2) reverts to a more differentiated form of application of the treaty in these departments, to (p. 745) which the Azores and Madeira (belonging to Portugal) and the Canary Islands (belonging to Spain) have been added. The Council, responsible for the implementation of this modification, was given the responsibility of taking into account ‘the special characteristics and constraints of the[se] outermost regions without undermining the integrity and the coherence of the Community legal order, including the internal market and common policies’. Such specificity of the territorial scope of the EC Treaty is justified by references to the ‘structural social and economic situation’ of these areas, ‘which is compounded by their remoteness, insularity, small size, difficult topography and climate, economic dependence on only a few products, the permanence and combination of which severely restrain their development’. There seems not to be any fundamental change to all this in the actual TFEU. Its Article 349 adds to the list supra two small French islands in the Caribbean Sea, namely Saint-Barthélémy and SaintMartin (of course, the French part of this island). The mentioning of these two islands in the list of Article 349 of the TFEU is justified by the fact that they became autonomous overseas communities (communautés d'outre-mer) in the beginning of 2007 whereas up to that year they formed part of the overseas department of Guadeloupe. Another change is the specification according to which the Council, acting on a proposal from the Commission and after consulting the European Parliament, will take measures of adaptation of the European Union law: in particular areas such as customs and trade policies, fiscal policy, free zones, agriculture and fisheries policies, conditions for supply of raw materials and essential consumer goods, State aids and conditions of access to structural funds and to horizontal Union programmes.

References 40. These major changes with regard to the application of European Union legislation in these regions, which had been called for by the populations concerned (at the very least, called for by their elected officials) for many years, would be sufficient in and of themselves to give a new impetus to what was once called the ‘colonial clause’. It would thus not be an overstatement to speak of a true thirst for modification of the territorial scope of certain European treaties.

D. Sub-national entities and the territorial scope of treaties 41. Over and above recent international activism by sub-national entities, which has also been encouraged by some international organizations62 and which concerns unitary States almost as much as federal States, the application of Article 29 of the 1969 Vienna Convention in the case of federal States raises particular, yet not always clearly identified, problems, given that the so-called ‘federal clause’ may lead to the partial territorial application of certain treaties. The serious complications to which the ‘federal clause’ has given rise are probably responsible for the growing distrust levelled against it.

References

(p. 746) Unclear data relating to the problem 42. International law recognizes only States and as a rule does not recognize sub-national entities. Accordingly, the 1969 Vienna Convention grants treaty-making power solely to States (Arts 2 and 6). Even its Article 3 (‘international agreements not within the scope of the present Convention’), though liberal and permissive, does not authorize a position that would allow sub-national entities the possibility to conclude genuine international treaties. Keeping this in mind, the question of territorial application of treaties in relation to the internal structure of States parties to a treaty could easily have been done away with, insofar as it is presented as a

negative form of treaty-making power: if sub-national entities cannot sign international treaties, neither can they prevent the implementation on their ‘territory’ of treaties signed by the ‘central’ State. 43. However, in order to preserve the constitutional rights of federated entities, some federal States began the practice of imposing on their partners the insertion of what has been called a ‘federal clause’ into international treaties. According to Special Rapporteur Waldock's commentary: the aim of this type of clause is to prevent those provisions of the treaty which concern matters falling within the competence of the individual component states from becoming binding upon the federation until each component state has taken the necessary legislative action to ensure the implementation of those provisions.63 Understood in this way, the ‘federal clause’ carries as a consequence, with regard to the federal State,64 an entry into force of the treaty characterized by a certain progressiveness, insofar as its application to the territory of the federal State becomes dependent on this State's various component entities taking suitable legislative measures. Indirectly, the federal State disappears behind the federated entities while the latter come out of the shadows and become, in practice, actors in international relations since, without their positive action, the treaty will at best bind the federal State only partially. Even their lack of action is likely to give them an importance as far as the federal State's partners are concerned and, ultimately, as far as international law is concerned. 44. Even if one disregards this major distortion of the theory of international law, the practical drawbacks of the ‘federal clause’ are significant. It is already possible to question the sincerity of the commitment of the federal State to be bound, when—and, in any case, as long as—no federate entity has taken the appropriate legislative measures. Moreover, when only some among them have taken the required measures, the problems arising from such a situation will become even more numerous. So one may ask: will the treaty come into force only when all the federated states have taken the necessary measures (one could also ask what a ‘necessary’ measure is in this context and who makes that determination)? Or, on the contrary, could a certain number of ‘legislative approvals’ by federated entities be considered sufficient?65 If the latter assumption proves to be correct, new and almost inextricable problems are likely (p. 747) to then appear in the area of international responsibility (as regards, in particular, the connection of an occurrence giving rise to an international dispute in relation to some other federated entity not having, ex hypothesi, the same ‘status’ with regard to the treaty).

References

Relative dissatisfaction with the ‘federal clause’ 45. Aware of these problems, Herbert Briggs, at the time a member of the Commission, stated that Article 29 of the Convention should not deal with federal clauses since he considered that the matter primarily concerned not international but internal constitutional law.66 Nevertheless, the ‘federal clause’ does internationalize the constitutional difficulties of a federal State. In addition to the fact that contracting States do not understand in what manner they will be confronted with the internal problems of their federal partner, the partner can only be weakened by a situation that reveals its internal operational difficulties to the rest of the world.67 If one adds to this the legal insecurity resulting from such situations,68 one can understand why the federal clause, once relatively common in treaties, has become increasingly rare.69,70 Thus, Sir (p. 748) Gerald Fitzmaurice had already in his 1959 report, incorporated in Article 26 (‘Application to metropolitan territory’) of his draft Convention a paragraph 3 which read: the constituent states, provinces or parts of a federal union or federation, notwithstanding such local autonomy as they may possess under the constitution of the union or federation, are considered to be part of its metropolitan territory for treaty and other international purposes.71

References 46. Thereafter, certain treaties of major importance went so far as to contain truly ‘antifederal’ clauses. For example, despite resistance from several federal States,72 the two United Nations Human Rights Covenants of 16 December 1966 provide that their provisions ‘shall extend to all parts of federal States without any limitations or exceptions’.73 The presence of these clauses in the Covenants is explained by the very nature of the Covenants. However, it is not clear that this is good legal strategy. Taking so obvious a position against the internal constitutional protection of legislative power of federated states (legislative power that very often relates to human rights enshrined in the two Covenants) can easily cause a backlash to the detriment of these instruments insofar as, in several constitutional systems, the representatives of the federated states have input with regard to the ratification of these instruments. Basically a choice must be made: either to opt for a full but perhaps belated application of a treaty in a federal State or (p. 749) instead to choose an implementation that may be partial but occurs more quickly. The choice could vary with time and treaties, but it is certain that Article 29, quite liberal here as elsewhere, does allow such an option.

References

47. Similarly it is not prohibited for a specific treaty to envisage a different definition of the ‘federal clause’ from the commonly accepted one.74 Such is the case, for instance, in the American Convention on Human Rights of 22 November 1969, where Article 28(2) provides that: with respect to the provisions over whose subject matter the constituent units of the federal State have jurisdiction, the national government shall immediately take suitable measures, in accordance with its constitution and its laws, to the end that the competent authorities of the constituent units may adopt appropriate provisions for the fulfillment of this Convention.75 Since this provision seems to imply an obligation for the federal State that becomes party to the Convention (‘shall take’ [‘prendra’ ‘deve tomar’] and even more importantly, ‘immediately’), the Convention departs significantly from the ‘federal clause’ in the way that classical doctrine and Special Rapporteur Waldock had envisaged. It is actually much closer to the ‘anti-federal clause’ contained in the two Covenants of 1966. It thus seems rather difficult to accommodate the subtleties of federalism within treaties for the protection of human rights.76

References 48. It can be added however that, in spite of the wording of Article 28, the American Convention on Human Rights is commonly regarded as containing a more or less traditional ‘federal clause’.77 This interpretation seems to rely on the fact that it was the delegation of the United States that specifically insisted on the inclusion of a ‘federal clause’ in the Convention. For example, this delegation, referring to future Article 28 of the San José Convention, pointed out that on this basis, the local federal State ‘is merely obligated to take suitable measures to the end that state and local authorities may adopt provisions for the fulfillment of this Convention’ and to consider that these ‘suitable measures could consist of recommendations to the states’.78 It is acknowledged that one is here quite far (p. 750) from the provision of Article 28. The entire matter seems to constitute a contradiction between the ‘ordinary meaning to be given to the terms of the treaty’ and the will of the parties such as reflected in the travaux préparatoires of the Convention. However, the 1969 Vienna Convention privileges the ‘ordinary meaning’. And one expert on this problem admits that the drafters of Article 28 were not necessarily aware of the legal difficulties this provision would cause.79

References 49. The Inter-American Court of Human Rights addressed this clause rather belatedly, a surprising fact considering the rather high number of federal States bound by the American Convention. In its judgment of 27 August 1998, in the case Garrido and Baigorria v Argentina (reparations),80 where it was led to discuss Article 28 of the American Convention,81 the Court adopted a position that is subtle, if not totally convincing or satisfactory. For the Court, Article 28 refers to the case where competence in relation to human rights lies with federated states, an assertion which, at first sight, sounds purely descriptive rather than normative in nature but which has the immense merit of not closing the door to possible support by the United States or Canada in the future. However, in the eyes of the Court, Argentina always behaved ‘as if the federal State had jurisdiction over human rights matters’ (‘como si dicha competencia correspondiera al Estado federal ’; No. 46 of the judgment). So the Court had no hesitation in invoking the principle of estoppel. One has no way of knowing with certainty the conduct that prevented Argentina from being able to invoke Article 28 nor, moreover, what a State must do (or, more simply, not do) to benefit from this provision (at least as it is interpreted by a majority of commentators and, obviously—but implicitly—by the Court itself). Thus here a real legal difficulty has met with a real legal enigma.

References 50. And this reality persists. Federal States are definitely not like other States. As noted by an excellent analyst,82 a federal State must constantly battle on two fronts at the international level: (1) against other States participating in the negotiations which are reluctant to appreciate its particular situation; and (2) against the federated entities composing it, which are unwilling to trust it. If the possibility of benefiting from the ‘federal clause’ is not offered, the federal State could be tempted by a ‘territorial clause’, which, drawing a sort of inspiration from the ‘colonial clause’, would be covered all the same by Article 29 of the Vienna Convention. Failing this, a federal State might be tempted to formulate reservations of a territorial nature. However, it is not at all clear that a reservation could really replace a federal or a territorial clause; the need for any reservation—whenever, of course, a treaty does not prohibit them—to be compatible with the object and purpose of the treaty is likely to limit fairly strictly the use of reservations for ‘federalist’ purposes. Indeed, using a reservation to make the application of a treaty depend on the implementation of its provisions by the federated states, over which the federal State would have no constitutional means of applying pressure, appears immediately to be only slightly in compliance with Article 19 of the Vienna Convention on the Law of Treaties. Thus, for example, the attempt of Australia83 to circumvent, by means of a reservation, the ‘anti-federal clause’ of (p. 751) Article 50 of the International Covenant on Civil and Political Rights met with an objection (admittedly a very courteous one) by the Netherlands. More reassured by the Tasmanian Dam case of 1983 than worried by the Dutch reprimand, however, Australia replaced the reservation in 1984 by a ‘declaration’ under the terms of which ‘the implementation of the treaty throughout Australia

will be effected by the Commonwealth, State and Territory authorities having regard to their respective constitutional powers and arrangements concerning their exercise’, given that ‘Australia has a federal constitutional system in which legislative, executive and judicial powers are shared or distributed between the Commonwealth and the constituent States’.84

References

E. Other questions 51. The discussions that took place within the ILC during the first half of the 1960s also focused on certain aspects of the territorial application of treaties, which ultimately did not find any place as such in the Commission's draft or in the text of Article 29 finally adopted by the Codification Conference in 1969. The issues of the extraterritorial application of treaties and of the composition of the territory on which a treaty is to apply will nevertheless be discussed here.

What constitutes territory under Article 29? 52. The question as to what constitutes territory under Article 29 was not actually one that stirred great discussions within the ILC. Without any real debate on the matter, the commentary adopted by the Commission in 1964 merely indicates that the expression ‘the entire territory of each party’ (‘a comprehensive term’, according to the Commission) includes ‘all the land and appurtenant territorial waters and air space which constitute the territory of the State’.85 The 1966 commentary is identical in its wording,86 a fact that points either to the lack of interest the members of the Commission had for the question or to their deeply held conviction that what is obvious does not call for comments, comments which, in a worst case scenario, could actually render the obvious less so. 53. Is it, however, so obvious? To begin with, the term ‘territorial waters’, modified by the adjective ‘appurtenant’, is likely to raise some questions. First, in the context of the time, ‘appurtenance’ and even more so its French counterpart ‘adjacence’87 is one of those expressions that international law loves to use when it is not sure of what solution to propose. It should be recalled that at the time (in 1964 as well as in 1966), there was a raging battle around the question of the actual extent of the territorial sea. Even at the time, one could see the emergence of territorial seas that could extend up to 200 nautical miles from the baseline. The criterion of ‘appurtenance’ put forward by the Commission, (even if timidly) could have constituted, in this context, an additional weapon in the hands of powers (especially western), which militated against excessive expansion of the maritime zones of the coastal States. (p. 752) 54. Moreover, the term ‘territorial waters’ is unknown to conventional international law, including international treaty law to which the Commission itself had contributed. The Geneva Convention of 29 April 1958 on the Territorial Sea and Contiguous Zone, which was adopted on the basis of drafts written by the Commission, recognizes both territorial sea and internal waters; it makes no mention, however, of ‘territorial waters’. It would be possible, however, on the faith of a few bits of discussion within the Commission to consider that ‘territorial waters’ would include both territorial sea and internal waters, two maritime zones deemed to be subject to the sovereignty of the coastal State. Obviously agreeing with Charles Rousseau, Special Rapporteur Waldock quoted him as follows: ‘Spatial application of a treaty and territory under the sovereignty of a State party to it coincide absolutely’.88

References 55. Similarly, intervening later in the debate, the Netherlands mentioned treaties ‘which lend themselves to application on the continental shelf, which is not under the Geneva Convention [of 29 April 1958 on the Continental Shelf], “territory” of the coastal State’.89 It is quite possible, however, that the Dutch intervention on this occasion had confused the scope of treaties and their subject matter.90 In any event, the government of the Netherlands subsequently proposed a redrafting of what would become Article 29 that read as follows: ‘[t]he scope of a treaty extends to the entire territory of each party, and beyond it as far as the jurisdiction of the State extends under international law, unless the contrary appears from the treaty’.91 After receiving this suggestion, the Special Rapporteur then proposed in his Sixth Report a second paragraph to the future Article 29, which read: ‘[a] treaty may apply also in areas outside the territories of any of the parties in relation to matters which are within their competence with respect to those areas if it appears from the treaty that such application is intended’.92 This wording is (p. 753) obviously more restrictive than that of the Netherlands. Despite the fact that it could also rely on a similar proposal by the US government, the Commission did not adopt it.

References 56. Several explanations for this can be proposed. First of all, the Special Rapporteur does not seem to have supported his own proposal with much enthusiasm. Several members of the Commission took a negative stance towards the additional paragraph proposed by Waldock. Thus, formulating the criticism that has probably weighed the most in the Commission's decision not to accept the proposal of the Special Rapporteur, Angel Paredes believed that the phrase ‘areas outside the territories of any of the parties’ was so broad ‘that it could even mean that the treaty could be imposed on countries which had nothing to do with it and which would thus be subjected to a sort of colonization’.93 Fearing once again that it would be accused of colonialist objectives, insufficiently freed from confusion between the territorial

application of a treaty and its subject matter, the Commission did not have too much difficulty in closing off debate. It considered that it could always shelter behind the term ‘unless the contrary appears from the treaty’ with which the draft at that time began.94 According to Senjin Tsuruoka, this clause should be interpreted fairly broadly, in the positive as well as the negative sense, so that it was understood that the treaty—if its object so required or the intention was clear—was applicable outside the territory of the parties.95 57. Despite its interest, it is doubtful that the Commission specifically endorsed this way of thinking. While referring implicitly to the Dutch and US proposals in its 1966 report, the Commission directed the debate instead towards the idea of the extraterritoriality of treaties. Even though its reference to the ability of treaties to govern the high seas (or outer space) is undoubtedly relevant, the Commission remains silent on other aspects of the law of the sea, aspects that it certainly knew to be far more complex.96 Here it is especially important to consider the continental shelf, over which the coastal State has ‘sovereign rights’ for purposes of exploration and exploitation of some of its natural resources,97 as well as to consider the contiguous zone, in which the coastal State has certain rights of police enforcement.98 The general perception regarding these two maritime zones is that they cannot a priori be considered as part of the ‘territory’ of the coastal State insofar as they are not under the coastal State's sovereignty.

References 58. Moreover, nothing can be argued in favour of Tsuruoka's broad conception of Article 29. If the continental shelf and the contiguous zone do not constitute elements of the ‘territory’, it is unclear how the clause ‘unless a different intention appears from the treaty or is otherwise established’99 could ever mean that these maritime zones become part of the said ‘territory’. It will always be difficult to see within a single concept its polar opposite. Furthermore, the desire to overly extend the meaning of this clause, the precise meaning of which, as noted supra, already poses problems, would eventually deprive it of (p. 754) any real significance. However, the provision of Article 29 is only a residual rule of interpretation. Article 29 is not predestined to become some kind of imperative law. States should thus feel free to provide for the implementation of treaty provisions on their respective continental shelves. The difference with the application of treaties to the various portions of their ‘true’ territory is that the application to the continental shelf cannot take advantage of the flexibility permitted under Article 29. Therefore, the extension of the treaty to the continental shelf of the contracting States must be explicit rather than implied.100

References 59. Finally, the examination of the components of ‘territory’ within the meaning of Article 29 would not be complete without a brief evocation of the exclusive economic zone. The exclusive economic zone made its first appearance in the 1982 United Nations Convention on the Law of the Sea, which explicitly enshrined it for the first time. Although reminiscent in some respects of the continental shelf issue, the exclusive economic zone differs from it (as regards the subject of this study) because of its particularly elusive legal nature. While the continental shelf is to be considered essentially as part of the high seas, an assertion that effectively excludes any ‘territorial’ rights on it by the coastal State, the legal nature of the exclusive economic zone remains unspecified. At the time of the Third United Nations Conference on the Law of the Sea, the radical opposition between supporters of a purely ‘economic’ character for the economic zone and supporters of a ‘territorial’ character for the economic zone meant that the 1982 Convention refused to decide between these trends.101 Since it is neither part of the ‘territory’ of the States nor part of the high seas, the exclusive economic zone could not, in any event, be directly concerned with Article 29 of the Vienna Convention.

References

The question of the ‘extraterritorial’ application of treaties 60. If words had exact meaning, then the ‘extraterritorial’ application of treaties would appear to be the complete antithesis of their ‘territorial’ application. Seen in this light, then, the question of the ‘extraterritorial’ application would not logically justify any developments within the framework of a study on Article 29 of the Vienna Convention. Yet it has caused and continues to cause problems that are not easy to solve. First, a precise definition of the concept of ‘extraterritorial’ application is not at all self-evident. The concept would appear, in fact, to cover two realities, albeit related ones, regarding the State party to the treaty. On the one hand, it would suggest the application of a treaty to the territory of States not bound by it. On the other hand, it would also suggest the application of the treaty to areas certainly not belonging to the territory of the States parties, such as the one cited supra, but not belonging either to the territory of other States. (p. 755) 61. The difficulty in dealing with this question arises mainly from the fact that the ILC has never taken the trouble to clarify the idea of the ‘extraterritorial application’ of a treaty, an idea that the majority of its members, however, has always explicitly rejected. It could certainly be argued that it is unnecessary to define what it is not addressed, but this loophole, which has formal logic on its side, finds perhaps in this case, some natural limits. 62. The first assumption mentioned supra is, prima facie, the issue of a treaty inter alios actus

and one can here essentially refer the reader to developments relating to the question previously discussed in this commentary. Yet we should indicate that the res inter alios acta issue has never been a serious issue—or cause for concern—for the Commission in its overall consideration of Article 29. 63. It remains, however, that it is possible for a treaty to be extended to the territory of another State, ‘which is not itself a contracting party’, with the assent of that State. The Third Report of Sir Humphrey Waldock expressly considered the possibility of such an ‘extension’, which can be regarded as a form of ‘extraterritoriality’.102 However, the Commission did not adopt this proposal from its Special Rapporteur. It was felt (logically) that the problematic issue here concerned the res inter alios acta issue, or rather the flexibility introduced into this rule, which one finds today in Articles 35 and 36 of the Convention. 64. On the other hand, the second form of ‘extraterritoriality’, that is the application of the treaty to areas not placed by international law under the sovereignty of any State (party or not to the treaty in question) remains relevant. Under this heading (and under the conditions seen supra) one could list several maritime zones and, in first place, the continental shelf, the exclusive economic zone, the high seas or Antarctica, at least for the so-called non-claimant States. Admittedly, several international treaties would apply in such spaces, but it is difficult to argue that this would be the result of the application of Article 29 of the Vienna Convention. To take one of the most striking examples, that of ships flying the flag of a contracting State, if the treaty binding the latter applies even to those ships sailing on the high seas, this is so certainly not on the basis of any theory of ‘floating territory’103 (which intellectually could still refer, although with some difficulty, to Art. 29), but rather on the basis of international custom, which pursues both a healthy and necessary goal, namely, according to the famous expression of Gilbert Gidel,104 to ensure the ‘rule of law’ (juridicité) in the sea (and especially on the high seas). This customary norm was, in its substance, codified by the United Nations Convention on the Law of the Sea. 65. Finally it is important to note that some treaties, primarily those relating to the protection of human rights, are characterized by a tendency to go beyond territorial application stricto sensu. They would apply not only to the territory included within the sovereignty of the contracting party, in short on that party's own territory, but also to the territory on which it extends its ‘jurisdiction’. The most famous such example is certainly Article 1 of the European Convention on Human Rights under which ‘the High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention’.105

References (p. 756) 66. The favouring of the concept of ‘jurisdiction’ over the more classical concept of ‘territoriality’ has extremely important and interesting consequences. Thus, without being exhaustive on the matter, it may be noted that maritime areas not under the sovereignty of a State party to a treaty may nonetheless, under certain conditions, fall within the scope of a treaty that has retained ‘jurisdiction’ as an applicable criterion. For example, the former European Commission on Human Rights held that a trilateral treaty on the protection of a shipwreck located outside the territorial sea of the respondent State could be deemed to be placed under the ‘jurisdiction’ thereof.106 Conversely, other maritime areas, even though subject to the sovereignty of a State party to a treaty, could not fall under a treaty based on the ‘jurisdiction’ criterion rather than on the ‘territoriality’ one. For example, a State party to a treaty could not be liable because it failed to apply that treaty's provisions to a foreign ship passing through its territorial sea in innocent passage, first, because it should not, under normal circumstances, exercise its criminal or civil jurisdiction on board such a ship107 and, secondly, because the right of innocent passage should be seen as an inherent condition of the sovereignty of the coastal State over its territorial sea. It may also be noted that the failure of a State party to a treaty to exercise an effective control over a portion of its territory will result in the non-applicability of the treaty to this part of the territory, except of course if the State that actually exercises control over this area is itself a party to the treaty.108

References (p. 757) 67. It is clear, however, that placing too much weight on the concept of ‘jurisdiction’ risks marginalizing the concept of ‘territoriality’, since the concept of ‘jurisdiction’ is often very appealing. Ultimately the question of the true significance of Article 29 of the Vienna Convention would arise, as well as its capacity to reflect both treaty practice and international custom. In addition, the commitments of States would increase to an extent difficult to sustain. States have thus tended to favour ‘territoriality’, a concept that seems much safer to them. Nothing is more disturbing than activities that are outside their territorial control but still likely to engage their responsibility: such is the case, for example, of many activities relating to the Internet. As Professor Prosper Weil stated: ‘one of the major concerns has been for international law (and still is) the creation of principles and rules capable of preserving the territorial base of the States’.109 68. In this regard, it is interesting to note a recent refocusing of the European Court of Human Rights in the interpretation of the concept of ‘jurisdiction’, which largely determines obligations assumed by States under the European Convention on Human Rights. In its decision on an application involving 17 States all parties to the Convention and NATO members and regarding the aerial bombing of the city of Belgrade in the spring of 1999, the Court held that: Article 1 of the Convention must be considered to reflect this ordinary and essentially

territorial notion of jurisdiction, other bases of jurisdiction being exceptional and requiring special justification in the particular circumstances of each case.110

References 69. Be that as it may, the ILC (and, it should be remembered, without providing any clear understanding of what it meant by ‘extraterritorial application’) came to the following conclusion on this question in its commentary on the future Article 29 in its 1966 draft: [This] Article was intended by the Commission to deal only with the limited topic of the application of a treaty to the territory of the respective parties;…the preferable solution was to modify the title and the text of the Article so as to make precise the limited nature of the rule. In its view, the law regarding the extra-territorial application of treaties could not be stated simply in terms of the intention of the parties or of a presumption as to their intention; and it considered that to attempt to deal with all the delicate problems of extra-territorial competence in the present Article would be inappropriate and inadvisable.111 70. This point was also raised during the Commission's debates as to whether the territorial scope of a treaty might be affected by questions of State succession. However, the Commission admitted quite frankly that it ‘decided not to deal with this question’ under the provision of Article 29.112 It decided instead to reserve this question for a ‘general (p. 758) provision’ which finally became Article 73 of the 1969 Vienna Convention. Moreover, another Vienna Convention, also based on an ILC draft, was adopted on 22 August 1978. It aims at clarifying several rather complex questions regarding a treaty's status after a State succession.113 *

SYMÉON KARAGIANNIS

Footnotes: 1 YILC, 1966, vol. II, p 65. 2 As far as the territorial scope of treaties was concerned, Sir Gerald seems to have been quite anxious about the application of treaties in what was called the ‘dependent territories’ (YILC, 1959, vol. II, p 76), many of which still existed at the time. 3 Convention on Wetlands of International Importance especially as Waterfowl Habitat, Ramsar (Iran), 2 February 1971, 996 UNTS 245. 4 3 October 1985, 1496 UNTS 147; CETS No. 121. 5 9 December 1923, 58 LNTS 285. 6 YILC, 1964, vol. II, p 179. See for a similar way of thinking Roberto Ago (YILC, 1964, vol. 1, p 55, para. 61) or yet another member of the Commission, Milan Bartoš (ibid, p 5, para. 65). Sir Ian Sinclair (The Vienna Convention on the Law of Treaties (2nd edn, Manchester: Manchester University Press, 1984), p 87) is quite near to it as well as are Anthony Aust (Modern Treaty Law and Practice (2nd edn, Cambridge: Cambridge University Press, 2007), pp 202–3) and P. K. Menon (The Law of Treaties between States and International Organizations (Lewiston: The Edwin Mellon Press, 1992), p 64). See, on the contrary, for a conception similar to that put forward in this contribution, C. Ioannou, C. Economides, C. Rozakis, and A. Fatouros, Public International Law (in Greek) (Athens: Sakkoulas, 1983), Book I, vol. 2, p 148. 7 YILC, 1966, vol. II, p 213. 8 21 October 1920, 2 LNTS 8. 9 1 December 1959, 402 UNTS 71. 10 18 December 1979, 1363 UNTS 3. 11 YILC, 1964, vol. II, p 12. 12 YILC, 1964, vol. I, p 46, para. 2. G. Tunkin takes a similar view (YILC, 1964, vol. I, p 49, para. 32). 13 YILC, 1959, vol. II, pp 47–8. 14 YILC, 1964, vol. II, p 12. 15 YILC, 1964, vol. II, p 179. 16 eg see A. McNair, The Law of Treaties (Oxford: Clarendon Press, 1961), pp 116–17. Many other international law handbooks published after the Vienna Conference confirm the validity and the customary character of Art. 29. 17 YILC, 1966, vol. II, p 65. 18 Id. 19 Id. 20 Paul Reuter, ILC Special Rapporteur on the law of treaties concluded between States and international organizations or between international organizations, observes with perspicacity that ‘the authors of that provision had simply wanted to enunciate a rule for the interpretation of treaties’ (YILC, 1977, vol. I, p 117, para. 24). 21 In French case law, the commissaire du gouvernement of the Conseil d'Etat stated in a case concerning the application of a French-Australian extradition treaty to New Caledonia that ‘le cocontractant de la France est en droit de penser que, dans le silence de la convention, celle-ci régit, au nom de l’ “effet utile” des traités, tous les territoires unis par les Articles 2 et

72 de la Constitution en une République indivisible' (Mme Smets, 14 May 1993, RGDIP, 1993, p 1056). 22 YILC, 1964, vol. II, p 12, para. 2. 23 Ibid, p 13, para. 4. 24 Should this be a cumulative condition? Nothing is clear on this particular point, which contributes to a certain confusion in the Waldock draft. 25 YILC, 1964, vol. II, p 12. 26 Ibid, p 179. 27 Ibid, p 179, para. 2 (emphasis added). The French version of the commentary states: ‘disposition ou indication précise’. 28 YILC, 1966, vol. II, p 213, para. 2. 29 This is true of the English, French, and Russian versions of Art. 29 but, quite strangely, not of the Spanish version, which keeps on placing the rule before the exception. 30 See on this point P. Reuter, ‘Quelques réflexions sur le vocabulaire du droit international’, Mélanges Louis Trotabas (Paris: LGDJ, 1970), pp 423–45. 31 See commentaries in YILC, 1964, vol. II, p 179, para. 2 and YILC, 1966, vol. II, p 213, para. 2 (emphasis added). More generally, the International Court of Justice insists on ‘the primary necessity of interpreting an instrument in accordance with the intentions of the parties at the time of its conclusion’ (Legal Consequences for States of the Continued Presence of South Africa in Namibia, Advisory Opinion, 21 June 1971, ICJ Reports 1971, p 16, para. 53). 32 Fitzmaurice, in particular, attached a great importance to the constitutional specificities of States with regard to the territorial application of the treaties that bound them (YILC, 1959, vol. II, p 48). The European Court of Justice has also stated that ‘the status of the French overseas departments within the Community is primarily defined by reference to the French Constitution’ (Judgment of 10 October 1978, Hansen/Hauptzollamt Flensburg, ECR 1978, p 1787, para. 10). 33 Shabtai Rosenne further stated that ‘he would have no objection to the concept of a reservation being broadened so as to cover that type of quasi-reservation, but the wording of the definition [of a reservation] would have to be adjusted’ (YILC, 1964, vol. I, p 48, para. 26). See for an opposite point of view Sinclair, supra n 6, p 91. 34 Report of the ILC, 59th session, 2007, p 47. 35 YILC, 1998, vol. II, p 93, para. 498. At the same time the Special Rapporteur recalled that a reservation could also be made at the time of the notification of the extension of the application of a treaty to a territory, an action which in itself did not, of course, constitute a reservation. Obviously endorsing the Special Rapporteur's viewpoint Yves Daudet explains that ‘une extension de l'application territoriale ne saurait constituer une réserve, à l'inverse de la déclaration excluant une partie du territoire (comme la “clause coloniale” qui en est incontestablement une)’ (‘Travaux de la Commission du droit international’, AFDI, 1998, pp 494–511, esp. p 509). This logic could nevertheless prove rather odd insofar as a ‘nonextension’ is, in fact, an ‘exclusion’ or, in other words, a ‘non-exclusion’ tacitly constitutes an extension. Reservations would thus merge constantly with non-reservations. 36 Some commentators seem to think that the Commission in its current composition is working to reconstruct the 1969 Vienna Convention principle on the territorial scope of treaties. See Carlo Santulli, ‘Travaux de la Commission du droit international’, AFDI, 2000, pp 403–31, esp. p 415. 37 BYBIL, 1999, pp 411–14. Quite critical also is A. Aust, supra n 6, p 206. 38 Namely, Australia (Official Records, 1st session, 1968, p 176, para. 53). 39 Jiménez de Aréchaga stated on this point in 1964 that: any party wishing to restrict the territorial application of a treaty was bound to insert a proviso to that effect or to bear the onus of proving the existence of such an intention at the time when the treaty was drawn up. If that onus was to be placed on the State concerned, it was necessary to be liberal as to ways and means of proving the intention. (YILC, 1964, vol. I, p 52, para. 69) 40 In general, in such cases, a period of time is allotted to the State concerned, often for the purpose of consultations with the local population in question. See the example of former Art. 227(5)(a) of the Treaty establishing the European Economic Community, which allowed the Danish government, until 31 December 1975, to extend the application of this Treaty to the Faroe Islands—an extension which never took place. Equally interesting are the many bilateral agreements entered into by the Federal Republic of Germany (before reunification) with regard to West Berlin. According to the practice followed in that context, any such bilateral agreements also applied to West Berlin unless there was an intervening statement by the German government within three months following the entry into force of the agreement. See, among many examples, Art. 7 of the financial assistance agreement signed with Senegal on 28 December 1973 (983 UNTS 43). 41 This State could very well be a State to which the territory in question does not belong. Indeed, the spatial application of a treaty is a question that interests all the contracting parties. At the very least, they all have the right to know the spatial extent of their treaty commitments. 42 See, inter alios, J. E. S. Fawcett, ‘Treaty Relations of British Overseas Territories’, BYBIL, 1949, pp 86–107; P. Lampué, ‘L'application des traités dans les territoires et départements

d'outre-mer’, AFDI, 1960, pp 907–24. 43 The ambiguity of the ‘colonial clause’ is actually already clear in the conjunction ‘or’ indicating the alternative. In fact, there exist several forms of ‘colonial clauses’. See, for a brief overview, Yuen-Li Liang, ‘Colonial Clauses and Federal Clauses in Multilateral United Nations Instruments’, AJIL, 1951, pp 108–28 or S. Rosenne, ‘United Nations Treaty Practice’, RCADI, 1954-II, vol. 86, pp 275–444, esp. pp 377–8. 44 YILC, 1959, vol. II, p 48. A ‘dependent’ territory would be for him any ‘not-metropolitan’ territory, the ‘metropolitan’ one being defined as one ‘administered directly by [the State's] central government under the basic constitution of the State, in such a manner that this government is not subject, either in the domestic or in the international field, to any other or ulterior authority’ (ibid, Arts 26 and 27 of his draft). This effort of clarification may be criticized for taking as an absolute model what Sir Gerald knew best, namely the selfgovernment of British colonies and other dependent territories. However, such a model had little to do with what, eg, France had experienced under the Third and Fourth Republics. It should be noted as well that, as expected, not all the ‘dependent’ territories were placed under the same rubric by Fitzmaurice; instead several categories were distinguished among them. The whole gave an appalling complexity to the system and a certain sense of an unsuccessful attempt to catalogue heterogeneous situations. 45 eg Art. 56, para. 1 (former Art. 63, para. 1) of the European Convention on Human Rights provides that any State may at the time of its ratification or at any time thereafter declare by notification addressed to the Secretary General of the Council of Europe that the present Convention shall, subject to paragraph 4 of this Article, extend to all or any of the territories for whose international relations it is responsible. 46 Other international organizations use similar expressions. For instance, the United Nations Convention on the Prevention and Punishment of the Crime of Genocide (78 UNTS 277) refers to ‘territories for the conduct of whose foreign relations that Contracting Party is responsible’ (Art. 12). 47 YILC, 1964, vol. II, p 12 (‘territories for which the parties are internationally responsible’). 48 Some interventions have been quite outspoken. Thus, for Czechoslovakia, the colonial clause formulation ‘was contrary to the requirements for the speedy liquidation of colonialism’ (YILC, 1966, vol. II, p 64). G. Tunkin asked whether it was ‘appropriate for the Commission to act as if the world had stood still and give its approval to colonial institutions’ (YILC, 1964, vol. I, p 49, para. 35). Several other members of the Commission intervened in a supportive sense. The debate continued later without anything new being added within the Sixth Committee of the General Assembly. 49 Article 25 of the Commission's last report was thus drafted: ‘Unless a different intention appears from the treaty or is otherwise established, the application of a treaty extends to the entire territory of each party’ (YILC, 1966, vol. II, p 213). 50 Ibid, commentary, para. 3. 51 Ibid. 52 Signed on 4 November 1950 (213 UNTS 221). 53 Extended to Greenland on 13 April 1953. 54 Extended on 23 October 1953 to 42 territories in Africa, Asia, America, and Europe (Channel Islands, Isle of Man, Gibraltar, Malta, and Cyprus). Some other overseas territories were added later. It is to be noted that Hong Kong had never been added, before its retrocession to China, to the Art. 56 list. See Ch. Lush, ‘The Territorial Application of the European Convention on Human Rights: Recent Case Law’, ICLQ, 1993, pp 897–908. 55 The territories concerned were Surinam and the Antilles (extension on 1 December 1955). Belgium did this at the same time for its colonies in Africa. 56 S. Karagiannis, ‘L'aménagement des droits de l'homme outre-mer: la clause des “nécessités locales” de la Convention européenne’, RBDI, 1995, pp 224–305, esp. pp 274 ff. 57 Tyrer v United Kingdom, 25 April 1978, Series A, no. 26. 58 Judgment of 11 January 2005 (Reports, 2005, vol. I). 59 294 UNTS 17. 60 OJ L 302 of 19 October 1992. 61 OJ C 340 of 10 November 1997. 62 See, as regards the Council of Europe, the European Framework Convention on Transfrontier Co-operation between Territorial Communities or Authorities signed in Madrid on 21 May 1980 (1272 UNTS 61; CETS No. 106, vol. IV, p 226) completed by the Strasbourg Additional Protocol signed on 9 November 1995 (CETS No. 159). One can still find in the 1966 ILC's draft of the Convention on the Law of Treaties a possibility for federated states to be given a kind of treaty making power (see Art. 5, para. 2 of this draft in YILC, 1966, vol. II, p 191, which reads: ‘States members of a federal union may possess a capacity to conclude treaties if such capacity is admitted by the federal constitution and within the limits there laid down’) but the codification Conference decided otherwise. The literature on the role of subnational entities in international law, once rather poor, is becoming extremely important. See eg the numerous contributions to the workshop held by the SFDI, Les collectivités territoriales non-étatiques dans le système juridique international (Paris: Pedone, 2002). 63 YILC, 1964, vol. II, p 14, para. 5.

64 This progressiveness could be seen either as a reference to a material entry into force (ie making internal legislation conform to the objectives of the treaty) or to a formal—and more traditional—one. In both cases, the treaty would apply only to the territory of the federated States having taken the ‘necessary legislative action’. Needless to say that, on this assumption, the federal clause, by cutting up the territory of the federal State, produces practical effects similar to those of the colonial clause. 65 Waldock answers this question in the negative (YILC, 1964, vol. II, p 14, para. 5). To maintain this negative stance, however, amounts to virtually excluding a federal State from ever becoming party to a treaty on the basis of the ‘federal clause’ when the number of the federated States composing it is particularly high. Although any parallelism with international organizations is, by nature, a rather bold position, one cannot refrain from mentioning, in this respect, the precedent of the United Nations Convention on the Law of the Sea (UNCLOS) of 10 December 1982 (1833 UNTS 397), which, in its Annex IX (Art. 3, para. 1), specifies that an international organization has the power to become party to this Convention under the condition, inter alia, that a majority of its member States have already become party to it. This provision was designed almost exclusively for the benefit of the European Community (currently, the European Union), which is the international organization that currently most resembles a federal model. 66 YILC, 1966, vol. II, Part Two, p 51, para. 28. 67 Difficulties that add to a certain ‘international’ fragility, which would be inherent to the federal State, according to the Badinter Commission in its opinion no. 1 of 2 November 1991 (2), b); RGDIP, 1992, p 265. According to Frédérique Coulée, federalism would in itself constitute ‘un défaut structurel rendant difficile tout engagement international de l'Etat fédéral‘ (‘Collectivités territoriales non étatiques et champ d'application des traités internationaux’ in SFDI, Les collectivités territoriales non-étatiques dans le système juridique international (Paris: Pedone, 2002), pp 95–124, esp. p 118). 68 F. Coulée, ibid, p 119 and R. L. Looper, ‘“Federal State” Clauses in Multilateral Instruments’, BYBIL, 1955–56, pp 162–203, esp. p 164. 69 The principal example of a treaty containing a ‘federal clause’ remains the Constitution of the International Labour Organization (15 UNTS 41). Its Art. 19, para. 7(b) is about ‘Conventions and Recommendations which the federal government regards as appropriate under its constitutional system, in whole or in part, for action by the constituent states, provinces, or cantons rather than for federal action’. Hence the great theoretical importance of this clause since through the Constitution of the International Labour Organization (ILO) all international labour conventions can be at issue. The question greatly interested academic writers in the past. See, among many others, M. O. Hudson, ‘The Membership of the United States in the International Labour Organisation’, International Conciliation, 1935, pp 122–30; R. Stewart, ‘Canada and International Law Conventions’, AJIL, 1938, pp 36–62; K. H. Bailey, ‘Australia and International Labour Conventions’, International Labour Review, 1946, pp 329– 56; J. Secretan, ‘Swiss Constitutional Problems and the International Labour Organisation’, International Labour Review, 1947, pp 1–20. It is to be noted that some international labour conventions adapt themselves specifically to the requirements of the federal system of some States. See on this point, J. F. MacMahon, ‘The Legislative Techniques of the International Labour Organisation’, BYBIL, 1965–66, pp 1–109, esp. pp 58–9. It is also interesting to note that the ILO Constitution allows a ‘colonial clause’. Article 35, para. 1 permits the nonextension of a labour convention to the ‘non-metropolitan territories for whose international relations [States parties] are responsible’ so long as ‘the subject-matter of the Convention is within the self-governing powers of the territory or the Convention is inapplicable owing to the local conditions or subject to such modifications as may be necessary to adapt the Convention to local conditions’. Yet, and this is not usual (see Aust, supra n 6, pp 202–4), a State not extending a labour convention to a non-metropolitan territory is asked to explain the reasons for this non-extension. In a certain way, then, the ‘colonial clause’ begins to resemble a ‘federal clause’. However, is there really a great difference between these two territorial clauses? 70 Without doubt, the development of domestic jurisprudence in the federal States, especially in constitutional matters, is there for a reason. Thus the US Supreme Court, in its ruling Missouri v Holland (252 US 416) in 1920, cleared the situation by allowing the federal State to conclude treaties that became binding on federated states even if they related to fields within the jurisdiction of the latter. The situation has been similar in Australia after a case was brought before the High Court of Australia in 1983 (The Commonwealth v Tasmania [Tasmanian Dam], 158 CLR 1). Nguyen Quoc Dinh, P. Daillet, M. Forteau, and A. Pellet (Droit international public (8th edn, Paris: LGDJ, 2009), p 243, fn 141) explain the rarefaction of the ‘federal clause’ by the rise to power of the federal State that succeeds a first phase that is often observed and that is characterized by a relatively loose federal bond. History would thus push for centralization and international law would complete its triumph. However, the situation remains different from one federation to another and we should indicate that the United States and Australia count among the federal States that are relatively ‘centralized’ with regard to the treatment of international relations. In contrast, the solution to this problem is quite different in Germany. Rather classically, according to § 32 para. 1 of the German Basic Law of 1949, ‘relations with foreign States shall be conducted by the Federation’ but at the same time § 30 provides that, ‘except as otherwise provided or permitted by this Basic Law, the exercise of State powers and the discharge of State functions is a matter for the Länder’. The ingredients of an open conflict between Federation and Länder are readily available although § 32 para. 2 seems eager to propose a solution: ‘Before the conclusion of a treaty affecting the special circumstances of a Land, that Land shall be consulted in timely fashion’ (official English translation available at: http://www.btg-bestellservice.de/pdf/80201000.pdf).

Yet, ‘consulting’ cannot be deemed sufficient insofar as, ultimately, only the Länder can implement an international treaty ex hypothesi interfering with their legislative competence. The solution seems to reside rather in what has been called the Lindau Agreement concluded in 1957 between the Federation and the Länder. Sometimes considered a gentlemen's agreement, the Lindau Agreement provides that in the case of treaties affecting the Länder, the Länder must give their consent (and not merely their opinion) before the Federation can validly enter into a treaty. 71 YILC, 1959, vol. II, p 47. However, Sir Gerald conceded, in his commentary on this provision, that the words by which the first paragraph of Art. 26 of his draft began (‘Unless a treaty otherwise provides…’) ‘in no way prevent[ed] the insertion of the so-called “federal clause” in treaties, where there is agreement to do this’ (ibid, p 75, para. 130). 72 A proposal submitted to the United Nations Commission on Human Rights by Yugoslavia, a federal State, shows an unmistakable interest in this respect. Under the terms of this proposal, a federal State could not ratify the International Covenant on Civil and Political Rights unless ‘it has previously ensured the application thereof throughout its territory’ (M. J. Bossuyt, Guide to the Travaux Préparatoires of the International Covenant on Civil and Political Rights (Dordrecht: Martinus Nijhoff, 1987), p 763). There was no vote on this proposal. 73 Article 28 of the International Covenant on Economic, Social and Cultural Rights (993 UNTS 3) and Art. 50 of the International Covenant on Civil and Political Rights (999 UNTS 171). However, the Human Rights Committee insists, quite naturally, on the fact that the periodic reports of States parties to the Covenant on Civil and Political Rights contain specific information on compliance of federated State law with provisions of the Covenant. 74 Moreover, it is possible that a milder form of ‘federal clause’ would not completely clear the federal State of the application of the treaty on its territory. Thus, eg Art. 34(b) of the UNESCO Convention concerning the protection of world cultural and natural heritage of 23 November 1972 (1037 UNTS 151) requires the federal government, with regard to the provisions of the Convention: the implementation of which comes under the legal jurisdiction of individual constituent states, countries, provinces or cantons that are not obliged by the constitutional system of the federation to take legislative measures [to] inform the competent authorities of such states, countries, provinces or cantons of the said provisions, with its recommendation for their adoption. A more classical obligation of result seems thus to be replaced here by an obligation of conduct insofar as it is assumed (insofar as it is hoped, to tell the truth) that the friendly pressure of the federal government will encourage the federated authorities to take all suitable measures. 75 1144 UNTS 123. 76 See for a more ancient study M. Sørensen, ‘Federal States and the International Protection of Human Rights’, AJIL, 1952, pp 195–218. 77 See, inter alios, H. Gros Espiell, ‘La Convention américaine et la Convention européenne des droits de l'homme. Analyse comparative’, RCADI, 1989-VI, vol. 218, pp 166–411, esp. pp 383–7; H. Faúndez Ledesma, El sistema interamericano de protección de los derechos humanos. Aspectos institucionales y procesales (San José: Instituto interamericano de derechos humanos, 1996), pp 61–2; and, quite critically, S. Davidson, The Inter-American Human Rights System (Aldershot: Dartmouth, 1998), pp 42–3. 78 As cited in Th. Buergenthal, ‘The Inter-American System for the Protection of Human Rights’ in Th. Meron (ed.), Human Rights in International Law: Legal and Policy Issues (Oxford: Clarendon Press, 1984), pp 439–93, esp. p 446. 79 Ibid, p 447. 80 Inter-American Yearbook on Human Rights, vol. 4, p 3473. 81 It is true that, in earlier phases of this case, Argentina showed great reluctance to rely on Art. 28 of the Convention (see para. 45 of the judgment of 27 August 1998) before recognizing its own responsibility in this case relating to the disappearance of two persons held by the police force of the province of Mendoza. 82 B. R. Opeskin, ‘Federal States in the International Legal Order’, NILR, 1995, pp 353–86, esp. p 361. 83 1197 UNTS 414. See on this issue G. Triggs, ‘Australia's Ratification on the International Covenant on Civil and Political Rights: Endorsement or Repudiation?’, ICLQ, 1982, pp 278– 306. 84 At: http://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV4&chapter=4&lang= en#EndDec. 85 YILC, 1964, vol. II, p 179, para. 3. 86 YILC, 1966, vol. II, p 213, para. 3. 87 One should note that even if used almost as synonyms in the ILC commentaries, the two words (‘appurtenance’ and ‘adjacence’) are not the same. 88 ‘Il y a coïncidence exacte entre la sphère d'application spatiale du traité et l'étendue territoriale soumise à la souveraineté étatique’ in YILC, 1964, vol. II, p 13, para. 3. In his circulaire of 30 May 1997 relating to the development and conclusion of international agreements by France (JORF, 31 May 1997, p 8415), the French Prime Minister considers that the territorial sea, because it is implicitly covered by the various territorial clauses that can be inserted into a treaty, ‘does not have thus to be expressly stated’ (Art. III, 2). Nothing of

course prevents a treaty from expressly referring to maritime zones. Thus, eg, Art. 2 of the Chicago Convention of 7 December 1944 on International Civil Aviation (15 UNTS 295) indicates that ‘for the purposes of this Convention, the territory of a State shall be deemed to be the land areas and territorial waters adjacent thereto under the sovereignty, suzerainty, protection or mandate of such State’. 89 YILC, 1966, vol. II, p 64. 90 Theory concerning the subject matter of a treaty is naturally not to be neglected. Also, a large number of treaties deploy some of their concrete effects outside the territory of the contracting State. Mention may for instance be made of the treaties relating to Antarctica and outer space and treaties on the law of war and humanitarian law, given that many military operations inevitably take place outside the territory of a contracting State (eg on the open sea or in an occupied territory). Apart from such specific constraints, it is, on the other hand, difficult to support the position that a treaty applies to territories escaping the State's sovereignty (cf R. Jennings and A. Watts, Oppenheim's International Law (9th edn, Harlow: Longman, 1992), pp 1250–1, fn 621), such as, eg, lease territories, or military bases abroad (unless, of course, the aforementioned bases are explicitly subject to the sovereignty of the State that occupies them, such as the British ‘sovereign base areas’ in Cyprus; see, however, in this respect, Art. 355(5)(b) TFEU). Thus, according to several authors, no legal international provision, to start with that of Art. 29 of the Vienna Convention 1969, would oblige a State party to seek and arrest the authors of violations of international humanitarian law conventions outside their own territory (cf P. Gaeta, ‘Is NATO Authorized or Obliged to Arrest Persons Indicted by the International Criminal Tribunal for the Former Yugoslavia?’, EJIL, 1998, pp 174–81, esp. p 179; S. Lamb, ‘The Power of Arrest of the International Criminal Tribunal for the Former Yugoslavia’, BYBIL, 1999, pp 165–244, esp. p 221, fn 191). 91 YILC, 1966, vol. II, p 66. 92 Ibid. 93 YILC, 1966, vol. I, Part Two, p 47, para. 91. 94 ‘Unless a different intention appears from the treaty or is otherwise established’, in the actual version. 95 YILC, 1966, vol. I, Part Two, p 49, para. 15. 96 YILC, 1966, vol. II, pp 213–14, para. 5. 97 Article 77, para. 1 UNCLOS (1833 UNTS 397) or Art. 2, para. 1 of the 1958 Geneva Convention on the Continental Shelf (499 UNTS 311). 98 Article 33, para. 1 UNCLOS or Art. 24, para. 1 of the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone (516 UNTS 205). 99 At that time: ‘Unless the contrary appears from the treaty’. 100 Besides, of course, treaties specifically referring to the continental shelf such as the Geneva Convention 1958 mentioned supra, can also be given as an implicit example of the will of States. Council Regulation No. 2913/92 of 12 October 1992 establishing the Community Customs Code where under the terms of Art. 23, para. 1(h) ‘products taken from the seabed or subsoil beneath the seabed outside the territorial sea provided that that country has exclusive rights to exploit that seabed or subsoil’ are to be considered ‘goods originating in a country’ (OJ L 302, 19 October 1992, p 1). See for details M. Michael, L'applicabilité du traité instituant la CEE et du droit dérivé au plateau continental des Etats membres (Paris: LGDJ, 1984). 101 See on this question Arts 55–9 UNCLOS. See for details S. Karagiannis, ‘L'Article 59 de la Convention des Nations Unies sur le droit de la mer (ou les mystères de la nature juridique de la zone économique exclusive)’, RBDI, 2004, pp 325–418. 102 YILC, 1964, vol. II, p 15. 103 See on this point L. Lucchini and M. Vœlckel, Droit de la mer, vol. I (Paris: Pedone, 1990), p 148, fn 173. 104 Le droit international public de la mer, 1934, vol. 1, p 225. 105 It is characteristic in this respect that the international Covenant relating to civil and political rights of 16 December 1966, although favouring, textually, a ‘territorialist’ approach as regards its own application (Art. 2, para. 1: ‘Each State party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant’), ended up being interpreted by the Human Rights Committee in a way similar to that of the European Convention on Human Rights (see on the question M. Nowak, United Nations Covenant on Civil and Political Rights (Kehl, Strasbourg, Arlington: Engel Verlag, 1993), pp 42–3). It is also characteristic that the second optional Protocol to the Covenant aiming at the abolition of the death penalty, adopted on 15 December 1989, states that ‘no one within the jurisdiction of a State party to the present Protocol shall be executed’ (Art. 1, para. 1; 1642 UNTS 414), without any other qualification of a ‘territorialist’ type. Let us note finally that in its Advisory Opinion of 9 July 2004 on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the International Court of Justice concluded that the Covenant on Civil and Political Rights is applicable to the acts of a State acting in the exercise of its jurisdiction outside its own territory (p 180, para. 111). 106 Bendréus et al v Sweden, decision of the European Commission on Human Rights of 8 September 1997 (not reported). See also for a similar approach by the Commission its decision in Berglund et al v Sweden of 16 April 1998 (not reported). 107 See Arts 27 (criminal jurisdiction) and 28 (civil jurisdiction) UNCLOS, two provisions that reproduce Arts 19 and 20 of the 1958 Geneva Convention on the Territorial Sea and the

Contiguous Zone. 108 This assumption has often been seen in the context of the implementation of the European Convention on Human Rights. Thus, according to a European Commission on Human Rights decision of 18 January 1989 (George Vearncombe et al v United Kingdom and Federal Republic of Germany) in a case relating to the occupation of Berlin (West), ‘acts performed by organs of an occupying State (including members of its army) are generally attributable to this State and not to the occupied State’ (DR 59, p 186). The assumption in question has found its clearest expression in many cases concerning the Turkish army's occupation of northern Cyprus (see esp. the judgments of the European Court of Human Rights: Loizidou v Turkey, 23 March 1995, Series A, no. 310 and Cyprus v Turkey, 10 May 2001, Reports, 2001-IV). Another example, albeit slightly more controversial, is the Ilaşcu et al v Moldova and Russia case (judgment of 8 July 2004, Reports, 2004-VII, p 1) relating to the involvement of Russian troops in the secessionist republic of Transnistria. One may also note the decision of 12 March 2002 of the Inter-American Commission on Human Rights in the case of Guantanamo detainees (ILM, 2002, p 532). The Commission considered that the measures requested in this petition were justified and necessary having regard, inter alia, to the fact that the detainees at Guantanamo ‘remain wholly within the authority and control of the United States government’ despite the fact that the military base at Guantanamo is not strictly speaking US territory but is the subject of a long-term lease from Washington. 109 ‘L'une des préoccupations majeures du droit international a été, et reste, de forger des principes et règles susceptibles de préserver l'assise territoriale des Etats’ in ‘Le droit international en quête de son identité. Cours général de droit international public’, RCADI, 1992-VI, vol. 237, pp 9–369, esp. p 35. 110 Banković et al (Reports, 2001-XII), decision of 12 December 2001 (para. 61). Moreover, the Court held that: its recognition of the exercise of extra-territorial jurisdiction by a Contracting State is exceptional: it has done so when the respondent State, through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the Government of that territory, exercises all or some of the public powers normally to be exercised by that Government. (ibid, para. 71) 111 YILC, 1966, vol. II, pp 213–14, para. 5. 112 Ibid, p 214, para. 6. 113 1946 UNTS 3. * Professor of Public Law, University of Strasbourg; former Professor of Public Law, Robert Schuman University, Strasbourg, France.

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Volume I, Part III Observance, Application and Interpretation of Treaties, s.2 Application of Treaties, Art.29 1986 Vienna Convention Syméon Karagiannis From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Treaties, application — Territory, title

(p. 759) 1986 Vienna Convention Article 29 Territorial scope of treaties Unless a different intention appears from the treaty or is otherwise established, a treaty between one or more States and one or more international organizations is binding upon each State party in respect of its entire territory.

Bibliography Manin, P. R., ‘The European Communities and the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations’, CMLR, 1987, pp 457–79 1. The task of epigones is not an easy one. This is what Special Rapporteur Paul Reuter was probably thinking when the time came for him to present draft Article 29 of the Convention on the Law of Treaties between States and International Organizations or between International Organizations to the members of the ILC. After explaining his misgivings about the wording of Article 29 of the 1969 Vienna Convention,1 of which he claimed to be ‘an ardent defender’, he conceded that he had chosen to propose a solution to his colleagues that he did ‘not consider very brilliant but one that remains faithful to the [1969] Vienna Convention’ on the topic of the territorial scope of this category of treaties.2 The profound respect he held for the 1969 Convention had led him to reproduce Article 29 word for word, so that the result was, indeed, not ‘very brilliant’: in fact it is difficult to see how this draft Article actually relates to the draft Convention for which the Special Rapporteur was responsible. Nikolaï Ouchakov, a member of the Commission, then judiciously proposed to insert the words ‘between one or more States and one or more international organizations’3 into the draft. After several members of the Commission had spoken in favour of this amendment, the Special Rapporteur readily acquiesced to this solution. It was in this way then that in 1977 the ILC adopted the draft of Article 29, an Article that would not be further modified.4 Neither would it be the subject of any governmental observations either during the Commission's work or at the time of the Conference in 1986. Is it any wonder then that it was adopted without being put to a vote?5 2. Such a linear presentation of the development of Article 29 of the 1986 Convention, even if it does correspond to reality, is likely nonetheless to leave in the shade the main issue that arises with regard to the territorial scope of treaties concluded by international organizations: can an international organization be deemed to possess a territory? As a matter of fact, this issue did not escape the sagacity of the Special Rapporteur, particularly (p. 760) since he was perfectly familiar with the functioning of the European Communities, which were—and the European Union still is—a priori the international organizations that are by far the most concerned with the 1986 Convention.6 After referring to a number of examples of treaties that appeared to recognize the possibility for an international organization to possess a territory, Paul Reuter nevertheless came to the conclusion that ‘the term “territory” refers only to the spatial scope of application of given rules’, so obvious an assertion that it would be considered thoroughly useless if another consideration of the Special Rapporteur had not promptly clarified it: ‘In the current state of evolution of international law, it is probable that many Governments would raise objections to any reference to the notion of territory in connection with an international organization’.7 3. The question, largely a political one, probably had as its backdrop the dislike or mistrust of certain States vis-à-vis international organizations and, beyond that, vis-à-vis multilateralism (which supposedly restricts the sovereignty of States). The debate within the ILC provides some, albeit discreet, evidence of this. For example, Constantin Flitan stated categorically that ‘the concept of territory was valid only for States’.8 The Commission would later endorse this view in its commentaries on Article 29 when it held that it had resorted to the use of the term ‘territory’ of an international organization only for ‘ease of expression’ and not in the strict sense of the word.9 4. With that point, however, the familiar question of the usefulness of Article 29 could again arise. The draft adopted for this Article referred—and still refers in its final version—only to one of the two scenarios contemplated by the Convention, namely that of a treaty concluded between States and international organizations (excluding, therefore, the case of a treaty concluded between international organizations). This led certain members of the Commission to claim that Article 29 of the Convention of 1969 was probably also sufficient to cover the case of a treaty between States and international organizations10—an assertion that is questionable, of course,11 if one refers merely to Articles 1 and 2(1)(a) of the 1969 Convention. However, what saved Article 29 of the 1986 Convention, among other things, was the decision taken by the Commission early on to maintain, as far as possible, the parallelism between the two Conventions on the Law of Treaties. The deletion of Article 29 would have created a vacuum or, even worse, a different numbering of the Articles of the two Conventions. In short, aesthetics made a difference in the matter. 5. In the face of the refusal to recognize the capacity for an international organization to possess territory, the actual usefulness of Article 29 of the 1986 Convention would be that this provision could take into account the territory of the member States of the contracting international organization. The Special Rapporteur had already considered this scenario. In his Fourth Report in 1975, he had indeed contemplated inserting a second paragraph into Article 29 stating:

(p. 761) Unless a different intention appears from the treaty or is otherwise established, the scope of application of a treaty extends, in the case of an international organization which is a party to the treaty, to the entire territory of the States members of that organization.12 Conscious of his audacity and probably drawing his inspiration from Article 300(7) (former Art. 228(2))13 of the Treaty establishing the European Community14, the Special Rapporteur put forward the suggestion that an additional paragraph should be inserted in Article 29; however, he did this only in his commentary to the draft. Among the reasons causing him to hesitate, which he freely admits, was one in particular: the question was likely to go far beyond the issue of the territorial application of treaties15 and touch—‘at least in appearance’—the question of the effects of treaties with regard to third parties. Now this question is a particularly sensitive one since it relates to one of the key questions of the law of international organizations (are member States third parties vis-à-vis treaties signed by the international organization?), a question that the ILC would take up later within the framework of Articles 34 and following of the Convention.16

References 6. However, that said, and despite the charm that certain great powers always find with unilateralism, it seems that in recent years a general decline in the instinctive distrust that some States have for international organizations could be witnessed.17 Even assuming such distrust has for the most part been put aside, there still does not emerge a readiness to recognize that international organizations, or at least a great majority of them, could possess a territory. Given the conceptual and political difficulty of considering the territory of its member States as a territory of an organization, it is obvious that only an international organization responsible for—at the very least—the management of a given territory, which would not be subject to the sovereignty of any single State,18 could usefully be taken into account here. 7. With some boldness,19 one might consider the International Seabed Authority as an international organization of this type. This organization was created by the 1982 United (p. 762) Nations Convention on the Law of the Sea, and all the States parties to this Convention automatically become members of the Authority.20 The Authority is, more specifically, mandated by its member States to ‘organize and control activities in the Area, particularly with a view to administering the resources of the Area’.21 To this effect, not only does it have the ‘powers and functions…expressly conferred upon it by this Convention’ but also ‘such incidental powers, consistent with this Convention, as are implicit in and necessary for the exercise of those powers and functions with respect to activities in the Area’.22 The said Area includes ‘the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction’.23 Of course it is impossible to claim that the Authority exerts any ‘sovereignty’ over the Area, but it has the ability to manage and control the main activities that may be undertaken there, as well as the power, if necessary, to defend the Area against the maritime influence of member States, tantamount to recognizing, if not a territory, at least a territorial base of its own.24

References 8. Two obstacles, however, seem to emerge against a recognition of the concept of ‘territory’ to the benefit of the International Seabed Authority. The first relates to the non-universal participation in the Convention on the Law of the Sea, which, for example, would prevent the Authority from defending its ‘territory’ against the claims of coastal States that are not parties to the Convention. Nevertheless, it should be noted that generally, and slowly but surely, the membership of the Authority tends to become universal. Thus it should be noted that 160 States were parties to the Convention as at mid-2010. Moreover, international law being what it is, it is not necessarily easier for a State to protect its territory (except, of course, and understandably so, if it is necessary to resort to force) than for the Authority to protect the Area. 9. The second obstacle concerns the intrinsic qualities of the Area. Can it be seen as a real territory, as this is commonly understood? The answer seems to be no. The Area is a space rather than a territory.25 And yet, even if one concludes that the International (p. 763) Seabed Authority is not eligible for inclusion among the international organizations that could have a territorial base, the very precedent that it would constitute is quite interesting. Thus, the proclamation of the International Seabed Area as the common heritage of mankind under the Convention on the Law of the Sea (Art. 136) (and before that by Res. 2749 [XXV] of the UN General Assembly),26 served as a model to the claims of some members of the United Nations considering the proclamation of Antarctica as a common heritage of mankind.27 It remains that any future international organization—which may well be the United Nations itself—that is made responsible for the administration of Antarctica would undeniably be an international organization possessing a State-type territorial basis. It is perhaps unfortunate that the 1986 Vienna Convention, in the end rather suspicious of international organizations while at the same time dedicated to the regulation of their conventional relations, did not wish to consider the existence of such a type of organization, even if only in a hypothetical way. *

SYMÉON KARAGIANNIS

References

Footnotes: 1 See supra, commentary on Art. 29 of the 1969 Vienna Convention, n 20. 2 YILC, 1977, vol. I, p 117, para. 25. 3 Ibid, p 117, para. 26. 4 YILC, 1977, vol. II, Part Two, p 120; YILC, 1982, vol. II, Part Two, p 40. It should be noted that the commentaries to the reports of the ILC to the General Assembly are also identical. 5 See supra, commentary on Art. 29 of the 1969 Vienna Convention, n 1. 6 See on this point Ph. Manin, ‘The European Communities and the Vienna Convention on the Law of Treaties between States and International Organisations or between International Organisations’, CMLR, 1987, pp 457–79. 7 YILC, 1975, vol. II, p 41, para. 5. He later added that ‘it would be very dangerous to refer to the territory of an international organization’ (YILC, 1977, vol. I, p 117, para. 25). 8 YILC, 1982, vol. I, p 16, para. 14. 9 YILC, 1982, vol. II, Part Two, p 121, para. 2. Same commentary in YILC, 1982, vol. II, Part Two, p 40, para. 2. 10 See eg Calle y Calle (YILC, 1977, vol. I, p 118, para. 32) and El Rasheed Mohamed Ahmed (YILC, 1982, vol. I, p 16, para. 12). 11 Several members of the Commission noted this. 12 YILC, 1975, vol. II, p 41, para. 6. 13 This provision reads: ‘Agreements concluded [by the European Community] under the conditions set out in this Article shall be binding…on Member States’. 14 The audacity resides in the fact that the EC Treaty is probably the only one to contain such a provision. 15 Actually the Special Rapporteur here favours the term ‘scope of application’ of the treaty. One recalls the criticisms of P. Reuter with regard to the terminology used in the 1969 Convention (see supra, commentary on Art. 29 of the 1969 Vienna Convention, nn 14 and 31). 16 With the very distinctive efforts of Stefan Verosta (YILC, 1977, vol. I, p 119, para. 35). 17 It is a fact that the Soviet school of international law, main source of distrust along with the Naples School of Rolando Quadri, can no longer take advantage of its past support… 18 One could, however, put forth the hypothesis that in exceptional (and obviously provisional) circumstances, an international organization (in general, the UN) could be given the responsibility de jure as well as de facto for the administration of a given territory. The prototype for this remains South West Africa, which, according to UN General Assembly Res. 2145 (XXI) of 27 October 1966, was ‘directly under the control of the United Nations’. The Council of the United Nations for Namibia, created the following year by Res. 2248 (XXII) of 19 May 1967, would represent (until Namibia's independence) something between an international organization (it was a subsidiary body of the UN) and a State (cf R. Zacklin, ‘The Problem of Namibia in International Law’, RCADI, 1981-II, vol. 171, pp 225–339, esp. pp 308 ff). Some multilateral conventions in fact treated the Council as a State. One such example was the 1982 Convention on the Law of the Sea (UNCLOS), which allowed it to ratify and in this way become a party to the Convention (Art. 305(1)(b)). 19 Boldness somewhat mitigated perhaps by the judgment handed down by the Arbitral Tribunal on 10 June 1992 in the case of Delimitation of maritime areas between Canada and France (text in RIAA, vol. XXI, pp 265–341). According to that judgment: every decision by which a Tribunal would recognize rights related to the continental shelf beyond the 200-mile limit or would reject such rights in parties would constitute a decision implying a delimitation not ‘between the Parties’ but between each of them and the international community, represented by the organizations responsible for the administration and protection of the international zone of the high seas fonds marins (the ocean floor located beyond national jurisdiction) that have been declared common heritage of mankind (own translation). Original French text reads as follows: Toute décision par laquelle le Tribunal reconnaîtrait aux Parties des droits sur le plateau continental au-delà de 200 milles marins ou rejetterait de tels droits constituerait une décision impliquant une délimitation non pas ‘entre les Parties’ mais entre chacune d'elles et la communauté internationale, représentée par les organes chargés de l'administration et de la protection de la zone internationale des fonds marins (les fonds marins situés au-delà de la juridiction nationale) qui a été déclarée patrimoine commun de l'humanité. (p 292, para. 78; emphasis added). 20 UNCLOS, Art. 156(2). 21 Ibid, Art. 157(1). 22 Ibid, Art. 157(2). 23 Ibid, Art. 1(1)(1). 24 If the Authority is not explicitly given power to defend the ‘territory’ of the Area, it is more than likely that such power is implicitly found in the aforementioned Art. 157(2) UNCLOS. To this end, the Authority could bring disputes with a State party under Art. 187(b)(i) UNCLOS to

the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea. This provision covers ‘acts or omissions…of a State Party alleged to be in violation of this Part [of the Convention] or the Annexes relating thereto or of rules, regulations and procedures of the Authority adopted in accordance therewith’. 25 Moreover, one could also say the same about international commissions on fisheries, responsible a priori for the management of fisheries in a portion of the high seas and the constitutive instruments of which regularly grant them legal personality and the ability to enter into international agreements. See eg Art. II(3) of the Convention of 24 October 1978 that set up the Organization of Fisheries of the Northwest Atlantic (1135 UNTS 369), a provision that allowed it to conclude agreements with other international organizations. 26 Text in J.-P. Quéneudec, Conventions maritimes internationales (Paris: Pedone, 1979), p 54. 27 See on this question (among others), A. de Marffy, ‘L'Antarctique: quatre ans de débats à l'ONU’, Espaces et Ressources Maritimes, no. 2, 1987, pp 3–31. * Professor of Public Law, University of Strasbourg; former Professor of Public Law, Robert Schuman University, Strasbourg, France.

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Volume I, Part III Observance, Application and Interpretation of Treaties, s.2 Application of Treaties, Art.30 1969 Vienna Convention Alexander Orakhelashvili From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Treaties, successive — UN Charter — Codification — Customary international law — Jurisdiction — International courts and tribunals, procedure — Treaties, application

(p. 764) 1969 Vienna Convention Article 30 Application of successive treaties relating to the same subject matter 1. Subject to Article 103 of the Charter of the United Nations, the rights and obligations of States Parties to successive treaties relating to the same subject matter shall be determined in accordance with the following paragraphs. 2. When a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or later treaty, the provisions of that other treaty prevail. 3. When all the parties to the earlier treaty are parties also to the later treaty but the earlier treaty is not terminated or suspended in operation under article 59, the earlier treaty applies only to the extent that its provisions are compatible with those of the latter treaty. 4. When the parties to the later treaty do not include all the parties to the earlier one: (a) as between States Parties to both treaties the same rule applies as in paragraph 3; (b) as between a State party to both treaties and a State party to only one of the treaties, the treaty to which both States are parties governs their mutual rights and obligations. 5. Paragraph 4 is without prejudice to article 41, or to any question of the termination or suspension of the operation of a treaty under article 60 or to any question of responsibility which may arise for a State from the conclusion or application of a treaty, the provisions of which are incompatible with its obligations towards another State under another treaty. A. Antecedents and early views 765 Early cases on conflict between treaties on the same subject matter 765 The Vienna Convention codification process 767 B. General characteristics of Article 30 772 Object and purpose 772 Customary status 774 Residual character 774 C. General scope of Article 30 775 Conditions of application 775 Treaties and situations covered 777 D. Individual aspects of interpretation 780 Paragraph 1: the impact of the United Nations Charter 780 Paragraph 2: subordination of one treaty to another 785 Paragraph 3: successive treaties between the same parties 789 Paragraph 4: non-identity of parties to successive treaties 791 Paragraph 5: responsibility for the conclusion of incompatible treaties 798 E. Conclusion 799

(p. 765) A. Antecedents and early views Early cases on conflict between treaties on the same subject matter 1. Well before the codification efforts on the law of treaties began, the issues of resolving conflicts between two incompatible treaties had been arising in practice. The HondurasNicaragua case before the Central American Court of Justice involved the claims of Nicaragua's violation of the prior treaty rights of Costa Rica and El Salvador by concluding the Bryan-Chamorro Treaty with the United States. El Salvador commenced this case against Nicaragua, claiming that the conclusion of the Bryan-Chamorro Treaty, which provided for the leasing of a naval base in the Gulf of Fonseca to the United States, violated its co-ownership rights over the Gulf under the Treaty of Peace and Amity with Nicaragua. The Court considered it unquestionable that the Bryan-Chamorro Treaty violates primordial interests of the Republic of El Salvador as a Central American State and that that moral violation results from the fact that the Government of Nicaragua ceded to the United States an integral part of Nicaragua's territory when it conveyed a naval base in the Gulf of Fonseca and leased Great Corn Island and Little Corn Island in the Atlantic, turning those territories over to the complete domination of the sovereignty of the 1

concessionary nation.1 Consequently, ‘Article II of the Bryan-Chamorro Treaty is violative of Articles II and IX of the Treaty of Peace and Amity entered into by the Republics of Central America’.2 As the Court pointed out: The United States have the power to disrupt the equality of treatment accorded to all the vessels of the signatory countries by Article IX of the Treaty of Peace and Amity; and Nicaragua, by the voluntary act of her Government, has incapacitated herself from complying with what was agreed to.3 Thus: the Bryan-Chamorro Treaty, which contains no limitation or reserve in that respect, but which rather avoids expressing the fact that in the leased territory and waters the laws and sovereign authority of the United States alone will govern, places in jeopardy what the Republic of El Salvador acquired in Article IX of the General Treaty of Peace and Amity, since it leaves them dependent upon a foreign sovereignty that is under no obligation to recognize or respect them.4

References 2. In procedural and jurisdictional terms, the Court was without competence to declare the Bryan-Chamorro Treaty to be null and void, as in effect, the high Party complainant requests it to do when it prays that the Government of Nicaragua be enjoined ‘to abstain from fulfilling the said Bryan-Chamorro Treaty.’ On this point the Court refrains from pronouncing decision, because, as it has already declared, its jurisdictional power extends only to establishing the legal relations among the high Parties litigant and to issuing orders affecting them, and them exclusively, as sovereign entities subject to its judicial power. To declare absolutely the nullity of the Bryan-Chamorro Treaty, or to grant the lesser prayer for the injunction of abstention, would be equivalent to adjudging and deciding respecting the rights of the other Party signatory to the treaty, without having heard that other Party and without its having submitted to the jurisdiction of the Court. (p. 766) Thus, the Court concluded that: the Government of Nicaragua is under the obligation—availing itself of all possible means provided by international law—to reestablish and maintain the legal status that existed prior to the Bryan-Chamorro Treaty between the litigant Republics.5

References 3. The Oscar Chinn case before the Permanent Court of International Justice (PCIJ) involved the derogation from the General Act of Berlin of 1885, which established an international regime for the Congo Basin. The Act contained no provision authorizing the conclusion of bilateral agreements between the parties, and provided that any modification or improvement of the Congo regime should be introduced by ‘common accord’ of the signatory States. Nevertheless, in 1919 certain parties to the Berlin Act, without consulting others, concluded the Convention of St Germain whereby, as between themselves, they abrogated a number of the provisions of the Berlin Act, replacing them with a new regime of the Congo. The Court observed that, no matter what the Berlin Act might have provided for, the Convention of St Germain had been relied on by both the litigating States as the source of their obligations and must be regarded by the Court as the treaty which it was asked to apply. The 1885 Treaty was irrelevant to the dispute as no party had referred to it. Admittedly, the question of the legality of the Convention of St Germain had not been raised by either party.6

References 4. Judges Van Eysinga and Schücking disagreed with the Court and suggested that the question of the validity of the treaty did not depend on whether any government had challenged its legality, but was a question of public order which the Court was bound itself to examine ex officio.7 Judge Schücking clearly emphasized a link between substance and jurisdiction: the principle of consent cannot require the Court to apply what is void as a matter of substance. 5. The background of the case of the European Commission of the Danube was that the 1919 Versailles Treaty contained provisions concerning the international regime for the Danube, including the composition and powers of the European Commission of the Danube. The conclusion of a convention establishing a definitive statute for the Danube was also intended. This convention was later concluded, but its parties did not comprise all the parties to the Treaty of Versailles, although it covered all States which were involved in the dispute that led to the request for the Permanent Court's Advisory Opinion. The principal question before the Court was the capacity of parties to conclude a treaty modifying provisions of the Treaty of Versailles. The Court noted the relevance of the issue of whether the Conference which framed the Definitive Statute had authority to make any provisions modifying either the composition or the powers and functions of the European Commission, as laid down in the Treaty of Versailles, and as to whether the

meaning and the scope of the relevant provisions of both the Treaty of Versailles and the Definitive Statute are the same or not. But in the opinion of the Court, as all the Governments concerned in the present dispute have signed and ratified both the Treaty of Versailles and the Definitive Statute, they cannot, as between themselves, contend that some of its provisions are void as being outside the mandate given to the Danube Conference under Article 349 of the Treaty of Versailles.8 Thus the PCIJ applied the lex specialis principle, but refused to address the broader context that may have affected treaty relations between the litigants and third parties. In (p. 767) practice, such approach can contradict the pacta tertiis rule or risk adopting judicial decisions that will have no practical effect due to both the pacta tertiis rule and the principle that judicial decisions only bind the parties to the litigation (Art. 59 of the PCIJ Statute). All this confirms not only that the regime of application of conflicting treaties is not free-standing (in the sense that it can raise the pacta tertiis issue that will have to be resolved quite independently from what this regime would have envisaged), but also that the substance of these issues is inseparable from the ‘procedural’ context of adjudication.

References 6. The cases supra only partially address the relevant problems of the application of successive treaties relating to the same subject matter, and offer different outcomes. The Honduras-Nicaragua case involves limitations on judicial jurisdiction, yet makes the most of the extent of the available jurisdiction in the case,9 for the sake of constructively resolving the dispute by pronouncing on illegalities caused by the treaty. The Oscar Chinn case, on the other hand, uses jurisdictional and procedural limitations, such as the ultra petita rule, so as to restrict the applicable law. The approach adopted both in Oscar Chinn and Danube Commission can give rise to the duality of applicable law to the rights and obligations of States, including the litigants in the pertinent cases.10

References 7. Although these earlier decisions have provided some conceptual basis for drafting the antecedent provisions to Article 30, as was reflected in the codification process, they fall short of explaining the full potential of and limits on the relevance of Article 30. Later decisions, as will be seen, indicate both that Article 30 of the Vienna Convention contains rules adaptable to the nature of treaty obligations and that the impact of Article 30 in the relevant cases may be limited.

The Vienna Convention codification process 8. The first codification attempt to deal with the conflict of treaties was undertaken within the framework of the Harvard international law project. The Harvard Draft on the Law of Treaties adopted the principle that if one State assumes an obligation under a treaty which conflicts with its obligations under an earlier treaty with a different State, the earlier treaty takes priority. The Commentary pointed out that the principle of the primacy of the prior treaty was an incidence of the principle pacta sunt servanda and had not been contested in judicial practice. In addition, the Harvard draft did not envisage the rejection of the capacity of a State to enter into a treaty that conflicts with an earlier treaty concluded with a different State, but only to emphasize that the first treaty prevailed over the second one.11 This approach conceives the entire problem in its normative dimension. 9. At the early stage of the ILC codification, Special Rapporteur Lauterpacht approached this issue as a matter of invalidity of treaties. His draft Article 16 (Consistency with prior treaty obligations) suggested that ‘[a] treaty is void if its performance involves a breach of a treaty obligation previously undertaken by one or more of the contracting Parties’. The Commentary specified that: (p. 768) an international tribunal requested to enforce a treaty the performance of which involves a breach of a treaty obligation previously undertaken by one or more of the Parties to the new treaty must decline to enforce the subsequent treaty. It must do so on the ground that the latter is void. This followed from the principle that ‘if Parties to a treaty bind themselves to act in a manner which is a violation of the rights of a Party under a pre-existing treaty, they commit a legal wrong which taints the subsequent treaty with illegality’. Under this view, the illegality of the treaty caused its invalidity.12 Lauterpacht's approach follows the principle that the conclusion of the second incompatible treaty is impermissible, along with the ex injuria jus non oritur maxim. 10. Paragraph 3 of the same Article suggested that invalidity would ensue ‘only if the departure from the terms of the prior treaty is such as to interfere seriously with the interests of the other Parties to that treaty or seriously impair the original purpose of the treaty’. This rule was deemed to apply to certain multilateral conventions, such as those governing the conduct of armed conflict, and regulating the rights of protected persons, such as the 1899 and 1907 Hague Conventions. It was, according to Lauterpacht, ‘clearly undesirable that [their] revision should be possible only through unanimous agreement of the original contracting Parties’. New treaties in this field ‘did not adversely affect the interest of the original contracting Parties or impair the purpose of the original treaties’.13 This reasoning is in accordance with the objective nature of humanitarian law treaty obligations in terms of what international tribunals proclaimed from the Genocide Advisory Opinion onwards.

However, such legal principle would be inherently vague and extremely broad as it would involve the difficulty of determining in individual cases whether or not the interest of original contracting parties is adversely affected and whether the purpose of original treaties is impaired. The more suitable approach was suggested at the subsequent stages of the ILC codification of the law of treaties in terms of distinguishing between treaties in relation to the divisibility of their object and purpose.

References 11. The confusing nature of the problem of application of different treaties relating to the same subject matter, namely the need to distinguish the problem of invalidity from that of application, was obvious in the work of the next Special Rapporteur, Sir Gerald Fitzmaurice. According to the general rule suggested in Fitzmaurice's draft Article 16(3), ‘[i]ncompatibility with the provisions of a previous treaty gives rise prima facie to a conflict of obligation, rather than, necessarily, to the invalidity of the treaty’.14 As Fitzmaurice specified, ‘what the conflict is, is not so much a conflict between two treaties but, as just stated, a conflict between two sets of obligations of certain of the Parties’.15 This related to the position of those countries which are Parties to both treaties. Only for them can this conflict arise. For the countries which are Parties to only one of them—in particular, in the present context, those who are Parties only to the later treaty—there is no conflict or possible cause of invalidity.16 This solution was premised on the bilateral nature of each of the relevant treaty obligations and the possibility of it being split into multiple States' bilateral treaty relations. 12. Fitzmaurice, as Lauterpacht, understood the conflict between treaties and that between a treaty and jus cogens as part of the same legal framework. Article 18(1) suggested (p. 769) that where a treaty is in conflict with a previous treaty embodying accepted rules of international law in the nature of jus cogens, the invalidity of the later treaty would ensue on the ground of conflict with general international jus cogens as opposed to the conflict with an earlier treaty as such. In the Commentary Fitzmaurice explained that if a treaty contains general international law rules, this will be either because the treaty declares or codifies existing rules of international law, or because the rules it contains have come to be recognized as rules valid for and erga omnes, and have been received into the general body of international law. It will be the underlying conflict with the latter, rather than with the treaty, as such, which evidences them, that will be the cause of any invalidity in a later treaty.17 Apart from this case, Fitzmaurice elaborated separately upon the cases of bilateral and reciprocal multilateral treaties, and of treaties embodying interdependent and integral, that is self-existent and absolute, obligations that cannot be split bilaterally. In relation to the ‘normal’ cases of ‘bilateral’ treaty obligations, Fitzmaurice pointed out that the conflict with an earlier treaty did not invalidate the latter treaty. Instead, international law predicated the right to reparation in favour of the party which suffered injury as a consequence of noncompliance with the previous treaty.18 Voidness would not ensue ‘because one set of provisions could be applied by a Party in its relations with one country, and another (perhaps very different) set of obligations could be applied in its relations with another country’. However, with multilateral treaties embodying indivisible (interdependent and integral) obligations, [t]he nature of the obligation is such that a directly conflicting treaty, if carried out, must it would seem necessarily invoke a breach of the earlier. Thus the complete invalidity of the treaty, to the extent of the conflict at any rate, may reasonably, and probably must, be predicated.19 13. In terms of locating the relationship between invalidity of treaties and the application of treaties, the first two Special Rapporteurs' visions were different. Lauterpacht's approach was no doubt motivated by higher considerations of the rule of law in international affairs and is certainly defensible on principle in the sense that States should not conclude treaties that conflict with their other and earlier treaty obligations with third States. Fitzmaurice was also guided by the considerations of the rule of law, as can be seen from the thesis that invalidity shall necessarily accrue to treaties that conflict with earlier treaties embodying indivisible obligations. However, Fitzmaurice's approach also considers the structural characteristics of the international legal system, namely its bilateralist pattern under which certain, and indeed most, illegalities can be produced and cured on a bilateral level. There seems to be, under this approach, no need to taint with invalidity the treaty the legality of which is only a matter of bilateral relations between States. 14. Special Rapporteur Waldock proposed to the ILC draft Article 14 in which the difference between the invalidity of treaties and the conflict between treaties was presented as the core issue. The focus was shifted from the invalidity to the application of treaties and State responsibility. According to draft Article 14: 1. (a) Where the Parties to two treaties are the same or where the Parties to a later treaty include all the States Parties to an earlier treaty, the later treaty is not invalidated by the fact that some or all of its provisions are in conflict with those of the earlier treaty. (p. 770) (b) In any such case the conflict between the two treaties shall be

resolved on the basis of the general principles governing the interpretation and application of treaties, their amendment or termination. 2. (a) Where one or a group of the Parties to a treaty, either alone or in conjunction with third States, enters into a later treaty, the later treaty is not invalidated by the fact that some or all of its provisions are in conflict with those of the earlier treaty. (b) In any such case the conflict between the two treaties shall be resolved—(i) if the effectiveness of the second treaty is contested by a State Party to the earlier treaty which is not a Party to the later treaty, upon the basis that the earlier treaty prevails; (ii) if the effectiveness of the second treaty is contested by a State which is a Party to the second treaty, upon the basis of the principles governing the interpretation and application of treaties, their amendment or termination. Paragraphs 3 and 4 were meant to reiterate reservations regarding the amendment of charters of international organizations in accordance with the rules stipulated in those charters (eg Arts 108 and 109 of the UN Charter), Article 103 of the UN Charter, and the invalidating effect of jus cogens. Still, Article 14 was envisaged as an aspect of the validity of treaties. As Waldock specified: The legal effect of a conflict with a prior treaty…already emphasized in the Commentary to the previous article, is a question which is quite distinct from that of conflict with a jus cogens rule, even although they may overlap when the jus cogens rule is embodied in a general multilateral treaty such as the Genocide Convention. The present article, therefore, is concerned exclusively with the question how far the essential validity of a treaty may be affected by the fact that its provisions conflict with those of a prior treaty.20 Waldock then pointed out that the majority of writers did not consider that the mere conflict of treaties should bring about invalidity; and also referred to international jurisprudence, mainly decisions of the Permanent Court, which upheld the possibility of the parallel continuous validity of conflicting treaty instruments, to support this position.21 Referring to the Oscar Chinn case specifically, Waldock thought it unlikely that the Court would have adopted any different view, if the stipulation had taken the form of an express prohibition against contracting out of the treaty otherwise than by ‘common accord’. It is also arguable that there is implied in every multilateral treaty an undertaking not to violate its provisions by entering into inconsistent bilateral agreements. Accordingly, it hardly seems justifiable to provide, as a special case, that a later treaty shall be void if it conflicts with a prior treaty which contains an express prohibition against inconsistent bilateral agreements. An undertaking in a treaty not to enter into a conflicting treaty does not, it is thought, normally affect the treaty-making capacity of the States concerned, but merely places them under a contractual obligation not to exercise their treaty-making powers in a particular way. A breach of this obligation engages their responsibility; but the later treaty which they conclude is not a nullity.22 On this basis Waldock concluded that: the safest course for the Commission to adopt is not to prescribe nullity in any case where the earlier treaty is of a type involving reciprocal obligations. In other words, it should recognize the priority of the earlier treaty but no more. A Party to it which enters into a later inconsistent treaty cannot ‘oppose’ the later treaty to any Party to the earlier treaty which is not also a Party to the later one. A State Party to both treaties may find its international responsibility engaged by the mere (p. 771) conclusion of the later treaty or by its application in a manner violating the earlier treaty; but the inconsistency does not make the later treaty null and void in law.23 Commenting on Fitzmaurice's classification of treaties into reciprocal, interdependent, and integral (self-existent, absolute), Waldock pointed out that some integral treaties already fall within the category of jus cogens and would invalidate conflicting agreements, there being no reason specifically to provide for the invalidity of such conflicting agreements in the clause that deals with the application of conflicting treaties.24

References 15. One reason why Waldock advised against considering treaties conflicting with interdependent and integral treaty obligations invalid was the fact that humanitarian treaties include denunciation clauses.25 But denunciation is essentially different from derogation and normative conflict. Denunciation means that a treaty as a whole ceases to be in force for the relevant States parties, and this has to take place subject to procedural requirements provided in the treaty itself or in the Vienna Convention. Certain treaties, such as the 1966 International Covenant on Civil and Political Rights (ICCPR), indeed exclude termination, including by denunciation. Derogation from the treaty, on the other hand, asserts an inter se modification of treaty obligations and produces the normative conflict with the relevant integral or interdependent obligation, where the treaty embodying that obligation still continues in force on a general plane. The possibility of a treaty embodying non-reciprocal obligations being denounced does not militate against the non-reciprocal character of those obligations and the implications of that non-reciprocal character.

References 16. It has to be noted that Waldock's analysis is not straightforwardly based on a principle that would explain why invalidity of treaties should not be the case whenever treaties conflict. The reference to judicial decisions that involved some controversial points is not sufficient for clarifying this field of law. But this shortcoming is to some extent mitigated by the residual nature of the final product of Article 30 and the fact that it does not prejudice the jus cogens invalidity. 17. The final stage of the Commission's work on this subject matter has been Article 26 and its Commentary in the 1966 Final Draft on the Law of Treaties.26 The Commission specified that the problem of interdependent and integral treaties can sometimes overlap with the effect of jus cogens and thus be relevant in the law of treaty invalidity. Short of that, the issue of conflict of a treaty with another treaty of interdependent and integral character should be left to the law of State responsibility.27 Thus, the ILC followed Waldock's proposal to exempt the issue of the conflict of treaty obligations from the field of the validity of treaties, and treat the whole process as that of relative priority of treaty obligations. The Commission pointed out that: The rules in paragraph 4 [which is now para. 4 of Art. 30 of the Vienna Convention] determine the mutual rights and obligations of the particular Parties in each situation merely as between themselves. They do not relieve any Party to a treaty of any international responsibilities it may incur by concluding or by applying a treaty the provisions of which are incompatible with its obligations towards another State under another treaty. If the conclusion or application of the treaty constitutes an infringement of the rights of Parties to another treaty, all the normal consequences of the breach of a treaty follow with respect to that other treaty.28 (p. 772) Thus, whatever the implications of the Commission's refusal to formulate specific rules applicable to conflicts of treaties embodying indivisible obligations, the rules it actually formulated apply by definition only to treaties that embody obligations that can be split into bilateral relations between the contracting parties; that is treaties that can be applied differently to different parties. This leads to the Commission's conclusion that to some extent interdependent, and certainly integral, treaty obligations cannot be governed by the regime of application of treaties under Article 30: The Commission also noted that obligations of an ‘interdependent’ or ‘integral’ character may vary widely in importance. Some, although important in their own spheres, may deal with essentially technical matters; others may deal with vital matters, such as the maintenance of peace, nuclear tests or human rights. It pointed out that in some cases the obligations, by reason of their subject-matter, might be of a jus cogens character and the case fall within the provisions of articles 50 and 61 [antecedents to Arts 53 and 64 of the Vienna Convention]. But the Commission felt that it should in other cases leave the question as one of international responsibility.29 Still, paragraph 10 of the 1966 Final Commentary contains an indication that interdependent and integral treaty obligations may be unsuitable to be governed by paragraph 4. As for the Commission's characterization of the category of non-reciprocal treaty obligations: Some obligations contained in treaties are in the nature of things intended to apply generally to all the Parties all the time. An obvious example is the Nuclear Test-Ban Treaty, and a subsequent agreement entered into by any individual Party contracting out of its obligations under that Treaty would manifestly be incompatible with the Treaty. Other obligations may be of a purely reciprocal kind, so that a bilateral treaty modifying the application of the convention inter se the contracting States is compatible with its provisions. Even then the Parties may in particular cases decide to establish a single compulsive regime for matters susceptible of being dealt with on a reciprocal basis, e.g. copyright or the protection of industrial property.30 Thus some treaties have superior value because of their content and substance, the nonderogability that is inherent to the obligations they embody, or because States parties have agreed to endow the treaty with such status. 18. In broader terms, the Commission was thus keen not to formulate the rule authorizing the conclusion of one treaty that would justify the breach of another treaty, and observed that: in order to remove any impression that paragraph 4(c) [which later became para. 4(b) of Art. 30] justifies the conclusion of the later treaty, the Commission decided to reorient the formulation of the article so as to make it refer to the priority of successive treaties dealing with the same subject-matter rather than of treaties having incompatible provisions. The conclusion of the later treaty may, of course, be perfectly legitimate if it is only a development of or addition to the earlier treaty.31

B. General characteristics of Article 30 Object and purpose 19. The ambit of Article 30 can cover cases where international law is breached through the conclusion of a treaty, itself a source of international law. This is by no means specific (p. 773) to international law. The identity of law-making and illegal acts is also met in national legal systems where constitution, legislation, and administrative regulations, or acts of central and

local governments, are arranged in hierarchical order. Yet, it still happens that the acts placed at the lower level of hierarchy are in conflict with those at higher level, in which case the rules of conflict accepted in the pertinent legal system will resolve the conflict. International law also possesses rules of hierarchy and Article 30 is part of this legal framework. 20. The field covered by Article 30 can involve issues of high political importance. Important political settlements and arrangements can be damaged and undermined if some States parties to them join conflicting arrangements on the side. There have been major diplomatic controversies involving claims of incompatibility between treaty obligations assumed by the same State(s) in the aftermath of the First World War, such as the 1922 Rapallo Treaty between the Soviet Union and Germany, allegedly contradicting the provisions of the 1919 Versailles Peace Treaty that imposed armaments development restrictions on Germany, and of the Second World War, as embodied in the statement of the eight East European States as to the incompatibility of the US-British-French decisions regarding West Germany with the Potsdam Conference decisions, and in the Soviet memorandum of 31 March 1949 about the alleged incompatibility of the—then—draft NATO Treaty with the UN Charter.32 These controversies have never found conclusive and authoritative clarification. In addition, situations increasingly arise where human rights treaties, such as the European Convention on Human Rights, interfere with important policies of States, such as economic policies, or affect international cooperation to fight crime and terrorism, at times pursuant to other international treaties, including charters of international organizations. There are views that conflicts between treaties should be resolved on a political basis, either through mutual settlements or through fait accompli.33 Such views effectively attempt removing this matter from international law. But the inclusion of Article 30 in the Vienna Convention firmly evidences that this problem is part of international law. Politics could never provide a transparent and predictable guide as to how conflicts between treaties should be resolved, not least because States may differ as to what outcome would be regarded as politically suitable. The principal aim of Article 30 is to provide a set of rules as a legal guidance for addressing this field.

References 21. Article 30 does not aim at providing a complete regulation on legal consequences of treaties conflicting with each other. All it does is to lay down rules of thumb, or reference rules, working out some legal consequences while leaving others to more specific arrangements of conventional law. Article 30 deals both with cases potentially involving the illegality of treaties (para. 4(b)) and those which relate to a perfectly lawful derogation from other treaty obligations, unless some problems arise in terms of the indivisible object of one of the treaties involved (paras 1–3 and 4(a)). Hence, the rules of Article 30 are essentially neutral conflict, or reference, rules. But in principle, either directly or by (p. 774) referring to other arrangements (in terms of its residual character as shown infra), Article 30 includes both regulatory and sanctioning elements.

Customary status 22. The issue of the customary status of the provisions of Article 30 has to be addressed in the context of the treatment of these issues in jurisprudence after the Vienna Convention was adopted (in the following sections), and also in terms of this provision giving effect to commonly accepted maxims of normative conflict and hierarchy under international law, such as lex posterior or lex superior. Article 30 can to some extent be seen as a codification of customary principles of hierarchy of norms, such as lex specialis and lex posterior (paras 2 and 3) or an implication of the pacta tertiis rule (para. 4). There are no pronouncements in judicial practice as to Article 30's customary status, not least because, as shown infra, much of this practice focuses on factors that prevent the strict application of Article 30 solutions to pertinent cases. In this sense, it would be sound to assume that the customary status of the provisions under Article 30 depends on the modalities of the customary status of the general maxims to which they give effect and the limits on those maxims, not least as dictated by their mutual interaction, as a matter of general international law.

Residual character 23. The residual character of Article 30 has to be viewed in the context of several factors that —either being referred to in Article 30 itself such as Article 103 of the UN Charter or flowing from the particular nature of the pertinent legal frameworks—can on occasions lead to resolutions of conflicts between treaties that do not completely accord with the solutions under Article 30. The principal reason for this is that the application and relative priority of treaties under Article 30 cannot be viewed as a free-standing problem: its parameters depend on the operation of multiple aspects of the law of treaties, such as interpretation, normative conflict, validity, termination, as well as on the law of State responsibility—issues that transcend the field expressly covered by Article 30.

References 24. The regime of conflict between treaties under Article 30 reflects two basic characteristics of international law. In the first place, international law is consensual. States themselves determine through agreements what their obligations will be. In addition, and pursuant to consensualism, the distribution of international rights and obligations can be arranged bilaterally and legal regimes applicable as between different States can be different. This among others points to the residual nature of the rules expressed in Article 30. States could adopt bilaterally the principles of normative conflict they prefer: lex posterior, lex prior, or

anything else. Understandably enough, Article 30 contains some reference clauses which suggest that the rules of Article 30 are without prejudice to what States agree upon in specific treaty regimes, as well as to the Vienna Convention rules on the implied termination of treaties (Art. 59). As is clear from the preparatory work on what now is Article 30, this provision is likewise without prejudice to the legal regime of the invalidity of treaties conflicting with a peremptory norm (Art. 53). 25. The most important conceptual problem is that Article 30, particularly its paragraph 4(b), may create an impression that treaties can validly prescribe mutually contradictory outcomes and a treaty can violate international law yet be validly applicable. While this could be understandable from a pragmatic perspective, the same pragmatism dictates that the States concerned are not always very likely to tolerate such situations. (p. 775) This is yet another circumstance that should lead to viewing the Article 30 regime of relative priority of treaties as part of the broader context that governs validity and derogation in the law of treaties. 26. The essential difference between the invalidity of treaties due to their substance (of which the jus cogens invalidity is the only known instance) and treaties conflicting with other treaties is that in the former case the treaty is illegal because of its illegal object conflicting with a peremptory norm of general international law, while in the latter case the object of the treaty as such is perfectly lawful, relating to a subject matter on which States are in principle free to conclude agreements, the only problem being that it contradicts another, earlier, treaty with a different content. 27. As the ILC Special Rapporteur Waldock stressed: The problem of resolving conflicts with successive treaties dealing with the same matters may sometimes overlap with the question of conflict with a jus cogens rule; but the rule in the present article [draft Article which subsequently became Art. 53 of the Vienna Convention] is an overriding one of international public order, which invalidates the later treaty independently of any conclusion that may be reached concerning the relative priority to be given to treaties whose provisions conflict.34 The conflict of a treaty with a prior treaty obligation does not necessarily render a treaty objectively illegal (as the issue can still be resolved as between parties to a prior treaty), and does not by itself trigger the application of Article 53. But as soon as a treaty conflicts with jus cogens embodied in a treaty clause, Article 53 is triggered, and the more bilateral-conciliatory approach foreseen under Article 30 of the Vienna Convention is overtaken by the public order invalidity regime under Article 53. 28. Illegality of a particular treaty may be due to the fact that treaties in general constitute res inter alios acta. A treaty can be illegal inter partes, with consequent effect erga omnes, if it contradicts a peremptory norm. It can be illegal in relation to non-parties if it requires them to do something that is not allowed due to the obligations one or both of them have towards third States. Given that treaties cannot create obligations for non-parties (Art. 34 of the 1969 Vienna Convention), the legal position created as between the parties is not opposable to third parties, and can be illegal as far as third parties are concerned. For this very reason, what is thought of as res inter alios acta could in practical terms be unlawful and unenforceable even as between the parties.

C. General scope of Article 30 Conditions of application 29. As Article 30 refers to the application of treaties, it presupposes that the treaties it covers are validly applicable in casu and their content covers the relevant facts and situation. This requirement is not always observed in judicial practice. In the Al-Adsani case, the European Court of Human Rights considered that the grant of immunity to Kuwait under the 1978 UK State Immunity Act was in accordance with the 1972 European Convention on State Immunity, and this determined the ambit of the right to access to a court under Article 6 of the European Convention on Human Rights in the pertinent (p. 776) case.35 But the 1972 Convention had no relevance whatsoever for that case. It is ratified by eight States only and certainly cannot generate any obligation to grant immunity to Kuwait—a State which is not only not a party to that treaty, but is not even eligible to become one.

References 30. Subject to the points made supra, treaties can supplement each other by relating to the same subject matter (eg the case of optional protocols),36 and whether they are in conflict depends on their actual terms. According to Vierdag, the requirement of the sameness of the subject matter under Article 30 is satisfied if an attempted simultaneous application of two rules to one set of facts or actions leads to incompatible results.37 Thus, the sameness of the subject matter of treaties essentially relates to normative conflict between them. According to Jenks, a conflict between treaties can arise if, for instance, a multilateral treaty is revised and not all parties to the older version of the treaty are parties to its newer version.38 31. In some cases conflict can be avoided by construing obligations under successive treaties as bilateral obligations which apply to treaty relations of different groups of parties. A divergence between treaty provisions on a related subject does not, according to Jenks, constitute a conflict, because ‘a conflict in the strict sense of direct incompatibility arises only where a Party to the two treaties cannot simultaneously comply with its obligations under both treaties’.39 There is no conflict if the compliance with one treaty requires refraining from

exercising a privilege or discretion accorded by the other. When the interpretation of an instrument is doubtful, it is reasonable to presume that the parties intended it to be construed in a manner consistent with the obligations of some or all of them under other instruments: the presumption against conflict is not, however, of an overriding character. It is one of the elements to be taken into account in determining the meaning of a treaty provision, but will not avail against clear language or clear evidence or intention. Such a presumption will not suffice to reconcile clearly irreconcilable provisions.40 In other words, ‘the presumption against conflict may eliminate certain potential conflicts; it cannot eliminate the problem of conflict’.41 As Pauwelyn further comments, ‘the presumption against conflict is a presumption in favour of continuity, not a prohibition of change. It ought not to lead to a restrictive interpretation of the new, allegedly conflicting, norm’.42 In other words, where there is normative conflict, it ought to be treated as such, instead of using presumptions as if it were not there. This is so among others because the ambiguity of treaty provisions can be disposed of through the use of interpretation methods which will help to identify the content of the relevant provision and clarify the question whether there is a normative conflict. (p. 777) 32. The ILC Study on Fragmentation in International Law addresses the argument that Article 30 suggests techniques for dealing with successive treaties relating to the ‘same subject matter’, and Article 30 does not apply when a conflict emerges, for example, between a trade treaty and an environmental treaty because those deal with different subjects. But the characterizations of the subject of a treaty, such as ‘trade law’ or ‘environmental law’, have no inherent normative value. They are only informal labels that describe the instruments from the perspective of different interests or different policy objectives. Most international instruments may be described from various perspectives: a treaty dealing with trade may have significant human rights and environmental implications and vice versa.43 Consequently: The criterion of ‘same subject-matter’ seems already fulfilled if two different rules or sets of rules are invoked in regard to the same matter, or if, in other words, as a result of interpretation, the relevant treaties seem to point to different directions in their application by a Party.44 Thus: the test of whether two treaties deal with the ‘same subject matter’ is resolved through the assessment of whether the fulfilment of the obligation under one treaty affects the fulfilment of the obligation of another. This ‘affecting’ might then take place either as strictly preventing the fulfilment of the other obligation or undermining its object and purpose in one or another way.45

Treaties and situations covered 33. On its face Article 30 applies to all treaties, whether bilateral or multilateral. It is another question whether all treaties can be adequately governed by Article 30. Some treaties lay down reciprocal rules and obligations that can be split into bilateral treaty relations, while other treaties embody obligations that are not bilateralizable. Just as States can derogate from customary rules by a treaty, unless those rules have a peremptory status, so it may be a parallel and related phenomenon that States can likewise derogate from conventional rules unless those rules have an indivisible object. 34. There are two types of treaty obligations which do not involve a mutual exchange of benefits and performances on a reciprocity basis. As Special Rapporteur Fitzmaurice explains, it is necessary, in the case of multilateral treaties, to distinguish between types of obligations—on the one hand those based on contractual reciprocity consisting of a reciprocal interchange between the Parties, each giving certain treatment to, and receiving it from, each of the others; or again, obligations of such a character that their performance by one Party is necessarily dependent on performance by all the Parties; and on the other hand, those which must be applied integrally or not at all.46 35. In terms of integral treaty obligations, humanitarian treaties protect not the interests of contracting States but the fundamental rights of individuals or groups. In the Advisory Opinion on Reservations, the International Court of Justice (ICJ) emphasized the special character of the 1948 Genocide Convention, stressing that: (p. 778) In such a convention the contracting States do not have any interests of their own; they merely have, one and all, a common interest, namely, the accomplishment of those high purposes which are the raison d'être of the convention. Consequently, in a convention of this type one cannot speak of individual advantages or disadvantages to States, or of the maintenance of a perfect contractual balance between rights and duties.47 The European Commission of Human Rights affirmed the similar character of the European Convention on Human Rights in Austria v Italy.48 In Ireland v UK, the European Court emphasized that: Unlike international treaties of the classic kind, the Convention comprises more than mere reciprocal engagements between contracting States. It creates, over and above a network of mutual, bilateral undertakings, objective obligations which, in the words of the Preamble, benefit from a ‘collective enforcement.’49

The Inter-American Court of Human Rights emphasized very much the same thing about human rights treaties in general, and the American Convention on Human Rights in particular, and stressed the similarity between regional human rights treaties and universal treaties such as the Genocide Convention.50 The view of the UN Human Rights Committee about the ICCPR is identical.51 Humanitarian law treaties are also designed to protect human beings qua human beings: Unlike other international norms, such as those of commercial treaties which can legitimately be based on the protection of reciprocal interests of States, compliance with humanitarian rules could not be made dependent on a reciprocal or corresponding performance of those obligations by States.52 Geneva Conventions embody not merely engagements concluded on a basis of reciprocity, binding each Party to the contract only in so far as the other Party observes its obligations. It is rather a series of unilateral engagements solely contracted before the world as represented by the other contracting Parties.53

References 36. The difference between objective treaty obligations and reciprocal obligations embodied in multilateral treaties (community interest versus individual State interests) is the same as the difference between jus cogens and jus dispositivum in general international law. This may be an indication that the objective character of such treaty obligations mirrors their place and status under general international law. There is indeed a broad doctrinal consensus that certain law-making treaties, such as treaties on genocide, slavery, forced labour, discrimination, and the 1949 Geneva Conventions, are declaratory of jus cogens, and their specific execution structure of objective or integral treaty obligations also resembles jus cogens: obligations assumed by each party operate identically between that party and all other parties. Such obligations cannot be bilateralized or fragmented.54(p. 779) The code of obligations in humanitarian treaties is ‘absolute and admits of no derogations’.55 The erga omnes aspect of integral treaties necessitates the interdiction of subsequent agreements which are incompatible with their object.56

References 37. Interdependent treaty obligations relate to fields such as disarmament or territorial status in a broad sense. In his Second and Third Reports, Fitzmaurice stressed that in disarmament treaties the obligation of each party depends on a corresponding performance by all parties. In the case of a fundamental breach by one party, the obligation of the other parties would not merely cease towards the particular party, but would be liable to cease altogether in respect of all the parties and a really fundamental breach would ensure the end of a treaty.57 It is clear that Fitzmaurice has allowed for reciprocity, not for a bilateralist reciprocity which could split treaty regimes into inter se relations, but for a kind of collective reciprocity, as the treaty obligations are not divisible, being assumed towards the totality of the parties. Fitzmaurice distinguished this case from humanitarian obligations, where the obligation of each party is altogether independent of performance by any of the others, and would continue for each party if defaults by others occurred.58 38. Interdependent obligations are not divisible but they are similar to ordinary bilateral obligations in that they cannot exist or survive a breach without the concordant will of States parties. The very grant of a given status to a territory specified in a treaty, or a given regime of armaments, is there because States parties have so agreed. In case of their breach the attitude of States parties or their collectivity is decisive for the continuation in force of treaties. 39. Derogation from interdependent treaty obligations is in principle possible, but must be authorized by all parties, because obligations are assumed towards all parties. For instance, if a given disarmament treaty prohibits possession of certain armaments above a certain quota, the parties may exempt a given State from that quota; although a treaty declares that a given territory should be demilitarized, States parties may nevertheless authorize a certain State to maintain troops there. This is so, because although the parties have wished a certain result in a treaty, they could have wished otherwise and this is permitted under international law. Parties may grant such exemptions either through a treaty, an additional protocol, or subsequent practice including waiver and acquiescence. They can in the case of violation agree on treating the derogatory agreement as devoid of force, (p. 780) or terminate the fallback treaty. The situation is radically different with treaties embodying objective obligations. States parties, even in their collectivity, cannot exempt any party from, for instance, the ICCPR or the Torture Convention in whatever form.

References 40. Whether a treaty lays down reciprocal obligations depends on what the obligations actually are, not on the subject matter of the treaty. The legal regime that governed the Kiel Canal under the Versailles Treaty could ultimately be governed by reciprocity because nothing could stand in the way of Germany and any other State adopting a derogating regime.59 Demilitarized zones regimes, such as the Aaland Islands regime,60 on the other hand, could not possibly be turned into a regime covering a bundle of reciprocal obligations, because the object is the demilitarization of the single territorial object. This object is indivisible. The same applies to the 1959 Antarctic Treaty, the 1968 Non-Proliferation Treaty, and to the peaceful use of the outer space, as regulated in the 1967 Outer Space Treaty and the 1979 Agreement

Governing the Activities of States on the Moon and Other Celestial Bodies. Such nonbilateralizable and indivisible character may accrue to a treaty object referring to either some space regime or restrictions on conduct. Needless to say, in order validly to impose interdependent obligations on States, the relevant treaty must either enjoy universal support, or relate to a subject matter which does not involve the encroachment on the rights on third States.

References

D. Individual aspects of interpretation Paragraph 1: the impact of the United Nations Charter 41. Paragraph 1 of Article 30 reflects the effect of Article 103 of the UN Charter which is superior to other international agreements.61 Consideration of the effect of Article 103 is necessary to enable Article 30 to have its proper effect, in the sense that the solutions under its paragraphs 2 to 4 should not be applied in situations engaging Article 103. Presumably, due to the effect of paragraph 1, a treaty conflicting with the Charter is not void, but merely inapplicable in the relevant cases to the extent that it conflicts with the Charter. On this issue, Fitzmaurice noted that Article 103 might oblige a Member State to break a treaty with a non-member (if that treaty should involve for the Member State obligations conflicting with its Charter obligations), yet it cannot release or absolve the Member State from liability in respect of those obligations. If no voluntary release from the obligations in question can be obtained, the Member State will by reason of Article 103 be forced to refuse to carry them out: but this will nonetheless be a breach of the earlier treaty, for which reparation in damages or otherwise will be due to the non-member.62 (p. 781) The impact of Article 103 involves three questions: (1) whether Article 103 confers normative primacy to the Charter of the United Nations only, or also to the binding decisions of the Security Council adopted on the basis of the Charter; (2) whether Article 103 applies only to those decisions of the Security Council which impose obligations on States (as Art. 103 itself refers to obligations), or also to those which grant authorization to undertake certain coercive actions; and (3) how far the impact of Article 103 goes once it is engaged, namely whether it refers to the primacy not only over treaties as follows from its wording, but also over customary law.

References 42. Article 103 relates to the obligations under the UN Charter,63 and it is doubted whether the Council's resolution is an obligation under the Charter, as it is not part of the Charter.64 On the other hand, a resolution could be a Charter obligation, as soon as its binding force derives from Article 25 of the Charter.65 But still, even if Article 103 is construed broadly as covering the effect not only of the Charter but also binding resolutions adopted pursuant to it, its effect would still be limited. The obligation to comply with the Council's resolutions is itself conditional upon the Council's compliance with the Charter's principles. As Jenks observes, ‘Article 103 cannot be invoked as giving the United Nations an overriding authority which would be inconsistent with the provisions of the Charter itself’. Nor can the UN rely on Article 103 to act unilaterally on the matters on which it is for member States to act through the amendment of the Charter.66 The wording of Article 25 indicates that the Council's power to adopt binding decisions is a delegated power and is also subject to the condition that resolutions comply with the Charter.

References 43. In the Al-Jedda case before the UK House of Lords the issue arose whether Article 103 applied only to mandatory decisions of the Security Council imposing obligations on States, or also to resolutions that grant authorizations. Al-Jedda was detained on 10 October 2004 in Baghdad on the ground that his internment was necessary for imperative security reasons, on the allegation of recruiting terrorists outside Iraq, and transferred to a British detention facility in Basra without charges having been brought against him. In June 2005, he began proceedings before the English courts and challenged his detention alleging the violation of the freedom from arbitrary detention under Article 5 of the European Convention on Human Rights and of Article 78 of the 1949 IV Geneva Convention, which deals with the right of the occupying power to detain individuals. Following the decisions of the lower courts, the House of Lords dismissed the appeal of Al-Jedda on the basis of the authorization to intern individuals in Iraq as stipulated in UN Security Council Resolution 1546 (2004).67

References 44. The question before the House of Lords turned on the relationship between Article 5(1) of the European Convention and Article 103 of the Charter. The central question to be resolved was whether, on the facts of this case, the UK became subject to an obligation (within the meaning of Art. 103) to detain the appellant and, if so, whether (p. 782) and to what extent such obligation displaced or qualified the appellant's rights under Article 5(1).68 The House of Lords held that even though the pertinent Council resolutions did not oblige but merely

authorized the detention of relevant individuals, this authorization was nevertheless backed by the effect of Article 103. The effectiveness of the UN collective security mechanism required that the measures authorized by the Security Council shall enjoy the same primacy to enable the Council properly to discharge its Chapter VII responsibilities.69

References 45. The Al-Jedda approach is presumably conducive for the overall effectiveness of the United Nations collective security system. But the other side of the problem is whether the Charter envisages Security Council authorizations that can prevail over other international agreements. The text of Article 103 does not indicate that and more is needed to justify the power that has not been stipulated expressly than just pointing to the factor of efficiency. It remains an open question whether the implied powers doctrine could have justified the House of Lords' approach.

References 46. A further issue relates to the conflict between the Charter, or decisions adopted on the basis of the Charter, and treaty provisions that embody customary international law. As the ICJ specified in the Nicaragua case, if a treaty rule and a customary rule have similar content, they still retain separate existence.70 Thus, Article 103 cannot prevail over a single rule embodied in two different sources of international law unless it possesses the capacity to prevail over both relevant sources. As is clear from the wording of Article 103, it is designed to prevail only over conventional rules,71 and not over general international law. Therefore, treaty rules that embody customary law are effectively immune from the impact of Article 103.

References 47. Then the relationship between Article 103 and jus cogens arises. The exemption from the scope of Article 30 of the conflict of a treaty with another treaty that embodies jus cogens goes hand in hand with the subjection of UN Security Council decisions, and of the impact of Article 103, to the overriding effect of jus cogens. Article 103 could never override the operation of norms that have peremptory status. As Judge Lauterpacht's Separate Opinion in the Bosnia case points out, even if the Charter prevails over other international agreements, the relief which Article 103 may give the Security Council in case of one of its decisions and an operative treaty obligation cannot—as a matter of simple hierarchy of norms—extend to a conflict between a Security Council resolution and jus cogens.72 Likewise, the International Law Association Reports on Accountability of International Organisations state that although Article 103 establishes the primacy of the Charter obligations, the member States cannot be required to breach peremptory norms of international law.73 No authority has ever contradicted this position, and the primacy (p. 783) of jus cogens over Article 103 of the UN Charter means that, for the purposes of Article 30(1), when a treaty is engaged by a Security Council resolution conflicting with jus cogens, the effect of that resolution will not be assisted by Article 30(1) in prevailing over the conflicting treaty.

References 48. It was held by the House of Lords in Al-Jedda that all conflicting treaty obligations were superseded by Security Council resolutions, and there was ‘no warrant for drawing any distinction save where an obligation is jus cogens’.74 But while the House of Lords acknowledged the principle that jus cogens trumps the conflicting resolutions of the Security Council, it did not proceed to examine whether the relevant rule on the prohibition of arbitrary deprivation of liberty is part of jus cogens. One may see the presumptive assumption in the judgment that this rule is not peremptory. But the House of Lords has neither analysed this issue nor confronted the pertinent evidence.75

References 49. The issue of primacy of the UN Charter and Security Council resolutions adopted pursuant to it over other treaties arose in the Kadi case before the EU courts, which involved the adoption by the EC Council of measures such as Common Position 1999/727/CFSP and Regulation No 377/2000 regarding the freezing of financial funds held abroad by the Taliban.76 These measures were adopted to implement UN Security Council Resolution 1267 (1999). The applicants challenged these measures and the Court of First Instance (CFI) reviewed these measures, and a fortiori Security Council resolutions, by reference to the jus cogens status of human rights that were involved, such as the rights to fair trial and property.

References 50. As the CFI has observed, member States are bound by Security Council resolutions.77 The Court emphasized that: unlike its Member States, the Community as such is not directly bound by the Charter of the United Nations and that it is not therefore required, as an obligation of general

public international law, to accept and carry out the decisions of the Security Council in accordance with Article 25 of that Charter. Nevertheless, ‘the Community must be considered to be bound by the obligations under the Charter of the United Nations in the same way as its Member States, by virtue of the Treaty establishing it’.78 European institutions are bound by UN sanctions precisely because the member States have accepted the prevailing legal force of those sanctions by virtue of Article 103 of the UN Charter and thus they cannot be considered as having delegated to European institutions the powers that would justify them acting in disregard (p. 784) of UN sanctions. The reason why the European institutions can refuse to comply with Security Council resolutions can never be provided from within the legal framework of the European Union, but can only be found in the limits governing the use of the powers delegated to the Security Council. Indeed, unless the relevant Security Council resolution falls outside the powers of the Security Council for its violation of the Charter or of jus cogens, the European institutions have to follow it, in order to avoid putting the member States in breach of their higher ranking obligations. The only way Security Council resolutions can be reviewed by EU courts is on the basis of international law from which EU law derives its validity, and more specifically only through the use of jus cogens which is the only legal standard applicable both to the UN and the EU. Any other perspective would be based on viewing the powers of the European institutions as operating in isolation from the rest of international law and deriving them from a Grundnorm that does not exist in reality.

References 51. The appeal decision of the European Court of Justice (ECJ) in the Kadi case has annulled the contested regulation,79 contrary to calls that deference to UN sanctions would have been a wiser course of action. The Court referred to the principle of autonomy of the Community legal order to review the contested regulation in terms of its compliance with the Community fundamental human rights. The involvement of Security Council resolutions and Article 103 had no immediate relevance. The Court went on to emphasize that where a Community act is intended to give effect to a Security Council, it is not for the Community judicature to review its lawfulness, even if that review were to be limited to examination of the compatibility of that resolution with jus cogens. However, any judgment given by the Community judicature deciding that a Community measure intended to give effect to such a resolution is contrary to a higher rule of law in the Community legal order would not entail any challenge to the primacy of that resolution in international law.80

References 52. Thus, in the ECJ decision in Kadi, international law as a whole is denied a direct relevance in determining whether Security Council sanctions, transformed into the EC legislation, can prevail over human rights. The ECJ decision disregards the relevance of Article 103—not even mentioning this provision in its reasoning—whereby it effectively attempts to exempt the European institutions from an obligation to comply with UN sanctions under Chapter VII of the UN Charter. The ECJ approach is inevitably premised on deriving the validity of the EU legal system from a projected Community-inherent, and in reality non-existent, Grundnorm, as opposed to international law.

References 53. Against this background, the ECJ approach approves reviewing a Community act giving effect to a Security Council resolution as soon as it conflicts with higher principles of Community law, and no matter whether the resolution complies with the limits on the Security Council's powers. Under this approach, even a perfectly lawful Security Council resolution may be unenforceable within the Community legal system on the ground that it conflicts with ‘higher’ Community law. 54. This raises deeper questions—unaddressed in the ECJ judgment—of the relationship between the EC Treaty and UN Charter, namely in terms of potential (p. 785) incompatibility between Article 103 of the Charter and Article 307 of the EC Treaty.81 On their face, both these provisions are straightforward in pronouncing the primacy of the treaties they belong to over other treaties, and neither of them contains a clause deferring to the other. This dilemma has not been addressed in the Kadi judgment of the ECJ. The ECJ ruled that Article 307 cannot authorize any derogation from the principles of liberty, democracy, and respect for human rights and fundamental freedoms enshrined in Article 6(1) of the EC Treaty as a foundation of the Union,82 but did not specify the normative basis of this conclusion. The Court's treatment of Article 307 in the judgment is brief and perfunctory, and conveys little about what aspect of this provision the Court had in mind. Given the CFI's treatment of the UN Charter including its Article 103, it might be assumed the ECJ's focus was on the relevance of the Charter as a pre1958 agreement, and thus it implicitly pronounced that the acts adopted on the basis of the Charter do not prejudice the EU fundamental rights, whatever the impact of Article 103.

References 55. The relationship between the two treaties is crucial for the extent to which the ECJ can review Security Council resolutions. If the UN Charter prevails over the EC Treaty, then Security Council resolutions cannot be reviewed on any legal basis apart from the pertinent

resolution's compliance with the conditions of legality of those resolutions. If, arguendo, the EC Treaty takes priority in casu, then the EC judicature is entitled to review Security Council resolutions, directly or indirectly, on the basis of their compliance with EC law and without decisive regard to the conditions of legality of those resolutions outside the EC legal framework.

References 56. The ECJ decision could be defensible on the narrow reading of Article 30, especially its paragraph 3 or 4, but Article 30(1) preserves the position of Article 103 of the Charter. Article 30(1) can provide interpretive guidance in resolving a potential incompatibility between Article 103 of the Charter and Article 307 of the EC Treaty, and support the position under which the EC organs have to follow valid UN Security Council resolutions as deriving from higher law binding member States. The Kadi appeal decision produces a systemic problem of the duality of the legal regime governing the rights and obligations of the EU member States under the EC Treaty and under the UN Charter. The ECJ decision will have little effect on the normative force of Security Council resolutions which States are bound to implement due to Articles 25 and 103 of the UN Charter, but which cannot now be enforced within the EU legal system. On the other hand, the CFI decision giving proper effect to the UN Charter, yet emphasizing the jus cogens limits on Security Council powers and then verifying whether the relevant human rights were actually violated is more balanced and emphasizes that the source of validity of the EU legal regime lies in international law. This approach would have been the only means of avoiding the duality of legal positions.

References

Paragraph 2: subordination of one treaty to another 57. The wording in paragraph 2 that ‘[w]hen a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or later treaty, the provisions of that other treaty prevail’ not only states the obvious but also, similar to paragraph 1, defers to particular stipulations for the relevant solution of situations involving a conflict between treaties. It also inherently implies the validity of the opposite rule under which (p. 786) States can proclaim the relevant treaty as prevailing over other, successive, treaties. Paragraph 2 is thus a ‘conflict rule’. In order to avoid normative controversies, States often insert in treaties priority clauses to determine which treaty applies in which circumstances, and how far one treaty is supposed to prejudice the applicability of another, or defer to it. If such clauses are not inserted, then the later treaty is supposed to prevail over the earlier one. At the same time, the existence of such conflict clauses should not be inferred unless the text of the relevant treaty clearly points to that. To illustrate this, in the Mexico-Taxes on Soft Drinks case before the World Trade Organization (WTO) Appellate Body, a central issue raised in the appeal was whether the terms ‘to secure compliance with laws or regulations’ in Article XX(d) of the GATT 1994 encompassed WTO-inconsistent measures applied by a WTO member to secure compliance with another WTO member's obligations under an international agreement such as the North American Free Trade Agreement.83 The Appellate Body specified that the terms ‘laws and regulations’ referred to domestic legislative or administrative rules. Sometimes those ‘laws and regulations’ ‘may be intended to implement an international agreement. In such situations, the origin of the rule is international, but the implementing instrument is a domestic law or regulation’. This category does ‘not include obligations of another WTO Member under an international Agreement’.84

References 58. Determination of which treaty is earlier or later is not an easy process. It is suggested that this has to be determined in terms of the dates when the relevant treaties were concluded. The dates of actual conclusion of a treaty, adoption of a multilateral treaty, or the entry into force are considered in this context.85 But given the way Article 2(1)(g) of the Vienna Convention defines a ‘party’ to a treaty, the point of determining which treaty is earlier or later should relate to the entry into force of a particular treaty.86 As Vierdag further observes, the time of conclusion of treaties is significant only if both treaties are of similar rank. If not, as could be the case in situations involving human rights treaties, the time of conclusion of the treaty is of no significance under Article 30.87 Hierarchic relationships may exist, according to Jenks, between the charter of an international organization and other instruments adopted within that organization.88 But this is not an inherent outcome unless the relevant treaty includes a specific clause as to which treaty ought to prevail, and the intention of States may point to a different outcome. 59. As the ILC Final Report on the Law of Treaties specifies in relation to treaty clauses asserting the primacy of the treaty in question over other treaties: The chief legal relevance of a clause asserting the priority of a treaty over subsequent treaties which conflict with it therefore appears to be in making explicit the intention of the Parties to create a single ‘integral’ or ‘interdependent’ treaty regime not open to any contracting out; in short, by expressly forbidding contracting out, the clause [now Article 30(2)] predicates in unambiguous terms the incompatibility with the treaty of any subsequent agreement concluded by a Party which derogates from the provisions of the treaty.89 (p. 787) There are multiple examples of how the authors of a treaty stipulate the primacy of

the relevant treaty or manifest their intention not to prejudice the operation of other treaties or of general international law. 60. The 1982 UN Convention on the Law of the Sea (UNCLOS) contains a complex set of rules under Article 311 to determine in which cases the Convention prevails over other treaties and in which cases it defers to other treaties. As specified in paragraphs 2 and 3, UNCLOS is essentially an arrangement of bundles of bilateral treaty obligations between States from which States parties are in principle free to contract out inter se, provided that they do not jeopardize the general rationale of the Convention. In a more specific way, as paragraph 6 demonstrates, the Convention protects from inter se derogations the principle of the common heritage of mankind.90

References 61. An interesting example of the application of the principle enshrined in Article 30(2) is offered by Article 307 of the EC Treaty, which specifies that: the rights and obligations arising from agreements concluded before 1 January 1958 or, for acceding States, before the date of their accession, between one or more Member States on the one hand, and one or more third countries on the other, shall not be affected by the provisions of this Treaty. Article 307 nevertheless also specifies that ‘[t]o the extent that such agreements are not compatible with this Treaty, the Member State or States concerned shall take all appropriate steps to eliminate the incompatibilities established’, but falls short of determining what those ‘appropriate steps may be’. The next clause in Article 307 provides that: In applying the agreements referred to in the first paragraph, Member States shall take into account the fact that the advantages accorded under this Treaty by each Member State form an integral part of the establishment of the Community and are thereby inseparably linked with the creation of common institutions, the conferring of powers upon them and the granting of the same advantages by all the other Member States. Thus, while on the one hand Article 307 provides that the treaties concluded before 1958 are not affected, in subsequent paragraphs it still calls for eliminating incompatibilities by (p. 788) reference to the allegedly integral character of the EC legal regime, which may effectively be seen as actually proclaiming the primacy of the EC Treaty over pre-1958 agreements of member States.91

References 62. The 1949 North Atlantic Treaty proclaims its subordination to the UN Charter and to the primary responsibility of the UN Security Council in the matters of peace and security (Art. 7) and also obliges member States ‘not to enter into any international engagement in conflict with this Treaty’ (Art. 8). The African Union Constitutive Act proclaims its primacy over conflicting treaties. According to Article 33(2) of the Act: ‘[t]he provisions of the Act shall take precedence over and supersede any inconsistent or contrary provisions of the Treaty establishing the African Economic Community’. Article 17 of the 2005 African Union Common Defence and Security Pact specifies that: a) This Pact shall not derogate from, and shall not be interpreted as derogating in any way from the obligations of Member States contained in the United Nations Charter and the Constitutive Act, including the Protocol, and from the primary responsibility of the United Nations Security Council for the maintenance of international peace and security. b) This Pact shall not derogate from, and shall not be interpreted as derogating in any way whatsoever, from the rights of refugees guaranteed by the relevant continental and international instruments. In a similar spirit, Article 20(1) of the Economic Community of West African States (ECOWAS) Protocol on Mutual Assistance on Defence concluded on 29 May 1981 specifies that: Undertakings devolving from the provisions of this Protocol shall not be interpreted as being against the spirit of Conventions or Agreements binding one Member State to another third State or States, provided such Conventions and Agreements are not in conflict with the spirit of this Defence Assistance. Still, to keep up with the spirit of the ECOWAS collective security arrangements, the second paragraph of the same Article proclaims that: a Defence Agreement concluded with some other State shall be denounced by the Member State concerned as soon as such other State shall have been identified by the Authority as an aggressor against a Member State.92

References 63. Article 53 of the ECOWAS Protocol Relating to the Mechanism for Conflict Prevention, Management, Resolution, Peace-keeping and Security, adopted at Lomé on 10 December 1999, exemplifies how one treaty regime can be replaced by another, and even voidness of the

conflicting treaty regime can be contemplated. The Protocol specifies that: The provisions of this Protocol shall replace all the provisions of the ECOWAS Protocol relating to Mutual Assistance in Defence signed on 29 May 1981, which are in conflict with the spirit of this Protocol. The provisions of the Protocol on Non-Aggression signed on 22 April, 1978, which are incompatible with those of the present Protocol are hereby declared null and void. Undertakings devolving from the provisions of this Protocol shall not be interpreted as being against the spirit of Conventions or Agreements between one Member State and a third State; provided such (p. 789) Conventions and Agreements are consistent with the spirit of this Protocol, otherwise, such provisions are null and void. 64. A further requirement for the operability of the rule enshrined in paragraph 2 is that when a treaty defers to a conflicting agreement subject to a certain condition, such as respect for the object and purpose of the first treaty, that agreement can apply only subject to compliance with that condition. The applicability of Article 98(2) agreements provided for in the Statute of the International Criminal Court (ICC) is an example of this category.93

References

Paragraph 3: successive treaties between the same parties 65. This provision regulates the conflict between treaties concluded between the same parties in cases where ‘the earlier treaty is not terminated or suspended in operation under Article 59’. This situation differs from the implicit termination of treaties in which case the treaty as an instrument is terminated. In the case of Article 30 the priority of application is determined to the extent of normative conflict, the operation of each of the two treaties being preserved. 66. In practice the application of Article 30(3) has most importantly been engaged in the context of judicial settlement of disputes, in cases where it is asserted that the relevant dispute falls within the jurisdiction of two international tribunals, for which reason one of them must decline jurisdiction. Given that jurisdictional instruments essentially constitute treaty relations,94 the suggestion of Lowe that the question of jurisdiction can be approached through the law of treaties ought to be accepted.95

References 67. As Lowe observes, an international tribunal should, at the request of a party or proprio motu, satisfy itself whether the jurisdiction conferred on it has been modified by another treaty that confers jurisdiction on another tribunal. This would in principle be required to comply with Article 30 of the Vienna Convention. But in practice this is unlikely, because ‘provisions conferring jurisdiction upon a number of separate tribunals can co-exist without incompatibility, unless one or more of the provisions confers, or purports to confer, exclusive jurisdiction upon one or another tribunal’.96 This is in accordance with the principle that normative conflict between treaties can exist only when one treaty contains a clause that impedes the operation of another treaty. 68. Considerations guiding the establishment of whether there is a normative conflict produced by the multiple titles of judicial jurisdiction go hand in hand with the tribunals' duty to do justice to cases submitted to them.97 The PCIJ in the Chorzow case had to deal (p. 790) with the implications of Article 305 of the 1919 Versailles Treaty which was meant ‘to secure to interested Parties the possibility of having recourse to the [German-Polish] Mixed Arbitral Tribunal’. The Court specified that: Whatever construction in other respects the Mixed Arbitral Tribunals have placed or may place upon this article, with which construction the Court wishes in no way to interfere, the Court, when it has to define its jurisdiction in relation to that of another tribunal, cannot allow its own competency to give way unless confronted with a clause which it considers sufficiently clear to prevent the possibility of a negative conflict of jurisdiction involving the danger of a denial of justice. The Court does not consider that, in regard to the applicability of Article 305 to the situation of the Oberschlesische, all possible doubt is eliminated; it would observe, however, that it is not called upon to decide this point.98 Thus, the Court would guard its consensually conferred jurisdiction even without conclusively establishing what the implications of establishing the jurisdiction of another tribunal might have been. Presumptions of this kind are generally conducive to the presumption of the absence of normative conflict and militate against declining jurisdiction unless the textual evidence is adduced to prove that that jurisdiction has been consensually—and exclusively— delegated to another international tribunal. The fact that another tribunal may also, in the first tribunal's view, have jurisdiction over the dispute should not prompt the first tribunal's deferral either, because the second tribunal would still be the ultimate judge of its jurisdiction and could reach an outcome that differs from the conclusion of the first tribunal. More broadly, judicial practice, whatever the outcome, is in accordance with the understanding that competing jurisdictions of international tribunals should be clarified by reference to the principles of interpretation and application of treaties as enshrined in the 1969 Vienna Convention.

References

69. The issue of alleged conflict between treaty jurisdictional clauses arose in the Electricity Company case before the Permanent Court. In this case, in order to found the jurisdiction of the Court, the Belgian government relied on the Declarations of Belgium and Bulgaria accepting the compulsory jurisdiction of the Court, and also on the Treaty of conciliation, arbitration and judicial settlement of 23 June 1931, which came into force on 4 February 1933. The Bulgarian government for its part also relied on both of those agreements to support its preliminary objection to the jurisdiction. The Belgian government considered that ‘the Treaty was only to be regarded as having suspended the optional clause in so far as it modified that clause’. Bulgaria responded that ‘far from tacitly abrogating, or at any rate suspending the operation of the optional clause for the duration of the Treaty, the two paragraphs of Article 4 simply reinforce and do not set aside the obligation resulting from the optional clause’.99 The Court concluded that: the multiplicity of agreements concluded accepting the compulsory jurisdiction is evidence that the contracting Parties intended to open up new ways of access to the Court rather than to close old ways or to allow them to cancel each other out with the ultimate result that no jurisdiction would remain. In concluding the Treaty of conciliation, arbitration and judicial settlement, the object of Belgium and Bulgaria was to institute a very complete system of mutual obligations with a view to the pacific settlement of any disputes which might arise between them. There is, however, (p. 791) no justification for holding that in so doing they intended to weaken the obligations which they had previously entered into with a similar purpose, and especially where such obligations were more extensive than those ensuing from the Treaty. It followed that ‘the Treaty cannot be adduced to prevent those declarations from exercising their effects and disputes from being thus submitted to the Court’.100 The Court found that the Belgian application was not submitted in accordance with the conditions laid down under the 1931 Treaty and then went on to examine jurisdiction under Declarations. The Court declined jurisdiction because the Belgian government could not prove the existence of the dispute that qualified to trigger its jurisdiction, but affirmed that more than one jurisdictional instrument could simultaneously confer jurisdiction to it over a single dispute.101

References 70. The existence of two different jurisdictional titles does not by itself entail that one of them should be seen as cancelled out as an incidence of normative conflict. Only where one of these clauses impedes the operation of another one can a normative conflict arise. Otherwise, both clauses could coexist and States continue enjoying their freedom to choose to which tribunal they refer their cases. Only after the normative conflict arises in the genuine sense, will conflict principles such as lex posterior or lex specialis become relevant.

Paragraph 4: non-identity of parties to successive treaties 71. A question of principle raised by Article 30(4) of the Vienna Convention is whether a State party to two treaties has the capacity to conclude the second treaty. Special Rapporteur Lauterpacht, who conceived this issue as one of the validity of treaties, objected to such treatymaking capacity, while McNair expressed the opposite view;102 and the Harvard draft adopted a similar position, with the qualification that the earlier treaty enjoyed priority. Given that the intention of the drafters of the Vienna Convention was not to authorize breaching a treaty through the conclusion of a conflicting treaty, it has to be examined to what extent Article 30(4) corresponds to this goal and in which way it could be construed to that end. The principal issue is how one determines which of the conflicting treaties prevails, and whether it is up to the pertinent contracting party to decide which treaty it will implement. 72. As the ILC Final Report specifies, ‘the rule in Article 30 precludes the Parties to the later treaty from depriving the other Parties to the earlier treaty of their rights under that treaty without their consent’.103 This principle has implications where, for instance, States A and B are parties to one treaty and State B then concludes a conflicting treaty with State C. If the second (B-C) treaty is given legal effect where the subject matter of the treaty between A and B is non-derogable, then States B and C can effectively bind State A and modify its rights and obligations, which would go against the pacta tertiis rule. 73. A number of questions arise in this respect: what is the relevance of the will and attitude of States with which mutually conflicting treaties have been concluded? How far can their attitudes matter in determining which treaty will be implemented and which State will get remedies under the law of State responsibility? What should happen if both insist that their treaties should continue in force? This is a question not only of the lack (p. 792) of a designated authority that would pronounce on this question, but also of the lack, under Article 30, of standards by reference to which such pronouncement should be made. The ILC's rejection of nullity of conflicting treaties only means that the second treaty is not automatically void. There is room in such contexts for all States to come to a settlement, to the extent the subject matter of the treaty allows. But the insistence of State A on its treaty with State B could effectively bring about a situation that would be practically indistinguishable from the invalidity of the treaty between States B and C. Otherwise, the validity of the treaty between States A and B would be optional to and conditional upon what is done as between States B and C. 74. While the early PCIJ cases were referred to in the ILC's codification process on what is now Article 30, it is not clear at all whether Article 30, which is a provision of substantive law, lays down principles following from those cases resolved in procedural terms. It may be a

paradox that Article 30, if the ILC's approach is accepted, does not contain any specific regulation for interdependent and integral treaties. But then the relevant early cases (Honduras-Nicaragua and Oscar Chinn) related to territorial regimes. This may militate in favour of assuming that in order to trigger a conflict under Article 30(4)(b), a treaty has to have an indivisible object. Presumably treaties containing bundles of bilateral treaty obligations cannot conflict with each other because they are separable into bilateral treaty relations anyway. If so, then Article 30(4) is just restating the obvious, and its application cannot involve any breach of international law. But still, this clause, together with Article 30(5), refers to situations where entering into one treaty results in the breach of another treaty and thus into international responsibility. Consequently, from this perspective, Article 30(4) should be seen as referring to treaty obligations that cannot be split into bilateral treaty relations. But two treaties cannot regulate an indivisible object in more than one way. It could then be argued that Article 30(4)(b) refers to reciprocal treaties that could be split bilaterally; and Article 30(5) refers to responsibility for the breach of those treaties the obligations of which cannot be split bilaterally and reciprocally. Even in the case of conflict between two treaties with bilaterally divisible objects, where all the parties fail to come to a mutually acceptable settlement, one is compelled to suspect that the treaty concluded earlier should be given some primacy: Article 30(5) speaks of responsibility arising ‘from the conclusion or application of a treaty, the provisions of which are incompatible with its obligations towards another State under another treaty’. The conclusion of a treaty can be wrongful only if the other treaty concluded before it prevails.

References 75. Article 30(4)(a) effectively restates the implications of Article 30(3), and the same principle operates as a matter of lex specialis, the latter treaty applying in relation to reciprocal treaty relations of the narrower group of States. Article 30(4)(b), which is meant to apply both to bilateral and multilateral treaties,104 does not allocate priority to either previous or subsequent treaties. If these rules were given absolute effect, then any bilateral treaty could validly derogate from treaties such as the Genocide Convention, the 1949 Geneva Conventions, or human rights covenants. The principle of parallel validity of two conflicting treaties cannot apply to cases where one of these two treaties embodies interdependent or integral obligations, and the other treaty impedes the operation of those non-reciprocal obligations. In other words, the solutions under Article 30(4) are not suitable where two treaties are in genuine normative conflict which cannot be resolved by allocating different sets of treaty obligations to different groups of States.

References (p. 793) 76. If one of the conflicting treaties under Article 30(4) constitutes a breach of international law, then the second treaty is naturally breached and the regime of treaty termination in consequence of a material breach is raised.105 But if one of the conflicting treaties, whether the earlier or the later one, is a humanitarian treaty, then it cannot be terminated, given the restriction under Article 60(5) of the Vienna Convention, and will continue its operation on mandatory terms, in the sense that its continuous applicability will be beyond what the pertinent States parties can lawfully agree in a bilateral context. This situation will require that a treaty which conflicts with a treaty of humanitarian character has to be seen as having no effect and being unenforceable, whether or not the invalidity on formal terms can be envisaged, because such treaties cannot reciprocally be terminated, nor can their breaches be excused on a bilateral basis. The inescapable conclusion follows that the regulation under Article 30(4) with its allocation of treaty rights and obligations on a bilateral basis cannot be applied to the conflicts between treaties where one of the treaties is of humanitarian character and embodies integral obligations. As for the treaties embodying interdependent obligations, such as those relating to territorial and disarmament regimes, Article 30(4) cannot resolve such controversies on substantive terms either, but ultimately, due to the combined relevance of Article 30(4) and (5), some reciprocal settlement, or even the collective reciprocal termination of such treaties, can be envisaged. But again, if such reciprocal settlement or termination does not take place, the solutions under Article 30(4) cannot resolve, on substantive terms, the controversies involving interdependent treaties. 77. All this is in accordance with the principle that treaties are different in their character and there seems to be no way around that. Judicial practice relating to the conflict between treaties, one of which is a human rights treaty, confirms that a neutral application of a lex specialis or lex posterior principle is not always permissible, and that the humanitarian nature of the relevant treaty matters in determining which treaty between the two assumes priority. 78. Practice has formulated an approach implicitly based on hierarchical priority of human rights and humanitarian treaties over other conflicting treaties. As the UN Human Rights Committee observed with regard to the ICCPR, ‘States Parties to the Covenant will often also be Party to various bilateral obligations, including those under extradition treaties. A State Party to the Covenant is required to ensure that it carries out all its other legal commitments in a manner consistent with the Covenant’, with a view to securing the rights enshrined in the Covenant to all persons within its jurisdiction.106

References 79. The organs of the European Convention on Human Rights affirmed that the Convention prevails over other treaties because its obligations are peremptory. The European Commission emphasized that the States parties to the European Convention are responsible for all acts

violating the Convention ‘regardless of whether the act or (p. 794) omission in question is a consequence of domestic law or of the necessity to comply with other international obligations’. It further stressed that: if a State contracts treaty obligations and subsequently concluded another international agreement which disables it from performing of its obligations under the first treaty it will be answerable for any resulting breach of its obligations under the earlier treaty.…Otherwise the guarantees of the Convention could be wantonly limited or excluded and thus be deprived of their peremptory character.107 Likewise, the European Court affirmed that the object and purpose of human rights treaties requires that the obligations under these treaties are not affected by the content of treaties under which powers are delegated to international organizations: Where States establish international organisations in order to pursue or strengthen their cooperation in certain fields of activities, and where they attribute to these organisations certain competences and accord them immunities, there may be implications as to the protection of fundamental rights. It would be incompatible with the purpose and object of the Convention, however, if the Contracting States were thereby absolved from their responsibility under the Convention in relation to the field of activity covered by such attribution.108 In Matthews, the European Court of Human Rights considered that the Treaty on European Union and the acts of EU organs are subject to scrutiny in terms of their compatibility with the European Convention on Human Rights.109 The European Court affirmed an identical principle in the Bosphorus case, pointing out that State action taken in compliance with the legal obligations assumed within the framework of the relevant international organization, in this case the European Union, ‘is justified as long as the relevant organisation is considered to protect fundamental rights’. In such case ‘the presumption will be that a State has not departed from the requirements of the Convention when it does no more than implement legal obligations flowing from its membership of the organisation’. Otherwise, the interest of international cooperation would be outweighed by the Convention's public order character.110 Judge Ress further clarified this principle in the same case, by pointing out that: The importance of international cooperation and the need to secure the proper functioning of international organisations cannot justify Contracting Parties creating and entering into international organisations which are not in conformity with the Convention.111

References 80. In the Soering case the European Court faced the plea that the refusal to extradite the applicant to the United States due to the possibility of violation of Article 3 of the European Convention after the extradition would raise problems in terms of compliance of the respondent State with its extradition treaty with the United States. The Court upheld the primacy of Article 3 which required not to extradite the applicant, and the (p. 795) engagement of the extradition treaty did not make any difference.112Soering is the classic case where the European Convention was considered inherently superior to the bilateral extradition treaty and the latter was deemed simply irrelevant to the extent that it required conduct incompatible with the Convention.

References 81. The European Court also determined in Capital Bank v Bulgaria that compliance with other international obligations does not justify restricting the Convention guarantees. The case involved the Bulgarian National Bank's decision to declare the applicant bank insolvent and revoke its licence. It was questioned whether Article 6 of the European Convention was violated by the lack of possibility of judicial review of this decision due to the Banks Act of 1997 that excluded decisions by the BNB to revoke a bank's licence from the scope of judicial review. The government's contention was that the prohibition of judicial review of the BNB's decision to revoke a bank's licence was permissible because it was introduced at the demand of the International Monetary Fund and was enshrined in an agreement with it. As the Court put it, ‘[i]t appears to have been the view of the IMF's mission in Bulgaria that the protracted process of judicial review of the BNB's decisions and their possible invalidation would not be consistent with the effective process of banking supervision’. The Court noted ‘that the Government have not produced before the Court any specific agreement or other documentary evidence to show that the Fund expressly imposed such a requirement’ and was ‘not satisfied that the limitation on the applicant bank's access to a court was indeed imposed pursuant to any binding international obligations undertaken by Bulgaria’. Still, the Court concluded that: even assuming that it was, that fact cannot necessarily justify the limitation. The Contracting States' responsibility continues even after they assume international obligations subsequent to the entry into force of the Convention or its Protocols. It would be incompatible with the object and purpose of the Convention if the Contracting States, by assuming such obligations, were automatically absolved from their responsibility under the Convention.113 Thus, the Court ruled that the fair trial guarantees under Article 6(1) were violated. The importance the Court attaches to the primacy of the Convention over other treaties is demonstrated by the fact that the Court did not stop at the point of declaring that the

conflicting agreement did not exist in this case, but pronounced upon the primacy of the Convention in relation to possible cases in which such conflicting agreement may exist.

References 82. Similarly, the Dutch Supreme Court confirmed that the duty to observe the European Convention on Human Rights prevails over the duty to observe the extradition clauses in the NATO Status of Forces Agreement (SOFA).114 This practice supports Kolb's argument that the erga omnes aspect of integral treaties necessitates the interdiction of subsequent incompatible agreements which are incompatible with their object.115 This (p. 796) does not fit within the regime of application of conflicting treaties in terms of Article 30(4) of the Vienna Convention, as it assumes that one treaty applies despite the requirements of another. Presumably this concerns the superior, or objective, non-derogable and non-bilateralizable character of humanitarian or human rights treaties, which share the nature of jus cogens as being protective of the interests of the community rather than individual States.

References 83. After the adoption of the Statute of the ICC at the 1998 Rome Conference, the United States, which refused to become party to it, proceeded to conclude agreements with States parties to the Statute under its Article 98(2). According to this provision: The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender. Thus, the United States negotiated with and obtained from dozens of States agreements exempting its personnel from transfer to the ICC.

References 84. In principle, Article 98(2) seems to be just an ordinary exception from the Court's jurisdiction, which States parties were presumably entitled to agree upon. But the matter transcends the mere textual aspects of the Statute and engages its object and purpose, which above all relates to combating the impunity of the perpetrators of serious crimes under international law. This position is reflected in the EU's position on this matter that: any solution should include appropriate operative provisions ensuring that persons who have committed crimes falling within the jurisdiction of the Court do not enjoy impunity. Such provisions should ensure appropriate investigation and—where there is sufficient evidence—prosecution by national jurisdictions concerning persons requested by the ICC.116 An expert opinion on this matter follows the EU position and points out that the object and purpose of the Statute is to prevent impunity for international crimes, which is to be achieved through the mechanism of complementarity that allocates criminal jurisdiction between States parties and the Court. Thus: The object and purpose of the Rome Statute implies that where a person alleged to have committed an ICC crime is on the territory of a State Party to the Rome Statute, that person should not be transferred to a third State unless guarantees are put in place to ensure that such person is investigated or prosecuted in accordance with the criminal jurisdiction of the third State. If a State Party, in such circumstances, has reason to believe that a third State is not willing or is genuinely unable to so investigate or prosecute then the person concerned should not be transferred to the third State. Any new agreement should therefore make clear provision to ensure that the ‘sending’ State subjects the person to effective investigation and, where warranted, prosecution. Additionally, any new agreement ought also to make provision for the re-transfer to the repatriating State of any person who is not subject to effective investigation or prosecution in a third State.117 (p. 797) The opinion continues that if an agreement under Article 98(2) does not include the safeguard of effective prosecution, under Article 30(4) the new agreement would govern the mutual rights and obligations of its parties, subject to the caveat of responsibility under Article 30(5). But apart from the interstate perspective, this question also has an institutional dimension, because in case of non-compliance with the Article 98(2) agreement where the State party has reasons to consider that effective prosecution will not be carried out, the Court would be in position to assume jurisdiction over the person thus surrendered, which would further be in accordance with what would be expected from that State party in terms of its responsibility under international law.

References 85. According to another Commentary, the Article 98(2) agreements are incompatible with the ICC Statute, and the post-ICC Statute agreements with the US should specifically provide for the US obligation to prosecute the relevant individuals.118 As further emphasized:

No State Party to the Rome Statute would be expected to negotiate an agreement with another government that would facilitate a suspect's impunity from all forums of justice for the atrocity crimes that the ICC is designed to investigate and prosecute.… Article 98 sets forth the exceptions to the rule of surrender but it does not seek to deny the Rome Statute's core purpose of fighting impunity.119 These considerations should be enough to conclude that the ICC Statute and an Article 98(2) agreement that does not correspond to the object and purpose of the Statute cannot be considered on an equal footing as treaties that apply in parallel, and the likelihood that the ICC would treat them as such is small indeed. The position here would be essentially the same as that with the primacy of human rights treaties over conflicting agreements.

References 86. The parallel applicability of human rights and humanitarian law instruments could not as such trigger a normative conflict and engage Article 30(4). Jenks considers that instruments applying in wartime can be leges speciales in relation to those applying to peacetime.120 But in practice this approach is not unconditionally accepted. As the ICJ emphasized in the cases of the Construction of the Wall in the Occupied Palestinian Territory and DRC v Uganda, human rights treaties continue to apply in wartime. They apply together with humanitarian law.121

References 87. It has to be concluded that the applicability of Article 30(4) to all treaties across the board cannot be workable in axiomatic terms. The relevance of Article 30(4) in individual cases depends on two conditions: two treaties involved in the same situation should be in a genuine normative conflict; and none of those treaties should possess an indivisible object. Jenks further refers to the principle of autonomous operation under which each institution would be bound by its own constituent instrument in the first place. The autonomous operation principle is limited by the hierarchic principle.122 This is what (p. 798) ought to have been considered by the European Court of Justice in Kadi, which seems to have assumed that the EU legal framework enjoys autonomy from international law. On the other hand, the decisions of the European Court of Human Rights on the primacy of the European Convention over other treaties do not follow from the perception of autonomy, but rather from the primacy of the European Convention as an instrument embodying obligations that cannot be split into reciprocal and bilateral relations.

References

Paragraph 5: responsibility for the conclusion of incompatible treaties 88. This paragraph specifies that the regime governing the relative priority of treaties shall not affect the regime of inter se modification of treaties under Article 41 and that of termination of treaties under Article 60 of the Convention. Such deferral does not prejudice the applicability or primacy of non-reciprocal treaties, because the position of interdependent and integral treaties, namely their exemption from reciprocal deviation whether through an inter se modification or termination, is preserved under Articles 41(1)(c), 60(2), and 60(5). 89. Paragraph 5 likewise refers to responsibility of the State which enters into an agreement incompatible with an earlier agreement. As the ILC pointed out: If the conclusion or application of the treaty constitutes an infringement of the rights of Parties to another treaty, all the normal consequences of the breach of a treaty follow with respect to that other treaty. The injured Party may invoke its right to terminate or suspend the operation of the treaty under Article 57 [of the final draft, now Art. 59 of the Vienna Convention] and it may equally invoke the international responsibility of the Party which has infringed its rights. Paragraph 5 accordingly makes an express reservation with respect to both these matters.123 90. A significant question is whether responsibility ensues from the conclusion of the incompatible treaty, its entry into force, or its implementation on the ground. If the conclusion of the second treaty is the key element, then the State could be held responsible before the treaty enters into force, and probably even if the treaty does not eventually enter into force and acquire binding force. But it is sounder to presuppose that unless and until both treaties, and in particular the second treaty, are in force, the question of responsibility cannot be raised. However, the conclusion of the first treaty that has not yet entered into force cannot be completely without consequences either, in terms of the legality of the second treaty. If the treaty is concluded but not yet in force, Article 18 of the Vienna Convention would apply and bar the conclusion of a subsequent treaty that would contradict the object and purpose of the first treaty. 91. The lack of specification in Article 30(4)(b) of the priority between treaties has implications for the application of Article 30(5). These provisions give no primacy to either the earlier or the later treaty. This is somehow confusing because before responsibility is dealt with, one has to ascertain responsibility for the conclusion of which treaty is concerned. Without pronouncing on this, paragraph 5 is nevertheless premised on the wrongfulness of one of the conflicting treaties. 92. In more substantial terms, responsibility could in principle arise both towards the

contracting party under the prior treaty, as a consequence of the conclusion of the later treaty, and towards the contracting party under the later treaty if, for instance, that contracting party was led to the conclusion of the treaty without being aware of the (p. 799) existence of an earlier conflicting treaty regime; or even without that condition being met, if the view prevails that every single treaty in this context is as good as another. In such case, if a treaty concluded between States A and B interferes with that concluded between States B and C, between which States would State responsibility arise: States B-A or States B-C? If State B cannot comply with both treaties and if both treaties are equally good how would it be established to whom reparation and remedies are owed? Would this question depend on the choice of State B? If one of the treaties is non-reciprocal, the outcome could in principle be more straightforward, because breaching a reciprocal treaty with one State could in legal terms be easier than breaching an interdependent or integral obligation with a multitude of parties. But this would only be the case as a matter of convenience, not of legal principle, if all treaties were of the same rank and importance. 93. All this confirms that leaving these matters to State responsibility may create systemic inconvenience. Responsibility implies remedies, such as restitution, which could, under certain circumstances, mean that the later treaty should be terminated or not implemented. If that treaty was still in force, this could entail a duality of legal regime. This could create further chaos if the object covered by one or both treaties is indivisible. Therefore, the most suitable conclusion should be that the reference to State responsibility under Article 30(5) is of purely consequential profile: it merely emphasizes the responsibility of States for actual breaches of the treaty which prevails, in substantive terms, in the pertinent case of conflict. In other words, Article 30(5) is not meant to entail the accommodation of the breach of a treaty through the conclusion of a conflicting treaty by providing responsibility and remedies as an alternative to the substantive applicability of the treaty that has been breached.

E. Conclusion 94. Article 30 is a product of unfortunate drafting, being the outcome of the codification process in which the considerations of experience and pragmatism were put above the principle. Although its ambit is limited, it has led and will in the future lead scholars and practitioners to draw false inferences that the parallel operation of mutually incompatible and violative treaties is possible in practice. Nothing would have stood in the way of the ILC or the Vienna Conference in terms of inserting into what is now Article 30 a clause exempting from the regime of parallel applicability of treaties those instruments which have an indivisible object.124 The inclusion of such clause would not have produced a rule of absolute effect as (in relation to interdependent treaty obligations) it would have been, as is the entire Article 30, subsidiary to the outcomes that States parties to a pertinent treaty may mutually agree in the pertinent case. (p. 800) 95. As judicial practice subsequent to the adoption of the Vienna Convention has demonstrated, the letter of Article 30 will not be applied as providing solutions to controversies that involve instruments with an indivisible object. It is thus important to consider Article 30 in the broader context of the Vienna Convention, mutually interacting with the law of treaty interpretation, termination, validity, as well as the principles of State responsibility. Only such perspective enables Article 30 to perform its designation without causing problems in terms of other aspects of the law of treaties as well as the rest of general international law. *

ALEXANDER ORAKHELASHVILI

Footnotes: 1 Judgment of 9 March 1917, AJIL, 1917, vol. 11, p 674, Ch. IV, at p 724. 2 Ibid, Ch. V, at p 725. 3 Ibid, p 727. 4 Ibid, pp 727–72. 5 Ibid, Ch. VII and the operative part, at p 729, original emphasis. 6 PCIJ, Series A/B, no. 63, p 80. 7 Ibid, pp 136, 148–50. 8 PCIJ, Series B, no. 14, p 23. 9 Cf Case concerning Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment of 3 June 1985, ICJ Reports 1985, p 13 at p 24, in which the Court observed that it ‘must not exceed the jurisdiction conferred upon it by the Parties, but it must also exercise that jurisdiction to its full extent’. 10 The problem of such duality arises also in relation to the Kadi decision of the European Court of Justice, see infra para. 49. 11 AJIL, Suppl. 1935, vol. 29, pp 1024, 1029. 12 H. Lauterpacht, Report on the Law of Treaties, YILC, 1953, vol. II, p 90, at p 156. 13 Ibid, p 158. 14 YILC, 1958, vol. II, pp 27–8. 15 Fitzmaurice, Third Report, YILC, 1958, vol. II, p 39, original emphasis. 16 Ibid, pp 39–40. 17 Ibid, pp 27–8.

18 Ibid, pp 41–2 (on different types of treaties see infra paras 33–40). 19 Ibid, p 44. 20 Commentary, para. 1, in Waldock's Second Report, YILC, 1963, vol. II, p 54. 21 Ibid, pp 55, 57, paras 7, 18. 22 Ibid, p 58, para. 19. 23 Ibid, para. 20. 24 Ibid, p 59, para. 25. 25 Ibid, p 59. 26 Report of the ILC to the General Assembly covering the work of its 18th session, YILC, 1966, vol. II, pp 169, 214. 27 Ibid, p 217. 28 Ibid, p 217, original emphasis. 29 Ibid, p 217, para. 13. 30 Ibid, p 216, para. 7. 31 Ibid, p 217, para. 13. 32 For these statements and practice see J. Sztucki, Jus Cogens and the Vienna Convention on the Law of Treaties (Vienna: Springer Verlag, 1973), pp 31–5. 33 Cf the views of Wolfram Karl, ‘Conflicts between Treaties’, Encyclopedia of Public International Law (Amsterdam: Elsevier, 1984), vol. 7, pp 467 ff, and Charles de Visscher, Theory and Reality of Public International Law (Princeton: Princeton University Press, 1968), p 271, cited in E. W. Vierdag, ‘The Time of “Conclusion” of a Multilateral Treaty: Article 30 of the Vienna Convention on the Law of Treaties and Related Provisions’, BYIL, 1988, p 111. 34 H. Waldock, Second Report on the Law of Treaties, YILC, 1963, vol. II, p 36, at p 53. 35 Al-Adsani v UK, Judgment of 21 November 2001, EHRR, 2002, vol. 34(11), pp 280, 289–90, paras 22, 57–8. 36 The reference is also made to the relevance of the intention of States parties to the second treaty, F. Paolillo, ‘Article 30’ in O. Corten and P. Klein (eds), Les conventions de Vienne sur le droit des traités (Brussels: Bruylant, 2006), p 1247, at p 1270. 37 E. W. Vierdag, ‘The Time of “Conclusion” of a Multilateral Treaty: Article 30 of the Vienna Convention on the Law of Treaties and Related Provisions’, BYIL, 1988, p 74, at p 100. 38 W. Jenks, ‘The Conflict of Law-Making Treaties’, BYIL, 1951, vol. 20, p 401, at p 403. 39 Ibid, pp 403, 408–9, 418–19, 429, 459. 40 Ibid. 41 Ibid. 42 J. Pauwelyn, Conflict of Norms in Public International Law (Cambridge: Cambridge University Press, 2003), p 242. 43 Report of the Study Group of the ILC, finalized by Martti Koskenniemi, A/CN.4/L.682, 13 April 2006, p 20, para. 21, p 129, para. 253. 44 Ibid, p 21, para. 23. 45 Ibid, p 130, para. 254. 46 Fitzmaurice, Second Report, YILC, 1957, vol. II, p 53. 47 ICJ Reports 1951, p 23. 48 Austria v Italy, YBECHR, 1961, vol. 4, p 140. 49 Ireland v UK, ILR, vol. 58, p 188, at p 291. 50 Effect of Reservations, ILR, vol. 67, pp 568–9, paras 29–30. 51 General Comment No. 24(52), IHRR, 1995, vol. 2, p 10, para. 17. 52 Kuprsekic, IT-95–16-T, Judgment of 14 January 2000, para. 518. 53 J Pictet, Commentary to the First Geneva Convention of 1949 (1952), pp 17–18. 54 A. Verdross, ‘Jus Dispositivum and Jus Cogens in International Law’, AJIL, 1966, p 59; G. Fitzmaurice, ‘The general principles of international law considered from the standpoint of the rule of law’, RCADI, 1957, vol. II, pp 125–6; U. Scheuner, ‘Conflict of Treaty Provisions with a Peremptory Norm of General International Law’, ZaöRV, 1969, vol. 29, p 30; E. Schwelb, ‘Some Aspects of International Jus Cogens’, AJIL, 1967, vol. 61, p 953; F. Capotorti, ‘Possibilities of Conflict in National Legal Systems between the European Convention and Other International Agreements’ in Robertson (ed.), Human Rights in National and International Law (1968), p 78; R. Kolb, Theorie du ius cogens international (Paris: PUF, 2001), pp 149–50; S. Kadelbach, Zwingendes Volkerrecht (Berlin: Duncker & Humblot, 1992), p 77; C. Walter, Die Europäische Menschenrechtsordnung (Cologne: Heymann, 1970), p 56; Pictet (1952), pp 18–19. 55 Fitzmaurice, Judicial Innovation: Its Uses and Its Perlis, Cambridge Essays in International Law (London, 1965), p 34; similarly, the Geneva Conventions admit no derogation: J. Quigley, ‘The Israel-PLO Agreements versus the Geneva Civilians Convention’, Palestinian Yearbook of Int'l L, 1992–94, vol. 7, p 61. 56 Kolb, supra n 54, p 150. F. Sudre, ‘Existe t-il un ordre public européen?’ in P. Tavernier, Quelle Europe pour les droits de l'homme? (Brussels: Bruylant, 1996), p 59, treating this

problem in terms of jus cogens. In addition, Judge Ress emphasized in the Bosphorus case before the European Court of Human Rights that ‘international treaties between the Contracting Parties have to be consistent with the provisions of the [European] Convention’, Concurring Opinion, Bosphorus, para. 5. Why so, one wonders, unless the provisions of the Convention have peremptory status? See further infra para. 47. 57 Second Report, YILC, 1957, vol. II, p 54; Third Report, YILC, 1958, vol. II, p 44. 58 Third Report, YILC, 1958, vol. II, p 44. 59 Cf SS Wimbledon, PCIJ, Series A, no. 1. 60 Cf A. D. McNair, ‘So-called “State Servitudes” ’, BYIL, 1925, pp 114–15. 61 Article 103 provides that: In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail. For detailed commentaries see J.-M. Thouvenin in J.-P. Cot and A. Pellet (eds), La Charte des Nations Unies (Paris: Economica, 2005) and B. Simma (ed), The Charter of the United Nations —A Commentary (Oxford: Oxford University Press, 2002), vol. II. 62 Fitzmaurice, Third Report, YILC, 1958, vol. II, p 43, original emphasis. 63 See M. Shaw and K. Wellens, Third ILA Report on Accountability of International Organisations (2003), p 13, considering that Art. 103 ‘establishes the primacy of the obligations contained in the Charter itself’. 64 D. Bowett, ‘The Impact of Security Council Decisions on Dispute Settlement Procedures’, EJIL, 1994, vol. 5, p 92. 65 Article 25 of the Charter provides that ‘The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter’. 66 Jenks, supra n 38, p 439. 67 R (on the application of Al-Jedda) (FC) (Appellant) v Secretary of State for Defence (Respondent), Appellate Committee [2007] UKHL 58, Judgment of 12 December 2007. 68 Ibid, paras 26 ff. 69 Ibid, paras 30–4. 70 ICJ Reports 1986, p 14. 71 eg the International Court in the Lockerbie case specified that: in accordance with Article 103 of the Charter, the obligations of the Parties in that respect prevail over their obligations under any other international agreement, including the [1971] Montreal Convention. (Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v UK), Provisional Measures, ICJ Reports 1992, p 15, paras 39–40.) 72 Separate Opinion, ICJ Reports 1993, p 440. 73 M. Shaw and K. Wellens, Third ILA Report on Accountability of International Organisations (2003), p 13; M. Shaw and K. Wellens, Final Report on Accountability of International Organisations (2004), p 19. 74 Al-Jedda, supra n 67, para. 35. 75 eg the International Criminal Tribunal for the former Yugoslavia (ICTY) in Tadić (Allegations of Contempt), 27 February 2001 affirms that the procedural guarantees under Art. 14 ICCPR reflect jus cogens. The Special Court for Sierra Leone held that the right to have the criminal conviction against oneself reviewed by the higher tribunal as enshrined in Art. 14(5) ICCPR is part of jus cogens, Prosecutor v Sam Hinga Norman, Case No. SCSL-2003–08-PT, para. 19; the UN Human Rights Committee General Comment 29 (2001) has likewise specified that freedom from arbitrary deprivation of liberty and the right to fair trial are part of jus cogens. 76 Ahmed Ali Yusuf and Al Barakaat International Foundation and Yassin Abdullah Kadi v Council of the European Union and Commission of the European Communities, Judgments of the EC Court of the First Instance in Case T-306/01 and Case T-315/01, 21 September 2005 (Yusuf, 306/01, paras 10–16, and Kadi, 315/01, paras 10–16). 77 Kadi, ibid, para. 189; Yusuf, ibid, para. 239. 78 Kadi, ibid, paras 192–3; Yusuf, ibid, paras 242–3; further referring to the relevance of Art. 48 of the UN Charter, according to which the Security Council decisions ‘shall be carried out by the Members of the United Nations directly and through their action in the appropriate international agencies of which they are members’. 79 Yassin Abdulah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities, Joined Cases C-402/05 P and C-415/05 P, Judgment of the European Court of Justice (Grand Chamber), 3 September 2008. 80 Kadi, ibid, paras 281–2, 287–8, 316–17. 81 For the text and analysis see infra para. 57. 82 Kadi, supra n 79, paras 302–4.

83 Mexico-Taxes on Soft Drinks, WT/DS308/AB/R, Appellate Body Report, AB-2005–10, 6 March 2006, para. 68. 84 Ibid, para. 69; this was moreover confirmed by the illustrative reference in Art. XX(d) to the examples of domestic laws and regulations covered by this provision, such as those on customs and monopolies, ibid, para. 70. 85 For an overview see Vierdag, supra n 37, pp 92 ff. 86 Such was the view of the Expert-Consultant Waldock at the Vienna Conference; cf Vierdag, p 95. 87 Vierdag, supra n 37, p 108. 88 Jenks, supra n 38, p 440. 89 ILC Final Report, YILC, 1966, vol. II, p 216, para. 7. 90 Article 311 reads:

Relation to other conventions and international agreements 1. This Convention shall prevail, as between States Parties, over the Geneva Conventions on the Law of the Sea of 29 April 1958. 2. This Convention shall not alter the rights and obligations of States Parties which arise from other agreements compatible with this Convention and which do not affect the enjoyment by other States Parties of their rights or the performance of their obligations under this Convention. 3. Two or more States Parties may conclude agreements modifying or suspending the operation of provisions of this Convention, applicable solely to the relations between them, provided that such agreements do not relate to a provision derogation from which is incompatible with the effective execution of the object and purpose of this Convention, and provided further that such agreements shall not affect the application of the basic principles embodied herein, and that the provisions of such agreements do not affect the enjoyment by other States Parties of their rights or the performance of their obligations under this Convention. 4. States Parties intending to conclude an agreement referred to in paragraph 3 shall notify the other States Parties through the depositary of this Convention of their intention to conclude the agreement and of the modification or suspension for which it provides. 5. This article does not affect international agreements expressly permitted or preserved by other articles of this Convention. 6. States Parties agree that there shall be no amendments to the basic principle relating to the common heritage of mankind set forth in Article 136 and that they shall not be Party to any agreement in derogation thereof. 91 On this phenomenon in detail see infra paras 71–87; a passing remark could be that the UN Charter concluded in 1945 falls within the category of pre-1958 agreements and thus the question arises what the relevance of Art. 307 is in relation to the primacy of the Charter, which question was disregarded in the ECJ decision in Kadi. 92 UNTS, vol. 1690, no. I-29137 (1992), p 52. 93 See for detail infra para. 71. 94 Some jurisdictional clauses are part of bilateral or multilateral treaties, and establish the International Court's jurisdiction under Art. 36(1) of its Statute; the Optional Clause declarations produce essentially treaty relations, see A. Orakhelashvili, ‘The Concept of International Judicial Jurisdiction: A Reappraisal’, LPICT, 2003, vol. 3, pp 501–50; A. Orakhelashvili, The Interpretation of Acts and Rules in Public International Law (Oxford: Oxford University Press, 2008), ch. 12. 95 A. V. Lowe, ‘Overlapping Jurisdiction of International Tribunals’, Australian Yearbook of Int'l L, 1999, vol. 20, p 191, at pp 193–4. 96 Ibid, p 194. 97 As the ICTY observed in Tadi´c: Jurisdiction is not merely an ambit or sphere (better described in this case as ‘competence’); it is basically—as is visible from the Latin origin of the word itself, jurisdictio—a legal power, hence necessarily a legitimate power, ‘to state the law’ (dire de droit) within this ambit, in an authoritative and final manner. (Tadi´c, Decision by the Appeal Chamber, IT-94–1-AR72, para. 10) 98 Case Concerning the Factory at Chorzów (Claim for Indemnity) (Jurisdiction), Judgment No. 8 of 26 July 1927, PCIJ, Series B, no. 3, 1925, p 30. 99 The Electricity Company of Sofia and Bulgaria, Preliminary Objection, PCIJ, Series A/B, no. 77, 1939, p 64, at p 75. 100 Ibid, pp 75–6. 101 Ibid, pp 80, 83. 102 A. D. McNair, The Law of Treaties (Oxford: Oxford University Press, 1961), p 22. 103 YILC, 1966, vol. II, pp 216–17, para. 10.

104 Vierdag, supra n 37, p 96. 105 ‘Material breach’ is defined in Art. 60(3) of the Vienna Convention as: (a) a repudiation of the treaty not sanctioned by the present Convention; or (b) the violation of a provision essential to the accomplishment of the object or purpose of the treaty. The fact of the conclusion of a conflicting treaty will easily if not definitionally satisfy this requirement. 106 Kindler v Canada, ILR, vol. 98, pp 444–5; with regard to the bilateral treaty the Committee expressed the approach in principle similar to Kindler, see Evan Julian et al v New Zealand, Communication No. 601/1994, CPCR/C/59/D/601/1994, 3 April 1997, para. 8.2. 107 M & Co. v FRG, Application no. 13258/87, 9 February 1990, YBECHR, 1990, vol. 33, pp 51–2. 108 Waite & Kennedy v Germany, 18 February 1999, para. 67. 109 Matthews v UK, ECtHR, Application no. 24833/94, 18 February 1999, paras 26–35. 110 Bosphorus Hava Yollari Turizm v Ireland, Application no. 45036/98, paras 155–6. 111 Concurring Opinion, Bosphorus, ibid, para. 5; see also the Joint Concurring Opinion of Judges Rozakis et al in Bosphorus, affirming that ‘member States are responsible, under Article 1 of the Convention, for all acts and omissions of their organs, whether they arise from domestic law or from the need to fulfil international legal obligations’: para. 1. As Judge Ress emphasized in the same case, ‘international treaties between the Contracting Parties have to be consistent with the provisions of the Convention’: para. 5. 112 Soering v UK, Application no. 14038/88, 7 July 1989. 113 Capital Bank v Bulgaria, Application no. 49429/99, 24 November 2005, paras 38, 43, 110–11. 114 Short v Netherlands, ILM, 1990, vol. 29, p 1378. 115 Kolb, supra n 54, p 150, emphasizing that where a later treaty conflicts with a prior treaty embodying jus cogens, the invalidity of the later treaty can ensue; specific reparation ordered by a tribunal could consist precisely in abrogation of, or in an order to abrogate, the later incompatible treaty: ibid, p 152. The rules on conflict between treaties should be adapted to the existence of peremptory norms within the treaties. In this way, the norm of a subsequent incompatible treaty may become invalid. It is in this indirect and limited sense that jus cogens applies to the collision of treaties: ibid, p 156; see further J. Dugard and C. van den Wyngaert, ‘Reconciling Extradition with Human Rights’, AJIL, 1998, p 195, confirming that the compatibility of other treaties, such as extradition treaties, with human rights treaties is effectively the only issue that matters in this process. 116 EU General Affairs and External Affairs, Document No. 12134/02, p 10. 117 J. Crawford, P. Sands, and R. Wilde, Joint Opinion in the Matter of the International Criminal Court and in the Matter of Bilateral Agreements Sought by the United States under Article 98(2) of the Statute, 5 June 2003, paras 49–51. Available at: http://www.humanrightsfirst.org/international_justice/Art98_061403.pdf. 118 S. Zappala, ‘Entry into Force of the ICC Statute: Comments on the UN SC Resolution 1422 (2003) and Article 98(2) Agreements’, JICJ, 2003, vol. 1, p 114, at pp 129–30, 133. 119 D. Scheffer, ‘Article 98(2) of the ICC Statute: America's Original Intent’, JICJ, 2005, vol. 3, p 333, at p 336. 120 Jenks, supra n 38, p 446. 121 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, General List No. 131, para. 106; Case Concerning the Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Judgment of 19 December 2005, General List No. 116, para. 216. 122 Jenks, supra n 38, pp 447–8. 123 ILC Final Report, YILC, 1966, vol. II, p 217. 124 This could have been something on the conditions specified in Art. 60(2)(c) of the Vienna Convention which, although dealing with treaty termination, refers to structural characteristics of treaties of broader significance. According to this clause: any Party other than the defaulting State to invoke the breach as a ground for suspending the operation of the treaty in whole or in part with respect to itself if the treaty is of such a character that a material breach of its provisions by one Party radically changes the position of every Party with respect to the further performance of its obligations under the treaty. Article 41 on inter se modification of treaties includes similar safeguards (para. 1(c)). * LLM cum laude (Leiden); PhD (Cantab.); Lecturer, School of Law, University of Birmingham.

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Volume I, Part III Observance, Application and Interpretation of Treaties, s.2 Application of Treaties, Art.30 1986 Vienna Convention Alexander Orakhelashvili From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Treaties, successive — UN Charter

(p. 801) 1986 Vienna Convention Article 30 Application of successive treaties relating to the same subject matter 1. The rights and obligations of States and international organizations parties to successive treaties relating to the same subject matter shall be determined in accordance with the following paragraphs. 2. When a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or later treaty, the provisions of that other treaty prevail. 3. When all the parties to the earlier treaty are parties also to the later treaty but the earlier treaty is not terminated or suspended in operation under article 59, the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty. 4. When the parties to the later treaty do not include all the parties to the earlier one: (a) as between two parties, each of which is a party to both treaties, the same rule applies as in paragraph 3; (b) as between at party to both treaties and a party to only one of the treaties, the treaty to which both are parties governs their mutual rights and obligations. 5. Paragraph 4 is without prejudice to article 41, or to any question of the termination or suspension of the operation of a treaty under article 60 or to any question of responsibility which may arise for a State or for an international organization from the conclusion or application of a treaty the provisions of which are incompatible with its obligations towards a State or an organization under another treaty. 6. The preceding paragraphs are without prejudice to the fact that, in the event of a conflict between obligations under the Charter of the United Nations and obligations under a treaty, the obligations under the Charter shall prevail. 1. The Final Commentary of the ILC on Article 30 of the 1986 Vienna Convention is rather brief, which the Commission explained by the similarity of this provision with Article 30 of the 1969 Convention. The Commentary includes no substantive consideration of any of the paragraphs apart from paragraph 6.1 2. The principal question debated in the ILC was whether Article 103, the role of which was recognized in paragraph 1 of Article 30 of the 1969 Convention, could also be extended to international organizations. One argument was that Article 103 should apply to the conduct of organizations which constitute a vehicle for collective action of States and the latter should not be permitted to rid themselves of what they are subjected to individually. Another, diametrically opposed, argument was that as Article 103 does not mention international organizations, which are not and cannot be parties to the UN Charter, they could be under no obligation to take into account the Charter and were thus free to conclude agreements that do not correspond to the Charter. Despite the opposition between these two arguments, the Commission considered that it should state (p. 802) the proviso on Article 103 in a way allowing for both of the interpretations supra. Therefore, instead of including a primacy clause like Article 30(1) of the 1969 Convention, the Commission decided to include a more neutral paragraph 6 stating that the preceding paragraphs ‘are without prejudice to Article 103 of the Charter of the United Nations’.2 3. At the 1986 Vienna Conference the Argentinian delegate pointed to the fact that if paragraph 6 were retained as it stood, the important rule it laid down would apply only to States and not to international organizations, and submitted the amendment accordingly. Australia and Canada proposed the amendment to include a general saving clause similar to Article 30(1) of the 1969 Convention and/or to delete paragraph 6, as it stood in the ILC draft, altogether. The main problem with draft paragraph 6 related to its deliberately ambiguous character as the Commission had expressly characterized it.3 The Mexican representative specified that the Commission's approach manifested its recognition of having failed to resolve this important problem. The Moroccan and Pakistani representatives disapproved the possibility of international organizations concluding treaties not in accordance with the Charter.4 The Netherlands representative (W. Riphagen) stressed that the primacy of Article 103 referred only to obligations flowing from the Charter. The representatives of India, China, and the UN, and several others, also supported the thesis that Article 103 should apply to international organizations.5

References 4. Thus, the final text of paragraph 6 is straightforward in giving to the Charter primacy over inconsistent treaties. In this sense, paragraph 6 may be seen as going beyond what Article 103 itself requires. But this is a necessary implication where at least one party to the treaty is a State. Even in relation to constituent instruments of international organizations whose parties are States only, Article 103 can possess both interpretative and hierarchical significance in

terms of construing the charters of delegated powers as compatible with the higher ranking obligations of States under the UN Charter. This issue arose in the Kadi litigation before the EU courts, in which the Court of First Instance upheld the general primacy of the UN Charter over EU constituent instruments and legislation, subject to jus cogens to which Article 103 is itself subordinated;6 and the European Court of Justice (ECJ) decided the case without regard to the primacy of the UN Charter, and treated the EU legal regime as autonomous in relation to the rest of international law.7 While it is true that Kadi did not involve the conflicting obligations under more than one treaty to which the EC is a party, if the ECJ approach is right then in practice the EC may carry on with concluding and implementing international agreements that are contrary to the UN Charter, and to UN Security Council resolutions, which cannot be conducive to stability and consistency of the legal framework. The position under which the EU is not bound by the UN Charter cannot be separated from the (p. 803) projected—and impossible—position under which EU member States are not bound by the Charter either.

References 5. The corollary to paragraph 6 providing the primacy of the UN Charter over treaties to which international organizations are parties is provided by Article 48 of the UN Charter, which provides that States shall implement the Security Council Chapter VII measures not only individually, but also through international agencies of which they are members. This is reflected in Security Council Resolutions 748 (1992) on Libya, 1132 (1997) on Sierra Leone, and 1267 (1999) on Afghanistan, which call upon all States, including States not members of the United Nations, and ‘all international organizations’, to act strictly in accordance with prescriptions of the relevant resolutions, ‘notwithstanding the existence of any rights or obligations conferred or imposed by any international agreement or any contract’. The legality of each resolution has to be judged on its own merit, and there have indeed been cases where regional organizations announced their intention to disregard the relevant resolution, such as Resolution 748, as exceeding the Council's delegated powers.8 But neither this practice nor any other legal rule or instrument seems to imply any disapproval of the general legality or propriety of the Security Council's policy to demand compliance by other international organizations with its own resolutions (provided that these resolutions are not themselves illegal). This entitlement of the Security Council flows, again, from the primacy of the UN Charter, as far as the obligations of States under the treaties founding other organizations are concerned. This way, international organizations too are bound to defer the execution of treaties to which they are parties if the UN Charter or a lawful Security Council resolution requires them to do so.

References 6. In the field covered by Article 30, there is treaty practice that may in principle be seen as responding to Article 30(2). Article 84 of the 1993 Revised Treaty of the Economic Community of the West African States (ECOWAS) specifies that: 1. Member States may conclude agreements among themselves and with non-Member States, regional organizations or any other international organization, provided that economic agreements are not incompatible with the provisions of this Treaty. The second paragraph goes on to specify that: In the event that agreements concluded before the entry into force of this Treaty between Member States or between Member States and non-Member States, regional organizations or any other international organizations are incompatible with the provisions of this Treaty, the Member State or Member States concerned shall take appropriate measures to eliminate such incompatibility. Thus the ECOWAS Revised Treaty proclaims its primacy over conflicting agreements concluded with the participation of States and organizations. *

ALEXANDER ORAKHELASHVILI

References

Footnotes: 1 A/CONF.129/4, UN Conference on the Law of Treaties between States and International Organizations or between International Organizations, Vienna, 18 February–21 March 1986, Official Records, vol. II, Documents of the Conference (New York, 1986), p 5, at p 25. 2 Ibid, pp 25–6. 3 UN Conference on the Law of Treaties between States and International Organizations or between International Organizations, Vienna, 18 February–21 March 1986, Official Records, vol. I, Summary Records of the plenary meetings and of the meetings of the Committee of the Whole (New York, 1986), pp 119–20. 4 Ibid, p 120. 5 Ibid, pp 120–2. 6 Ahmed Ali Yusuf and Al Barakaat International Foundation and Yassin Abdullah Kadi v Council of the European Union and Commission of the European Communities, Judgments of

the EC Court of First Instance in Case T-306/01 and Case T-315/01, 21 September 2005. 7 Yassin Abdulah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities, Joined Cases C-402/05 P and C-415/05 P, Judgment of the European Court of Justice (Grand Chamber), 3 September 2008. 8 The Crisis between the Great Socialist People's Libyan Arab Jamahiriya and the United States of America and the United Kingdom, AHG/DEC 127 (XXXIV), 8–10 June 1998, African Yearbook of Int'l L, 1998, vol. 6, pp 390–1. * LLM cum laude (Leiden); PhD (Cantab.); Lecturer, School of Law, University of Birmingham.

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Volume I, Part III Observance, Application and Interpretation of Treaties, s.3 Interpretation of Treaties, Art.31 1969 Vienna Convention Jean-Marc Sorel, Valérie Boré Eveno From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Rules of treaty interpretation — Customary international law — Travaux préparatoires — State practice — Object & purpose (treaty interpretation and) — Vienna Convention on the Law of Treaties

(p. 804) 1969 Vienna Convention Article 31 General rule of interpretation 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended. A. A difficult gestation process 806 General characteristics 806 The status of principles of interpretation before the 1969 Convention:custom or mere practice? 809 The difficult emergence of Article 31 via the ILC travaux and the Vienna Conference 812 B. An overwhelming practice 817 The basis of interpretation (paragraph 1) 817 Taking into account the ‘internal’ context (paragraph 2) 823 Taking into account the ‘external’ context (paragraph 3) 825 Reintegration of the intention of the parties (paragraph 4) 829 Silences, implications, and gaps in Article 31 830

Bibliography Berlia, G., ‘Contribution à l'interprétation des traités’, RCADI, 1965-I, vol. 114, pp 283– 333 Boré Eveno, V., ‘L'interprétation des traités par les juridictions internationales (étude comparative)’, thesis, Université Paris 1 Panthéon-Sorbonne, 2004 Bos, M., ‘Theory and Practice of Treaty Interpretation’, NILR, 1980, pp 3–38 and 135–70 Canal-Forgues, E., ‘Sur l'interprétation dans le droit de l'OMC’, RGDIP, 2001, vol. 1, pp 5–24 Degan, V. D., L'Interprétation des accords en droit international (The Hague: Martinus Nijhoff, 1963) Distefano, G., ‘La pratique subséquente des Etats Parties à un traité’, AFDI, 1994, pp 41–71 Golsong, H., ‘Interpreting the European Convention on Human Rights Beyond the Confines of the Vienna Convention on the Law of Treaties?’ in R. St J. Macdonald et al (eds), (p. 805) The European System for the Protection of Human Rights (Dordrecht: Martinus Nijhoff, 1993), pp 147–62 Kolb, R., Interprétation et création du droit international: esquisses dune herméneutique juridique moderne pour le droit international public (Brussels: Bruylant, 2006) Letsas, G., A Theory of Interpretation of the European Convention on Human Rights (Oxford: Oxford University Press, 2007) Linderfalk, U., On the Interpretation of Treaties: The Modern International Law as Expressed in the 1969 Vienna Convention on the Law of Treaties (Dordrecht: Springer Verlag, 2007) McDougal, M. S., ‘The International Law Commission's Draft Articles upon Interpretation: Textuality Redivivus’, AJIL, 1967, pp 992–1000 —— et al, The Interpretation of International Agreements and World Public Order: Principles of Content and Procedure (New Haven: New Haven Press; Dordrecht: Martinus Nijhoff, 1994) Ruiz Fabri, H., ‘L'appel dans le règlement des différends de l'OMC’, RGDIP, 1999, vol. 1,

pp 47–128 Simon, D., L'interprétation judiciaire des traités d'organisations internationales (morphologie des conventions et fonction juridictionnelle) (Paris: Pedone, 1981) Sudre, F. (ed.), L'interprétation de la Convention européenne des droits de l'homme (Brussels: Bruylant, 1998) Sur, S., L'interprétation en droit international public (Paris: LGDJ, 1974) Torres Bernardez, S., ‘Interpretation of Treaties by the ICJ following the Adoption of the 1969 Vienna Convention on the Law of Treaties’, Fetschrift Seidl-Hohenveldern (II) (The Hague: Kluwer, 1998), pp 721–48 de Visscher, Ch., Problèmes d'interprétation judiciaire en droit international public (Paris: Pedone, 1963) Voicu, I., De l'interprétation authentique des traités internationaux (Paris: Pedone, 1968) Yasseen, M. K., ‘L'interprétation des traités d'après la convention de Vienne’, RCADI, 1976-III, vol. 151, pp 1–114 1. Article 31 is indisputably a central clause of the Vienna Convention. This provision can serve as a guide for all authors of the present work, commenting on the other Articles of the Convention.1 Whilst the scarcity of references and practical applications is the lot of certain clauses, Article 31 has been so frequently mentioned that only an abbreviated study of its various aspects is possible.2 Indeed, States and courts (international or domestic) have abundantly used the interpretation guides contained in this Article. Its success is undoubtedly due to the relative lucidity of its terms as well as the consensus to which it gives rise. One may even claim that the obviousness of its provisions endows it with automatic acceptance from its users. 2. Nevertheless, the success of Article 31 on treaty interpretation follows a codification operation often qualified as delicate.3 According to Paul Reuter, the Article is ‘une des réussites les plus remarquables de la Convention de Vienne’,4 dealing with an issue which was, according to Roberto Ago,5 one of the most difficult faced in the entire body (p. 806) of treaty law. This Article therefore benefits from a general approbation that doctrine and the ensuing practice of States and courts seem to confirm.6 3. It is true that interpretation in general and the interpretation of treaties in particular, is of fundamental importance in law since it results in ‘releasing the exact meaning and the content of the rule of law that is applicable to a given situation’,7 and that: Controversies regarding interpretation would not be so strong if they did not translate into a battle for mastering the legal system, which turns the interpretive process into a variant of the battle for the law.8 This is how we measure the stakes attached to the interpretative process, a sort of ‘logique au service du droit’9 concretized by an intellectual operation aiming to extract the legal solution that stands out at a given moment in time. But above all, the importance lies not in the interpretation stricto sensu but in what the interpretation requires: the application of law according to an extremely lucid adage: ‘Il n'y a pas d'application sans interpretation’.10 4. To decipher this complex phenomenon successfully, it is necessary to return to the reality of interpretative principles preceding and coinciding with the travaux leading to the Vienna Convention. It is difficult to pinpoint how principles were exactly codified in those days because practice remained relatively confused (even if the Article's constitutive elements were already present) and the construction of Article 31 was fairly unstable and lively. It is however easier to link plethoric practice subsequent to the Convention with the latter's prescriptions, in order to assess to what extent the Articles have been observed.

References

A. A difficult gestation process General characteristics 5. The first obstacle that the analysis of interpretation comes across is the oft-repeated statement that interpretation appeals to the artistic rather than scientific qualities of a (p. 807) lawyer.11 In the great debate on whether law is art, science, or mere technique, interpretation occupies a prime position on the crossroads between law and politics, a true ‘instrument for measuring’ legal coherence.12 This debate is based on the uncertainty concerning the polymorphous nature of interpretation, for this term is an umbrella expression that designates both the interpretative process and its result. This ensemble is even more complex if we make a distinction between the means of interpretation (a list of which is drawn up by Art. 31), the methodology of interpretation, and the interpretative policy followed by States or international or domestic courts. Interpretative policy remained long marked by the traditional—although poorly formulated—statement that the interpretation given by concerned parties is an ‘authentic’ interpretation, as opposed to an interpretation given by a third party which is considered ‘non-authentic’. As the Vienna Convention indistinguishably addresses all those who aim to interpret a treaty, the question of the value of interpretation is hardly resolved except by its guidance to achieve a harmonization of interpretations. 6. The issue of treaty interpretation also aroused fresh interest due to the establishment of numerous international courts in the course of the last decade (the Dispute Settlement Body of the WTO, the International Tribunal for the Law of the Sea, the international criminal courts). Whilst States and international organizations continue to be the prime ‘consumers’ of interpretation, international courts, by dint of their function, perpetually find themselves

pushed up against the wall of interpretation. As reflected by the travaux of the ILC during the drafting of the Convention, only arbitral awards and judgments of the International Court of Justice (ICJ) served as references at the time but this would probably not be the case today. Not only have the interpretative methods diversified but also the coherence of specific interpretations has often been brought into question, despite a certain conciliatory harmony, for the moment, between the courts. 7. As a result, the interpretation of treaties which always occupied States, courts, and arbitration tribunals in the past, remains and will remain a current issue. We can therefore understand the sensitivity expressed during the ILC travaux and the Conference. Originating from a recognized practice, the means of interpretation codified in 1969 are endlessly repeated references on which users lean (even if they end up ignoring them in the end), like sacred texts that are often difficult to apply but are constantly invoked.13 8. Article 31, a type of ‘sacrosanct’ core, is set out in four paragraphs which must not be read in hierarchical order but according to an overall logic. The first paragraph lays the foundation of the interpretative process, which is to give priority to the treaty text through invoking a few general guidelines: good faith, the ordinary meaning of terms as intended at the time of the treaty's conclusion,14 in its context and in the light of its object and purpose, that is, according to the content and end result attributed to (p. 808) it. The second paragraph specifies what should be understood by ‘context’, a term also employed in the first paragraph. It is understood that this automatically includes the text of the treaty itself, the preamble (a section that should not be neglected when seeking to understand the intention of the parties), and any possible annexes (which often prove to be important and extremely weighty in a number of modern treaties, notably in technical domains). However, the context also includes agreements between the parties at the time when the treaty was concluded: agreements with a bearing on the treaty as well as similar agreements between certain parties to the treaty which have been approved by the other parties.15 Since this context does not suffice for the interpretation of a treaty, paragraph 3 requests that account be taken, ‘together with the context’ (thus indicating that no hierarchy exists between paragraphs 2 and 3), of subsequent interpretative agreements, the subsequent practice of parties, as well as any relevant rule from international law applicable between the parties. In reality, this relatively wide-scale ensemble can be qualified as the external context of the treaty if the entire context were represented as concentric circles. This results in an evolutive approach towards the treaty interpretation thereby addressing—without explicitly naming the concept—the issue of inter-temporal law.16 Finally, the last paragraph reintroduces the notion of the specific intention of the parties by mentioning the possibility of detecting a special meaning for a term if this was indeed their intention. This possibility has been widely used, notably by the European Court of Justice (ECJ),17 in the context of teleological interpretation which is not mentioned as such in Article 31. The specification in Article 31(4) therefore does not render the previous paragraphs useless but complements these when there exists a clearly manifested intention to give a particular meaning to a certain clause. 9. It is thus fairly obvious that the text of Article 31 is a true example of a compromise: a compromise between the defenders of textual interpretation, of subjective interpretation based on the parties' intention, and of ends-focused or teleological interpretation which attempts to extract those meanings from the text which might be intended beyond the formulation used.18 This Article intertwines different means of interpretation (text, context, and circumstances) and ways to perceive these means, in other words, methods. The objective is to find an interpretation that is simultaneously obvious (the ordinary meaning of terms), logical (an acte clair), and effective (a useful effect).19 To this end, Article 31 contains a method for evaluating elements resembling case law precedent, a method applied by case law subsequent to the Convention.20 The next step in this commentary is to examine how the ILC and the Conference arrived at this result and to what extent Article 31 was subsequently appreciated in practice and case law.

References

(p. 809) The status of principles of interpretation before the 1969 Convention: custom or mere practice? 10. Rules of interpretation, already widely used in their current form before the 1969 Convention, were marked by the seal of caution. There was a general wariness of rigid rules as reflected by the debates during the ILC travaux.21 The work of the Special Rapporteur was based on previous case law and doctrine in order to establish a framework in which caution had its place, beginning with the necessity to codify such rules. Reserve is reflected in the following statement: ‘No canons of interpretation can be of absolute and universal utility…’.22 It was thus advisable to codify only ‘prima facie guides’,23 given that it would scarcely be possible to cover principles and methods in detail. It would only be feasible to codify what was at first glance the object of an agreement. This generalized prudence has ultimately proven to provide a contested customary grounding of rules in relation to treaty interpretation. While practice, largely emanating from the interpretation of contrasts, and therefore general principles of law, is abundant and well established, no method seems to have received the anointing of an infallible opinio juris. 11. The ILC was able to rely on the findings of the Institute of International Law which had made a timid attempt at drawing up a synthesis during its 1950 and 1956 sessions.24 The first draft of the future Articles on interpretation drew widely on these findings as well as on the synthesis proposed by Sir Gerald Fitzmaurice,25 which was based on case law from arbitration tribunals and the Hague Court (Permanent Court of International Justice (PCIJ), then ICJ). We can thus once again gauge the crossbreed influence of doctrine and case law on the

codification travaux. Nevertheless, since former practice demonstrated an attachment to the text because it is, first, an authentic expression of the parties' will, secondly, a reflection of the parties' intention as a subjective element distinct from the text, and, thirdly, a reflection of the purpose and object—declared or apparent—of the treaty, no clear dividing line emerged. We can schematize this debate in terms of the tension between the declared intention emanating from the terms of the treaty, versus the real intention emanating from the intention of the parties. Article 31 would reflect the necessary compromise between these different points of view often characterized as textual, subjective, or teleological. 12. The practice of chancelleries or tribunals did not shed any light on the debate. As observed by the ILC, a whole range of maxims on interpretation was used variably and often discretionarily (with nevertheless a slight ‘advantage’ accorded to the textual approach),26 hence the statement that interpretation is more an art than a science. The ILC's work would therefore itself be hybrid: this codification task was also answerable to the evolutive development of international law while ultimately providing an adroit synthesis of scattered positions. (p. 810) 13. Case law preceding the ILC travaux reflects this diversity. Reading this case law helps to grasp the feelings of doubt that may have filled various Special Rapporteurs in the face of a dispersed reality, sometimes within a single court. It is moreover striking that the PCIJ, followed by the ICJ, opened their awards with opinions on interpretation, each of which contained most of the possibilities open to interpretation. The Advisory Opinion of 12 August 1922 on the Competence of the ILO in regard to International Regulation of the Conditions of the Labour of Persons Employed in Agriculture rested on an objective textual approach to interpret the Versailles Treaty of 28 June 1919 while taking into account the context, the parties' intention, subsequent practice, and, in a subsidiary manner, the travaux préparatoires: everything—or almost everything—can be found there.27 As for the ICJ, its Advisory Opinion of 28 May 1948 on the Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter) privileged a textual interpretation based on the ordinary meaning of terms.28 However, it also referred to the necessity to examine the parties' intention (notably if there is no acte clair) and mentioned a possible use of travaux préparatoires. This overlap of interpretative methods used at both courts also occurs in subsequent case law. Successively or cumulatively, the PCIJ pronounced its opinion on the ‘effectiveness’ to be accorded to the clauses of a treaty,29 on textual or objective interpretation,30 on the subsequent practice of parties to a treaty,31 on the role of travaux préparatoires,32 on the context of the treaty,33 on interpretation in the light of the treaty's object or purpose,34 not to mention teleological interpretation which began to anchor itself in the minds of judges through the influence of implicit powers.35 Even if the future Vienna Convention would not retain these restrictions, the PCIJ issued a reminder that it was necessary to interpret restrictions to a State's independence restrictively,36 and that authentic interpretation was not within a court's jurisdiction.37 It is thus beyond dispute that the codified means in Article 31 pre-existed the Convention (p. 811) and that they were known and used by States and courts. Nevertheless, what might be surprising is the extreme diversity of these means, their somewhat disorderly usage, and finally, the low level of confidence placed in their consecration. We are dealing with a global practice in which each element cannot truly be given a customary character.

References 14. Until the beginning of the 1960s (a critical date for the ILC to take into consideration its case law), the ICJ would demonstrate no firmer resolve in its line of conduct. Other than the Advisory Opinion of 28 May 1948 mentioned supra which sums up its former practice, the Court would also pronounce on the ‘effectiveness’ which had to be accorded to treaty clauses. This somewhat limits the treaty,38 and had an effect on the interpretation of subsequent practice,39 the role of travaux préparatoires,40 the context of the treaty,41 the ‘natural and ordinary meaning’ to give the terms of the treaty,42 the notion of acte clair, and the intention of the parties.43 It also influenced the interpretation in the light of the treaty's object or purpose, a point on which the Court developed a tendency towards teleological interpretation in respect of international organization powers, notably the UN.44 In other words, this case law did not constitute a linear guide to detecting interpretative norms that could be imposed in absolute terms. Examination of the case law of several courts emerging at that time does not alter this point of view. In its judgment of 1 July 1961 in the Lawless case, the European Court of Human Rights (ECtHR) relied on codification travaux in progress to back up its preference for an interpretation taking the treaty's context into account and advocating a teleological vision which in this particular case allowed it to confirm a textual interpretation.45 After a rather diffident debut in which it restricted itself to textual interpretation,46 the ECJ increasingly asserted the autonomy of Community law by taking into account the context of the treaty, implicit (p. 812) powers,47 and finally, the ‘communitarian’ meaning that should be attributed to the treaty's terms.48 Already one could foresee what would become a quasiconstant in the case law of all courts: the affirmation of a teleological interpretation for constitutional acts of international organizations.

References 15. Indisputably, the PCIJ, the ICJ and, in their wake, the ECtHR and the ECJ, played a role in the development of the teleological method and the notion of effectiveness. However, this case law was still not widely affirmed at the time when debates took place in the ILC, and the other interpretative means were generally used cumulatively without any clear line of action standing out. The ILC would thus have to navigate between multiple obstacles. For example, it appeared difficult to detect a dividing line between ‘effectiveness’, evocation of the treaty's

‘object and purpose’, and a purely teleological approach towards the reading of the treaty. In short, the ILC was confronted with important, though not always compatible, factors which allowed it to elaborate on the codification of interpretative rules without any certainty that the basis was solidly customary. A statement from the award in the 1957 Lake Lanoux case sums up these uncertainties: ‘Le droit international ne consacre aucun système absolu d'interprétation’.49 The ILC would thus give the impression of codifying customary principles of interpretation whilst the basis for this remained fragile. Instead, it would be the Convention itself which would render these principles customary and project them into the future as if they had always been customary.50

References

The difficult emergence of Article 31 via the ILC travaux and the Vienna Conference 16. Even though the drafting of the Articles on the law of treaties commenced in 1949, it was not until the beginning of the 1960s that any real progress was made after several interrruptions during the 1950s. In the ILC report of spring 1964,51 with Sir Humphrey Waldock as Special Rapporteur, the topics of the future Articles 31 to 33 were first divided over six Articles (70 to 75) which were much more detailed and fairly redundant, under an overarching Section 3 on the interpretation of treaties. These Articles, exposed to the scrutiny of critics, would undergo various evolutions.52 The subject was judged so delicate (p. 813) that the alternatives seemed to be either to remain silent on aspects concerning treaty interpretation, or to cover only a very limited number of rules. This second solution was retained with the proposition of four general Articles (70 to 73) and two Articles on special problems (74 and 75 on treaties in several languages or several versions). However, it was, for example, deemed useless to establish a distinction between ‘law-making treaties’ and ‘contract-treaties’.53 17. Article 70 of the draft Articles constituted the general reference Article;54 it was composed of ‘General rules’ based on the primacy of the text as evidence of the intention of the parties. It seems that there was a desire to minimize the tendency towards subjective interpretation via reliance on the intention of the parties. The three paragraphs of the Article illustrated this general principle more precisely. By virtue of the first paragraph, interpretation should be carried out in good faith, according to the ordinary and natural meaning of terms (which constituted, according to the Special Rapporteur, the ‘basis of interpretation’), taken in its global context (which the PCIJ and the ICJ abundantly illustrated), and according to the common usage at the time when the text was drafted. This last point, which raised the question of inter-temporal law, had been the object of lengthy discussions, for draft Article 56 had already targeted inter-temporal law in the context of the application and effects of treaties. The first paragraph of Article 56 dealt specifically with interpretation: ‘A treaty is to be interpreted in the light of the law in force at the time when the treaty was drawn up’, whilst paragraph 2 privileged, for the application of a treaty, the law in force at the time when the treaty was applied.55 The dilemma appeared difficult to resolve, not only with regard to Article 56, but also between Article 56 and the section dedicated to interpretation. The redundancy (similar to that which existed with Art. 73) was thus deliberate and destined to persist until this point was clarified. The second and third paragraphs of Article 70 qualified the principles in the first paragraph by providing that, if the ordinary meaning did not lead to a coherent result, or if it was not clear, account should be taken of the context of the treaty or other means of interpretation (which were then mentioned in Art. 71). Similarly, if parties intended to give a ‘special meaning’ to a term, the ordinary meaning should be ruled out.

References 18. Article 71 aimed to define the application of the ‘General rules’ set out in Article 70. This concerned above all the context of the treaty which was specified to include the preamble, documents annexed to the treaty, as well as supplementary agreements made at the time of the treaty's conclusion or serving as a basis for interpretation.56 Paragraph 2 allowed interpretation to be supplemented by taking into account the travaux préparatoires or the subsequent practice of parties which could confirm or weaken the meaning given to certain terms. Subsequently these elements would be separated, with the travaux (p. 814) préparatoires relegated to the rank of subsidiary or supplementary (according to the point of view) means of interpretation while interpretative practice remained an element of the general rule of interpretation. 19. Article 72 put ‘effectiveness’ into a category of its own, even though the Special Rapporteur did not hide his hesitations about including a specific provision on this topic, or even merely mentioning it in the draft Articles.57 On the one hand, there was a fear that this notion would be confused with teleological interpretation and, on the other hand, it was considered that ‘good faith’ sufficed to produce effectiveness. Article 72 appeared redundant as it merely recalled that effectiveness should be compatible with the natural and ordinary meaning of the terms of the treaty, as well as with its object and purpose. Finally, Article 73 returned to the question of inter-temporal law already mentioned in Article 56 and Article 70(1)(b), but this time from the perspective of the influence of customary rules emerging after the adoption of the treaty, the conclusion of a subsequent agreement, or the development of a subsequent practice. Articles 74 and 75 finished off this panorama by covering the issue of treaties in several languages or several versions.58 20. It is true that this was a preliminary step in formulating a final set of draft Articles but the confused tangle, at which the ILC had at this stage arrived, evidenced the great difficulties

involved in putting together elementary rules for treaty interpretation. A sort of precautionary principle imposed itself and meant that only a limited number of legal principles on interpretation would be codified. Even so, this minimum would be subject to endless discussions, as proven by the 1966 phase during which the observations of States would be studied following a remodelling of the 1964 draft. 21. Following the report of 1964, new draft Articles were elaborated on until 1966. In its second version, the draft limited interpretation to three Articles (69 to 71) dealing respectively with the ‘General rule of interpretation’, ‘Further means of interpretation’, and the ‘Term taken according to a specific meaning’. It bears a closer resemblance to the final version which would nevertheless include numerous modifications. What is striking, at first glance, is the singular form that replaces, in Article 69, the plural of ‘General rules’ of the former Article 70. The reason—not formally disclosed—for placing ‘General rule’ in the singular in the title may well stem from the difficulty of perceiving unity in ‘Rules’ whereas the plural form hints at multiplicity and dispersion. 22. At that time, States made many proposals but these globally converged towards simplifying the Articles' presentation.59 The United States thus expressed a desire that ‘directing principles’ (and not ‘rules’) be set out successively in a single Article, leaving the door open for ‘other means of interpretation’. Certain governments (Israel, Hungary) wanted to give the travaux préparatoires the same status as subsequent practice as a means for determining the intention of the parties, whereas the draft placed the travaux préparatoires in Article 70 dealing with further means of interpretation. Finally, others (notably Greece) were wary of an order of priority in the statement of different means. The Special Rapporteur drew one certainty from this discussion—it would be impossible to codify in too rigid a manner—and warded off a popular criticism by pointing out that just as for Article 38 of the ICJ Statute, the order of enumeration would not entail a hierarchical (p. 815) order but simply a logical one.60 The singular in the title of Article 69 should therefore be taken to mean that interpretation involved a complex single operation.

References 23. Other more specific criticisms would arouse debate within the ILC, from which several precisions would emerge. Subsequent practice would remain an element in the central Article (provided that it established an understanding between all the parties), whereas travaux préparatoires would be relegated to the category of further means of interpretation.61 Ultimately, the issue regarding treaties in several languages attracted a great deal of attention. All these ingredients led to the draft Articles presented in the July 1966 report which, this time, were reduced to two Articles (Art. 27, which grouped together Arts 69 and 71, and Art. 28, corresponding to Art. 70 in the previous incarnation) on the general rule and further means of interpretation. The simplification was clear-cut (the draft evolved from five Articles to three in 1964 and henceforth two) and the result was slowly approaching the definitive version. The only division that subsisted was the one between principal means and further means of interpretation. Therefore, while hierarchy was erased within Article 27, it reappeared in the addition of another Article. It nevertheless seemed that a fairly clear vision of what was desired in relation to interpretation had been achieved. 24. Article 27 very clearly expressed a preference for textual interpretation, making the text the authentic expression of the parties' will. Paragraph 1 recalled the necessity of good faith interpretation according to the ordinary meaning of terms in the context of the treaty and in the light of its object and purpose. The context was then defined as systematically including the text, the preamble and annexes, as well as agreements made at the time of the conclusion of the treaty between the parties or other agreements accepted by the parties. Finally, paragraph 3 specified that account would be taken ‘at the same time as of the context’ of subsequent interpretative agreements, subsequent practice (accepted by all, even if only applied by some), and relevant rules of international law (which furtively reintroduced the issue of inter-temporal law, evacuated as such). The fourth and final paragraph of the Article dealt with the ‘special meaning’ given to a term by the parties (with the burden on the latter to prove this). Finally, Article 28 reintroduced a form of doubt by returning—in a covert manner —to a more subjective form of interpretation by taking into consideration, as supplementary means, the travaux préparatoires and the circumstances in which the treaty was concluded, when ambiguity or an absurd outcome resulted from use of the means of Article 27. The ‘exceptional’ character surrounding the use of this Article was made clear but a compromise had been reached and would be consolidated by the practice of States and international courts. It was on this basis that the debate would be opened at the Vienna Conference in 1968. 25. During the first session from March to May 1968, the dominant impression was that State representatives were returning to the doctrinal squabbles that the slow elaboration of the draft Articles seemed to have buried. The United States, represented by Professor McDougal, did not renounce their less rigid and more subjective vision of interpretation, and continued to propose the fusion of the two Articles into a single one in order to avoid instilling a form of hierarchy that evidenced little inclination to take into (p. 816) account the real intention of the parties (notably by placing the travaux préparatoires in the background or by placing the burden of proof upon the party invoking the ‘special meaning of a term’).62 Vietnam and Ghana, for example, backed up the United States but the mighty struggle between the primacy of the text and that of the subjective intention of the parties was also raised by other representatives, some siding more or less openly with the ‘camp’ of the ILC travaux. The Ukrainian representative thus regretted that the text was expressly privileged,63 whilst Uruguay (represented by Professor Jiménez de Aréchaga), Poland, Spain, Sweden, Argentina, and the United Kingdom, etc. declared themselves globally favourable to the ILC travaux.64 Apart from these oppositions, there were also those who maintained that codification of

interpretation was useless (such as Greece). France also declared itself favourable to the presented text for, no doubt recalling the words of Paul Valéry, it did not wish to give priority to subsequent motives.65 In the face of this opposition which appeared irreconcilable, the Expert Consultant Sir Humphrey Waldock attempted to ‘take the heat out of’ the doctrinal debate by bringing the ILC travaux back onto the terrain of practice itself. He notably justified the intended absence of hierarchy between the different methods of interpretation, the noninclusion of inter-temporal law as this was too vast a question which affected all the relationships between the law of treaties and customary law, and also indicated that the ‘special meaning of a term’ was ultimately no different from the ‘natural meaning’ in a special context, a skilful way of turning around the argument.66 26. The debate would barely move beyond that stage, except for several minor modifications, and the future Article 31 would correspond well to draft Article 27 as it had been defined. Finally, the three Articles on interpretation would be adopted unanimously during the second session of the Conference, on 6 May 1969.67 27. Following this chaotic elaboration, Article 31 leaves several aspects unclarified which have not been resolved in the meantime due to a lack of capacity or will. Effectiveness is not mentioned as it is considered implicit in good faith, as well as in the statement on interpretation in the light of the object and purpose of the treaty—an absence that leaves the possibility open for an interpretation with a teleological leaning. Inter-temporal law is also ousted to avoid presumption in favour of the rule in force at the time when the treaty was concluded or interpreted. Silence also surrounds the adage according to which ‘restrictions to independence cannot be presumed’, no doubt because its connotations were too strong despite a basis in case law. Otherwise, the ILC contented itself with following the paths signposted by case law and practice (the ‘context’, for example, clearly corresponds with case law trends). Perhaps its most significant innovation resides in its affirmation of the singular for the title of Article 31, a way of preventing the establishment of a hierarchy in favour of a single but complex operation. Nevertheless, the (p. 817) separation from the means codified in Article 32 implies that the supplementary means are first and foremost subsidiary.

B. An overwhelming practice 28. Practice flowing from Article 31 is difficult to circumscribe because there is such an overwhelming amount of it on the part of States, international organizations, and domestic or international courts. It is thus impossible to make any claims of providing here a thorough analysis of practice. We can only—by means of a ‘survey’—observe that all subjects and players in international law seem to conform to the letter and spirit of this provision, notwithstanding divergences springing from the choices that methods of interpretation allow. As the result par excellence of a consensus, the provisions of Article 31 allow enough latitude for all bodies to draw on their own method. This implies that the possible means for arriving at a certain interpretation are numerous. Thus, effectiveness (itself a mixture of the criteria of the object and purpose and of the principle of good faith), the object and purpose of the treaty, or a directly teleological approach (such as that of the ECJ) can—depending on the interpreter —allow for an ends-focused interpretation. Clearly, object and purpose are often confused with effectiveness, while the whole process commands a teleological approach. In the same way, for inter-temporal law or the intention of the parties, the provisions of Article 31 allow several ‘openings’, and it is sometimes difficult to find a specific aspect standing out in case law. Finally, while textual interpretation tends to flow from Article 31 and intentional interpretation from Article 32, the divide is far from clear-cut: other than the fact that numerous aspects of Article 31 can lead towards an analysis of the intention of the parties, paragraph 4 seems to make a connection between the two Articles. This is the observation that we are going to examine here by proceeding on the basis of the provisions of Article 31.68 It must nevertheless be pointed out that, by definition, this practice only relates to unilateral or adjudicative interpretations that are in reality the main—or even the only—ones targeted by the Vienna Convention. When one reduces the scope of Article 31, one notices that practically the only interpreters concerned are judges to whom the States or organizations delegate ‘le règlement de leurs prétentions contradictoires’.69 Once again, therefore, the case law of the principal international courts will be the main indicator of this practice.70 Focus will be placed on this case law because it has largely inspired the practice of States, which is impossible to circumscribe.

The basis of interpretation (paragraph 1) 29. Paragraph 1 remains the foundation of the method of interpretation: good faith,71 the ordinary meaning of terms, the context, and the object and purpose of the treaty are (p. 818) gathered here in order to secure a soundly-based interpretation. Despite the fact that these elements may appear obvious, it is striking to notice to what extent practitioners of interpretation do not hesitate to refer to it. Nevertheless, it must be noted that good faith should cover, in the spirit of the ILC travaux, the rule of effectiveness which, as already indicated, no longer appears expressly in Article 31. One is actually confronted with different realities: while good faith—a largely meta-legal element—is a notion that applies above all to the parties to treaties, effectiveness is instead derived from the method followed by the judge. 30. Paragraph 1 thus consists of a statement followed by specifications that by themselves can give rise to multiple interpretations and lead to vastly different results. As some authors correctly put it: Dans cette phrase se trouvent énoncés à la fois un principe de portée absolument général et plusieurs règles, qui sans doute peuvent toutes être considérées comme découlant de ce principe, mais dont la mise en œuvre, normalement complémentaire, 72

peut parfois conduire à proposer de donner des sens différents aux termes du traité.72 31. Cautious by nature, the major international courts have unceasingly relied on this basis. The case law of the ICJ provides a good illustration. Hence, the judgment of 12 November 1991 in the case of the Arbitral Award of 31 July 1989 (Guinea-Bissau v Senegal) recalled that textual interpretation should prevail according to ‘the natural and ordinary meaning [of provisions] in their context’, and that it is only if the words ‘are ambiguous or lead to an unreasonable result [that the Court should,] by resort to other methods of interpretation, seek to ascertain what the Parties really did mean when they used these words’.73 The judgment of 14 June 1993 on the Maritime Delimitation in the Area between Greenland and Jan Mayen also emphasized the necessity of reading a treaty ‘in its context, and in the light of the object and purpose’.74 But it was perhaps in its judgment of 3 February 1994 on the Territorial Dispute between Chad and Libya that the Court most forcefully recalled the rules on interpretation of treaties when applying them to the interpretation of the agreement of 10 August 1955 between France and Libya, which served as a basis for the judgment: The Court would recall that, in accordance with customary international law, reflected in Article 31 of the Vienna Convention on the Law of Treaties, a treaty must be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose.75 It is not possible to be more explicit than this. The Court applied this method to reject supplementary means of interpretation which it perceived as useless in this particular case and sought to give an effet utile to the treaty. The primacy of textual interpretation if the treaty is clear is moreover a leitmotiv that the Court has not hesitated to repeat each time the opportunity has arisen, that is to say, frequently. One finds this statement once again in the judgment of 15 February 1995 in the case of the Maritime Delimitation and Territorial Questions between Qatar and Bahrain (p. 819) (Jurisdiction and Admissibility)76 and in the judgment of 12 December 1996 in the case of Oil Platforms between Iran and the United States.77 Another strikingly clear illustration emerged from the case of Kasikili/Sedudu Island between Botswana and Namibia where the principles of Article 31 were confirmed as being applicable as customary international law, although neither State was a party to the 1969 Vienna Convention.78 This allowed the Court to use the methods of the Vienna Convention to interpret a treaty dating back to 1890, a situation that raises some problems of inter-temporal law. In many respects, this judgment constitutes a pedagogical and reasoned application of methods of interpretation as they are set out by Article 31. But beyond this, the lesson is simple: it serves little purpose to examine other aspects of interpretation if the treaty text is clear. In this case, it suffices to follow the ordinary meaning of the terms. Subsequently, the cases of LaGrand79 and Avena,80 as well as those relating to the Israeli Wall81 or the Application of the Convention on Genocide,82 also provided opportunities for the ICJ to reconfirm its attachment to paragraph 1 of Article 31.

References 32. The International Tribunal for the Law of the Sea has not departed from this constant for, since its initial judgment in the M/V ‘Saiga’ Case of 4 December 1997, it has examined its own jurisdiction by relying on a literal interpretation of the Montego Bay Convention, then proceeding to an interpretation of Articles 290 (provisional measures) and 292 (prompt release) for the needs of the case in question.83 Even if the Tribunal does not expressly mention the Vienna Convention, it draws wide inspiration from the latter when determining the ‘context’ in which it should interpret certain provisions of the Convention on the Law of the Sea.84 In the MOX Plant case, the Tribunal furthermore considered that: the application of international law rules on interpretation of treaties to identical or similar provisions of different treaties may not yield the same results, having regard to, inter alia, differences in the respective contexts, objects and purposes, subsequent practice of Parties and travaux préparatoires85 (p. 820) thus showing its attachment to rules of interpretation codified elsewhere.86 In the famous Tadic case,87 the International Crime Tribunal for the former Yugoslavia (ICTY) widely used the methods of Article 31 for a quite specific purpose: to justify its own existence in relation to its act of establishment. Its subsequent case law also borrowed on several occasions from the methods listed in Article 31, notably by referring to interpretation in harmony with the object and purpose of its Statute.88 However, the Tribunal also referred explicitly to the Vienna Convention to interpret its Statute,89 a not entirely problem-free move as this Statute is not a treaty but results from a Security Council resolution. In this respect, the ICTY operated largely by assimilation, notably because the Statute itself reproduced the content of some provisions that originated in multilateral treaties.90 By imitating the ICTY, the same attitude has been taken by the International Crime Tribunal for Rwanda (ICTR), since the judgment of 18 June 1997 in the case of Joseph Kanyabashi91—a replication of the ICTY's Tadic decision. In turn, the ICTR expressly invoked Article 31 of the Vienna Convention to justify a method of interpretation according to the ordinary meaning of the terms of its Statute.92

References 33. Reference to the 1969 Vienna Convention is almost an automatism for the Dispute Settlement Body (DSB) of the World Trade Organization (WTO). There exists practically no other option since according to Article III: 2 of the Understanding on Rules and Procedures Governing the Settlement of Disputes, the rules of the WTO should be interpreted so as ‘to

clarify the existing provisions of those agreements in accordance with customary rules of interpretation of public international law’. There are thus barely any cases where this reference is missing from reports of the Appellate Body,93 since the procedure has been legitimated in this way although this procedure may not always be justified in respect to Article 31. Since the Gasoline case in 1996, the Appellate Body has refused to isolate the rules of the General Agreement (GATT-94) from other rules of interpretation in public international law, by stating that ‘the General Agreement is not to be read in clinical isolation from public international (p. 821) law’.94 Through multiple references to the case law of the ICJ and to doctrine, the DSB has earned a reputation for strictly complying with existing international rules on the law of treaties as codified in 1969. It was in this light that the Appellate Body explicitly recognized the Vienna Convention as expressing customary law.95 The Appellate Body would go as far as characterizing the Vienna Convention as a priority reference text for interpretation, thus implying that rules contrary to Article 31 would be rejected, notably when it comes to identifying the ordinary meaning of terms,96 or interpreting the meaning of the object and purpose of the treaty.97 The resulting impression is that there is a type of incantatory reference to this ‘sacred text’; this situation, however, does not necessarily imply that the ensuing reasoning always conforms strictly to this reference which, it must be said, leaves many doors open.98

References 34. Does this heartening unanimity come to an end when one examines the case law of regional international courts? Focusing on the two major courts in Europe, it appears that this is not the case, even if one of these bodies seems to use Article 31 flexibly. For the ECtHR, reference to—and consequently, application of—Article 31 appears indisputable. Since 1975, at a time the 1969 Convention was not yet in force, the Court expressly referred to Article 31, considering that it expressed ‘generally accepted principles of international law’.99 Its case law largely confirms this submission to Article 31. Whether in relation to the ‘context’ of the treaty,100 or the ordinary meaning of terms in (p. 822) the light of the object and purpose of the treaty,101 the Strasbourg Court has been a ‘good pupil’ in the application of Article 31. The same cannot exactly be said of the ECJ which rapidly took a slightly off-track path or, to be more precise, privileged a teleological interpretation for Community treaties, whilst resorting to other possibilities when dealing with non-Community treaties. This means that there was hesitation to consecrate the customary character of the principles of Article 31 although the ECJ has been compelled to make use of the provision for Community treaties. Indeed, suspicion characterizes the attitude of the ECJ with regard to Article 31.102 The starting point may be found in the case of De Gezamenlijke Steenkolenmijnen in Limburg v ECSC High Authority of 23 February 1961, in which the Court rejected the ordinary meaning of terms in favour of the ‘Community meaning’ which it constructed itself.103 The ECJ naturally relied on the Vienna Convention in its opinion of 14 December 1991 by virtue of Article 228(1)(2) of the EEC Treaty, but only for the interpretation of a non-Community agreement.104 It did the same in contentious proceedings by distinguishing between Community treaties to which it attributed a ‘communitarian meaning’, as opposed to other international treaties.105 It was finally half-heartedly, and with an abundance of precautions, that it recognized certain provisions of the Vienna Convention as having customary value.106 However, when the opportunity presented itself, the Court did not hesitate to refuse international treaties the consequences that it attributed to Community treaties. Thus, concerning the WTO agreements ‘interpreted in the light of their object and purpose’, the ECJ considered that these did not determine the legal means appropriate for assuring their execution in good faith in the domestic legal order of States.107

References 35. This rapid and non-exhaustive survey demonstrates that the general statements of the first paragraph of Article 31 do not seem to have met with any resistance from international courts, except for the ECJ, which very early on developed a teleological interpretation in favour of Community treaties, often leading it to consider any other rule of interpretation as suspicious and liable to conflict with its own objectives. (p. 823) 36. The growing role played by international law in domestic law has often led domestic judges to focus more carefully on treaties and their interpretation. While Ministries of Justice were previously called to the rescue by way of preliminary procedure to formulate the State's ‘authentic’ interpretation, judges no longer refrain from interpreting treaties when this appears necessary. Of course, the degree of power of the domestic judge will depend on the prescriptions specific to each State according to the procedure for the treaty's introduction, its role in the hierarchy of norms, and the extent of its control in the application of the treaty.108 Thus to study this question in detail is out of the question. However, one may notice that the tendency—notwithstanding several significant counter-examples—is to recognize the domestic judge as competent for interpreting treaties, and that the judge generally does so in conformity with the international obligations of his or her State, according to a sound sense of logic.109 37. Domestic judges often use the methods provided for in Article 31,110 sometimes even making the effort to carry out interpretations in the text's official language. Nevertheless, the evaluation of this procedure will vary according to the system into which the treaty was received and the system in which it would eventually be transformed into domestic law. The example of France nevertheless evidences that this recognition was chaotic and remained subject to uncertainty. The French Conseil d'État displayed an ambiguous attitude, by considering that if the treaty was an ‘acte clair’, it was not necessary to ask for its

interpretation from the Ministry of Foreign Affairs. This would have been logical if the clarity of the act had not been the subject of (widely) differing appreciations. In this particular case, Community acts were often considered as ‘clear’, although evidence invited observations to the contrary.111 A certain coherence was found from 1990 onwards in France,112 for since that time, the administrative judge has been granted the possibility of interpreting treaties and can refuse to stay a ruling when he or she considers being able to make it him or herself. This attitude raises another problem: does the domestic judge possess a real competence (in the professional sense) to do so, and does he or she use the right methods for interpretation? One has to admit that the answer is extremely variable.

References

Taking into account the ‘internal’ context (paragraph 2) 38. The way in which context is taken into consideration in interpretation is sometimes difficult to determine, for the general formula used—‘the context’—refers as much to the context globally referred to in paragraph 1, as to the context specified in paragraph 2. Moreover, sub-paragraphs (a) and (b) of paragraph 2 have only given rise to a relatively limited number of case law applications, since this type of agreement is more widespread and less specific than subsequent interpretative agreements (which are mentioned in (p. 824) para. 3). This is the reason why context is often mentioned without going into great detail: it is considered obvious when it is understood to include the text, preamble, and annexes of the treaty. Moreover, the context is sometimes understood as being ‘the state of mind’ in which a certain provision should be envisaged. In this case, it does not refer to objective elements but rather to the intention of the parties. This does not mean that agreements included in the context do not exist. On the contrary, these are numerous.113 This being the case, and as the reader will no doubt have noticed, it should once again be noted that the line of division between ‘context’ in Article 31 and ‘the circumstances in which the treaty was concluded’ in Article 32 is not always clear.

References 39. We have already had the opportunity to point out instances of context in the case law of the ICJ.114 These are most often general and imprecise statements, such as the one consisting in declaring that the agreement ‘should be read in its context, in the light of its object and purpose’.115 Nevertheless, the Court has had the opportunity, in certain cases, to apply the reference to supplementary agreements found in paragraph 2 of Article 31. Thus, in the Territorial Dispute case, the Court used the Convention of Good Neighbourliness concluded between the parties at the same time as the relevant treaty in this particular case. This Convention of Good Neighbourliness confirmed the interpretation that the Court made of the principal treaty, and therefore reinforced its finding.116 Moreover, in the case relating to the Sovereignty over Pulau Ligitan and Pulau Sipadan, the Court had the opportunity to specify what it understood by an ‘instrument related to the treaty’ in sub-paragraphs (a) and (b) of paragraph 2 in Article 31. The Court refused to attribute this character to some documents presented as such by Indonesia, which it deemed to be mere internal documents of the Dutch government at the time when the treaty was concluded.117

References 40. The International Tribunal for the Law of the Sea also relied on the context of the 1982 Convention to deduce that Article 292 (prompt release procedure) should be interpreted as an independent procedure.118 In the Blaškic case, the ICTY referred to the context of the provision in question of the 1977 Protocol to the 1949 Conventions, in order to characterize the conflict in the former Yugoslavia.119 As for the DSB, in its quest for an interpretation as faithful as possible to the principles of Article 31, it has made fairly (p. 825) abundant use of the reference to the context,120 sometimes with a more specific reference, such as that of the preamble to an agreement which was used to interpret Article 12 of the Agreement in the Hormones case.121 It should also be noted that reference to the context was used to point out the gaps in a Panel report when the Appellate Body considered its usage necessary,122 or when it was essential to refer to the ‘most relevant’ document for interpreting the text.123 In the Gambling case, the Appellate Body furthermore specified quite restrictive conditions in which certain documents could be qualified as context in the meaning of sub-paragraphs (a) and (b) of paragraph 2 of Article 31, thereby criticizing the reasoning followed by the Panel on this point.124

References 41. International courts with a regional vocation provide no shortage of examples. The ECtHR has made ample use of context which it frequently explains in detail, as in the Golder case where it clearly indicated that the preamble is part of the context, given that the preamble is ‘generally very useful for the determination of the ‘object’ and ‘purpose’ of the instrument to be construed'.125 More recently, in the Saadi case, the Court considered that it should have regard to the fact that the context of the provision is a treaty for the effective protection of individual human rights and that the Convention must be read as a whole, and interpreted in such a way as to promote internal consistency and harmony between its various provisions.126

The Court has thus frequently interpreted a provision in its context, often referring to this principle in the process.127 As for the ECJ, following its reasoning previously set out, it logically distinguishes between the context in which an international agreement is set and the context in which Community objectives are pursued.128 The context is then envisaged in a wider manner since it includes the whole of Community law, including secondary law.129

References

Taking into account the ‘external’ context (paragraph 3) 42. Paragraph 3 refers more directly to means which are not characterized as ‘supplementary’, in that they are considered ‘at the same time as the context’, but which are (p. 826) nevertheless inscribed into a logical order of consideration in the absence of a clear solution based on the means of interpretation enunciated in the previous paragraphs. Subsequent interpretative agreements, subsequent practice, or reference to relevant rules of public international law therefore seem more in the order of confirmation rather than assertion. This is why their use is unequal in case law with, nevertheless, a certain predilection for the subsequent practice of the parties to the treaty. According to doctrine and practice,130 this subsequent practice reflects what the parties intended. This is therefore a matter of reintroducing the intention of the parties to allow the definition of an objective that remains vague in the text, but only if practice is concordant and common to all parties. Pushed to the extreme, this approach could lead to modifications of the treaty. This is a type of treaty ‘pathology’ which was discussed at length during the ILC travaux under the names of ‘modifying practice’ or ‘repealing practice’. There exists an uncertainty in this domain, of which the case law seems to be wary, though it is not completely rejected by certain courts.131 43. The idea of confirmation is clearly expressed in the case law of the ICJ. Thus, in its 1984 judgment in Military and Paramilitary Activities, the Court observed that its vision of the interpretation of Article 36(5) of its Statute was ‘confirmed by the subsequent conduct of the Parties to the treaty in question, the Statute of the Court’.132 Similarly, in the case opposing Indonesia and Malaysia over the Sovereignty over Pulau Ligitan and Pulau Sipadan, the Court proceeded to analyse the subsequent practice of the parties at length but did not recognize in this practice a ‘confirming’ role in the interpretation of Article IV of the 1891 Convention.133 Furthermore, the expression ‘subsequent practice’ is sometimes understood in a broad sense, to include unilateral acts as well as subsequent (non-interpretative) agreements.134 At times, the Court has also studied this practice before ruling out its existence, notably in the case of a long-established treaty. This is the approach taken by the Court in the Kasikili/Sedudu Island case.135 However, the Court has refused to examine such practice if the absence of a provision in the treaty prevents it from judging this practice. In other words, in order to examine its subsequent practice, there must nevertheless be a provision allowing it to be evaluated.136

References (p. 827) 44. Other tribunals have followed—mutatis mutandis—a similar path. The International Tribunal for the Law of the Sea has made a direct—though ambiguous—use of subsequent interpretative agreements. In the judgment of 1 July 1999 in the case of the ‘Saiga’, the Tribunal drew on the 1993 agreement aiming to privilege respect of international measures for the conservation and management of fish stocks by ships on the high seas, as well as the 1995 New York agreement on straddling and migratory fish stocks characterized as an ‘implementation’ agreement of the 1982 Convention, to confirm its interpretation of an agreement. In this particular case, as these agreements were not in force, the Tribunal expressed doubts about this means of interpretation.137 The subsequent practice of the Security Council and of members of the United Nations was abundantly drawn on by the ICTY in the Tadic case to confirm that an armed conflict, even internal, can fall within the qualification of Article 39 of the Charter as a ‘threat to the peace’.138 As for the DSB, it used the technique of confirmation by subsequent practice in the Alcoholic Beverages case, with regard to the practice of Panel Reports at the time of the GATT-47 (in which it distinguished between adopted and non-adopted reports), confirmed by the subsequent practice of the contracting parties.139 Inversely, the DSB dismissed examination of subsequent practice, either because it was not uniform, and hence not relevant,140 or because the lapse of time was too short to observe a genuine relevant practice.141 As for interpretative agreements, these would be judged according to their obligatory force for those subject to the agreements, as shown by the Hormones case.142 One may therefore notice a certain amount of prudence on the part of the DSB in this domain.143

References 45. The ECtHR, for its part, has referred very widely to agreements or to the subsequent practice of the parties to a treaty. It has done so, for example, in its interpretation of Article 14 of the European Convention on Human Rights,144 by referring to the European Convention of 15 October 1975 on the legal status of children born outside wedlock with regard to the European Convention on Human Rights,145 or concerning (p. 828) confirmation by practice of the Convention in general.146 At the same time, the ECtHR has shown that it can reject subsequent practice if it does not prove conclusive,147 or simply relativize it.148 Its evaluation of subsequent practice nevertheless remains fairly flexible since the Court does not demand, in order to take it into consideration, that the practice be followed ‘unanimously’ by the contracting parties, but merely by a ‘great majority’ of the latter.149 As far as the ECJ is concerned, this Court has made moderate use of the subsequent practice of parties for it

clearly privileges a teleological and ends-focused interpretation which minimizes this practice in favour of the intentions underlying Community treaties. It has even dismissed this practice if it is contrary to its vision of the treaties.150 Nevertheless, it is possible to find use of this technique in certain cases, such as International Fruit Company and others of 1972.151

References 46. Case law reveals that subsequent practice is classified as an element for the interpretation of a treaty, but that it is out of the question to envisage an amendment or a termination of the treaty by lapse, with the help of this procedure—an approach confirmed by the ICJ in its judgment of 1997 in the Gabčíkovo-Nagymaros Project case.152

References 47. As for Article 31(3)(c), which allows interpretation to be situated amongst the relevant rules of international law, the ECtHR has long seemed to be one of the few courts to make explicit use of it. Since the Golder case, the Court has thus referred to the general principles of law as envisaged by Article 38 of the ICJ Statute, in order to interpret Article 6(1) of the Convention.153 Ever since, there have been numerous examples where the ECtHR has drawn from the international normative environment with the aim of interpreting the Convention.154 Today, however, it is no longer the only court to do so. In its judgment of 6 November 2003 in the case of the Oil Platforms opposing Iran and the United States, the ICJ decided to interpret Article XX of the Friendship Treaty concluded between these two States in the light of the ‘relevant rules of international law on the use of force’, in conformity with Article 31(3)(c) of the Vienna Convention.155 In the same way, without expressly mentioning this Article, the DSB has always insisted on (p. 829) the fact that the General Agreement should not be read ‘in clinical isolation from public international law’.156 Yet even though Article 31(3)(c) has not been totally forgotten, the DSB nevertheless applies it moderately.157 This provision however appears essential in the opinion of some authors who regret its ‘under use’, since it would in fact allow the ‘operationalization’ of the link between conventional international law and customary international law, and thus, the avoidance of fragmentation in international law.158

References

Reintegration of the intention of the parties (paragraph 4) 48. The Vienna Convention places priority on textual interpretation. Nevertheless, as reflected by the history of the ILC travaux, proponents of interpretation based on the intention of the parties (or ‘subjective’ interpretation) have not surrendered. Moreover, it is not always obvious in practice to distinguish between the ‘declared’ intention of the parties resulting from a reading of the text, and the search for the true intention of the parties, a much more subjective exercise. The compromise represented by Article 31 therefore makes space for the intention of the parties in a somewhat subsidiary manner, but that space has proven crucial for certain courts. Indeed, while logic may imply that the discovery of a ‘special meaning’ should lead to an analysis of the intention of the parties, the reality is sometimes limited to affirming the existence of a ‘special meaning’ to privilege this intention, without always paying attention to the veracity of this specificity. The ECJ has notably been a fine example of this approach. 49. In conformity with its line of conduct privileging textual interpretation, the ICJ has accorded minimal space for the intention of the parties. The Court has applied this method in a strictly supplementary manner in order not to give fodder to critics. Therefore, in the case of the Land, Island and Maritime Frontier Dispute of 1992, the Court sought the intention of the parties in the 1980 general Peace Treaty referred to by the Special Agreement bringing the case before the Court. As the Special Agreement contained several vague provisions, the Court did not hesitate to ‘have regard to the common intention as it is expressed in the words of the Special Agreement’, while continuing to underline that this analysis should ‘constitute no more than a supplementary means of interpretation’.159 Nevertheless, it did not hesitate to seek the intention of the parties in order to confirm an interpretation;160 a relatively prudent approach which has been (p. 830) followed by other international courts. We can point to only one fairly clear reference to the intention of the parties in the context of the ICTR to confirm the interpretation of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide,161 or scant examples from the case law of the DSB where this has proven necessary.162

References 50. The intention of the parties to determine a special meaning for a term has ultimately been more frequently used in the European case law, no doubt because common intention is easier to pin down in the more limited and uniform European context. The ECtHR thus rapidly identified an ‘autonomous character’ in a large number of the Convention's provisions, many of these being attached to Article 6,163 but also in other Articles of this treaty as well as its Protocols.164 It is hardly surprising that the ECJ has made considerable use of the ‘special meaning’ to give to a term since its case law is largely based on the specificity of ‘Community meaning’. From 1961 onwards, that is to say, before the adoption of the Vienna Convention, the Court began to develop its case law, which would widen towards a teleological approach.165 It then had the opportunity on several occasions to confirm the ‘Community’ meaning of words.166

References

Silences, implications, and gaps in Article 31 51. A reading of the travaux préparatoires of Article 31 clearly demonstrates that in the interests of obtaining an acceptable compromise, certain principles were not expressly included in the final version of the Article. Effet utile was considered as implicit, the boldness of teleological interpretation was too overwhelming, inter-temporal law was deemed too complex to integrate, and the presumption in favour of the State in the process of interpretation met with tenacious resistance. Nevertheless, it is remarkable that the practice of interpretation, notably that of international courts, has overlooked these silences or gaps to integrate some of these elements as if they had been mentioned in Article 31. This is particularly true for teleological or ends-focused interpretation, of which certain courts have become ardent proponents in the context of constituent treaties of international organizations (the ECJ is the prime example). (p. 831) It is fitting to recall that these different ‘incursions’ can take place by different means, and that there exists no clear schema orchestrating the mechanisms foreseen by Article 31 and those simply induced. Each court has managed to find an angle allowing it to confirm its solution according to the legal syllogism that it has chosen and that it manipulates to this end. 52. Effet utile—the principle ut res magis valeat quam pereat167—which it was feared, during the elaboration of the Convention, would develop into a stepping stone to teleological interpretation, has been mentioned in numerous decisions of international courts. In these cases, it has emerged that effectiveness can be used widely in a simple appeal to logic, or it can serve as a lever towards a broader interpretation. The ICJ has often sought to support preceding statements by relying on effectiveness, as a type of confirmation.168 The Court thus made careful use of the concept in the case of the Territorial Dispute between Chad and Libya,169 and in that of Kasikili/Sedudu Island.170 The ICTY, on the other hand, has used the concept to provide a wide interpretation of some notions, such as torture or rape.171 Conversely, the ICTY judged that a provision of its Regulations was deprived of effectiveness (and therefore that it was not necessary to use it) because of the attitude of Yugoslavia.172 However, amongst the courts with a universal vocation, it is perhaps the DSB that stands out by a quasi-systematic usage of effet utile. It is often invoked to support the search for the meaning of a treaty, as in the Alcoholic Beverages, Underwear, Poultry, and Shrimp cases, as well as the Cotton case.173 Effectiveness was also implicitly invoked in the Hormones case to narrow down the interpretation sought of an Agreement on the application of sanitary and phytosanitary measures (‘SPS Agreement’).174 The concept has also recurred in the case law of the ECtHR, in the often-cited formula according to which the European Convention aims to protect ‘rights that are not theoretical or illusory, but practical and effective’,175 or in the theory of ‘elements necessarily (p. 832) inherent to a law’.176 The ECtHR has also referred to the principle of effectiveness more directly in the Mamatkulov case, to support its interpretation of the scope of provisional measures,177 and in various other cases to underline that the ‘effectiveness’ of Article 6(1) of the Convention can be ‘seriously diminished’ as a result of the non-execution of a definitive court judgment.178 Even though the ECJ has also invoked effectiveness in numerous cases, it goes beyond the stage of merely applying this means to favour ends-focused interpretations.179

References 53. It is in fact teleological or ends-focused interpretation that has been more or less explicitly the focal point of numerous decisions. Apart from Article 31,180 this method of interpretation has lost none of its power thanks to certain courts that have transformed it into a veritable leitmotiv. In its 1971 Opinion concerning Namibia, the ICJ broadly interpreted the Charter provisions so that the General Assembly was able to exercise certain powers.181 In the same way, in its 1996 Opinion on the Legality of Nuclear Weapons, a long passage was dedicated to the constituent treaties of international organizations and their speciality notably linked to their ensuing implicit powers.182 In the LaGrand case, the Court also relied on endsfocused considerations to affirm the obligatory character of provisional measures provided for in Article 41 of its Statute.183 The Court therefore seems to take into account teleological interpretation in the context of international organizations, a position that it instigated in its 1949 Opinion, and that it temporarily questioned during the famous South West Africa case in 1966.184 It also relied on this method to put forward a wide interpretation of Article 1 of the 1948 Convention on genocide and confirm that ‘the obligation to prevent genocide necessarily implies the prohibition of the commission of genocide’, although this implication is not specified by the text.185 Regarding the agreement transferring to the International Tribunal of the Law of Sea the settlement of a dispute initially submitted to an arbitral tribunal, the Tribunal also interpreted the possibilities of this agreement broadly according to a teleological method.186 The Tribunal also had direct recourse to teleological interpretation, for (p. 833) example in the Camouco case.187 As for the ICTY, ever since it has begun to function, it has distinguished itself with teleological interpretation which it has principally used to justify its own existence.188 It was also thanks to this method that this Tribunal arrived at a wide interpretation of the concept of protected persons in Article 4 of the Fourth Geneva Convention.189 The ICTY has sometimes demonstrated a degree of reservation in its vision of implicit powers, notably when it reaches certain limits, as in the Blaškic case.190 The DSB also immersed itself, though somewhat timidly, in the sphere of ends-focused interpretation, with the help of the concept of effectiveness when the opportunity arose.191

References

54. However somewhat unsurprisingly, it is within the European sphere that a visceral attachment by certain courts to teleological interpretation can be found. The ECtHR uses teleological interpretation for the purpose of confirming, in the sense that it sometimes uses this means to prove that its textual interpretation is correct. It was thus that the Court proceeded in the cases of Schiesser, Pretto and others and Johnston and others,192 in which it confirmed textual interpretation using the object and purpose, the travaux préparatoires, and the ends of the text. Providing a type of summary of the methods of interpretation and the objectives of the Convention, the ECtHR offered a resolutely dynamic and ends-focused vision in the case of Loizidou v Turkey.193 It was also on the basis of a teleological approach that, in the Mamatkulov case, the Grand Chamber confirmed the obligatory character of temporary measures ordered by the Court,194 inspired by the ICJ in the LaGrand case. As far as the ECJ is concerned, it would no doubt be fastidious (and not necessarily constructive) to cite the decisions which depend on a teleological approach for this means has been, for several years now, a well-known characteristic of this jurisdiction, allowing the Court to build a considerable proportion of Community law. The broad and teleological interpretations made by the ECJ in the judgments of Van Gend en Loos v Administratie der belastingen, Costa v ENEL, and Commission v Council (AETR), are well known.195 In the latter case, the Court established a link between effectiveness and implicit powers to produce an ends-based interpretation. Later (p. 834) cases confirmed this reasoning, each time putting forward the idea that teleological interpretation should preside over literal interpretation,196 while being combined most of the time with a systematic interpretation (a method qualified as ‘teleo-systematic’). It thus appears that the ECJ has turned the objectives of Community treaties into real principles of interpretation for these treaties.197

References 55. After attempting to sum up in its draft Articles—which were not consistently clear—the issue of inter-temporal law, the ILC finally cast this aspect aside. It therefore fell upon the courts to fill in the gap. Quite clearly, the courts have established in their case law different means allowing this delicate problem to be tackled. These means were at times cumulative, at times alternative: essentially consisting of the techniques of ‘fixed reference’ or ‘mobile reference’. These techniques are lodged within the problematic of evolutive interpretation, of which the mention of effectiveness was already a precursory sign. During the South West Africa case, the ICJ wished to situate itself exclusively at the date of the situation prevailing at the time the mandate was established.198 However, this rigidity would rapidly give way to more flexibility, as proven in the 1971 Opinion on Namibia where, on the same point, the Court favoured the evolution of rules, and therefore mobile reference, to interpret Article 22 of the Covenant of the League of Nations ‘within the framework of the entire legal system prevailing at the time of the interpretation’.199 The Court confirmed its position distinctly in the case of the Aegean Sea Continental Shelf by interpreting a provision as it should be understood at the time of the conflict and not at the time when it was drafted.200 Recent case law does not seem to contradict this evolution,201 provided that transformations in the law are genuine, that they are accepted by the parties, and that a form of opinion juris in favour of this evolution has already emerged (nonetheless without a need for the recognition of a genuine customary norm requirement which, if this were the case, would be imposed in any event). Other international courts have also followed the way of evolutive interpretation. This was the case of the DSB which in the Shrimp case had the opportunity to interpret in an evolutive manner, on the basis of effectiveness, the concept of exhaustible natural resources in the light of the prevailing law.202

References 56. It is perhaps the ECtHR which has made the greatest use of evolutive interpretation, doing so in numerous domains. In its judgment in the Guzzardi case of 6 November 1980, the Court considered that: ‘the Convention is to be interpreted in the light of the notions currently prevailing in democratic States’.203 Equally clearly, it considered in 1990 (p. 835) that the treaty should ‘reflect…societal changes’.204 In 2005, in the Mamatkulov case, the Court once again recalled that the Convention is ‘a living instrument which must be interpreted in the light of present-day conditions’.205 Furthermore, while evolutive interpretation seemed initially to necessitate a consensus between all States parties to the European Convention,206 case law today reflects the particularly constructive character of this method of interpretation as it is used by the Court, which sometimes anticipates this consensus.207 Finally, it should be of little surprise that the mobile reference method has been taken up by the ECJ, as it is a concept supplementary to the Court's ends-focused vision.208

References 57. Article 31 also left aside the traditional adage according to which ‘restrictions upon the independence of States cannot be presumed’, a proactive adage which case law has had the opportunity to recall (notably in the Lotus case before the PCIJ in 1927). The postulates which have prevailed in the post-war UN model have forced this statement into the background, even if it continues to be an underlying principle. At the very least, this type of maxim has been pronounced less easily; it has taken several specific occasions for this adage to resurface (often in a sweetened form), possibly stemming from the principle of good faith since ‘no presumption can be made on bad faith’, meaning that a State is always presumed to act in good faith. In 1974, the ICJ, confronted by the delicate problem of the French Nuclear Tests, considered that French declarations should be interpreted in a restrictive manner. What became evident, however, was that this precaution was a means to confront the State with its

own declarations: it operated as a type of precautionary principle to more effectively bring the State face to face with its obligations.209 As for the ECtHR, it has used an a contrario reasoning to consider that the postulate should be inversed when dealing with the European Convention on Human Rights,210 thus allowing it to follow a narrow interpretation of restrictions to the rights guaranteed by the Convention.

References 58. The rules of interpretation are subject to controversies. This explains the stormy debates and the lack of clear-cut position resulting from the travaux leading to the 1969 Convention. A compromise emerged whereby everyone would find argument to defend their own opinion: priority to the text but an underlying allowance for the intention of the parties in numerous passages, and an easy reintegration of ends-focused interpretation into (p. 836) the overall procedure. It is therefore necessary to point out that the Convention juxtaposes sometimes contradictory principles that can lead—by means of the same instruments—to very different conclusions.211 This is all the more true because different means of interpretation inevitably become the objects of interpretations which in turn will vary depending on the interpreter, the case, or the treaty, thereby giving commentators the impression of attempting to square a circle—and a vicious one at that.212 The absence of hierarchy between the different means of interpretation, their malleability, and the multiple ways of combining them, leave the door open to countless variations in this complex operation that constitutes treaty interpretation. Interpretation and legal integrity therefore at times seem antonymic, so great is the freedom left to interpreters who are left ample room to demonstrate creativity in their handling of texts.213 These aspects probably explain why this basis and the codified methods have never really been questioned. Only the travaux préparatoires, because they are uncertain, unstable, and difficult to contest for States which join subsequently, have raised more lively debates.214 59. Reference to the 1969 Convention legitimates interpretation even if, once the reference is made, the result hardly corresponds to the method announced. Here, there no doubt exists a form of misunderstanding regarding the intentions of the ILC members during the elaboration of Article 31. It has become clear that codification has not exhausted the methods and techniques for treaty interpretation. Functioning as a mere guide, Article 31 has become a reference that must be cited, even if it will then be twisted. Courts act as if it is absolutely essential to build on its elements to construct any type of interpretation. Fully enshrined and set on high, this Article is nevertheless no more than a set of scattered principles which make no claims to exhaustiveness. 60. The form of unanimity that can ultimately be detected is not the product of chance. Other than the consensus already mentioned leading to Article 31, it is truly much more a matter of the art or spirit of subtlety, than a matter of legal technique. Here, rules are not ‘steadfast’— indeed, they cannot be so in a domain where individual judgment depends on a web of considerations, often tending towards subjectivity. The key is to understand the ‘truth’ of the treaty, its meaning, much more than to manipulate technical and contradictory legal norms. Methodological constraints are weak because the range is very wide and interpreters must set their own limits depending on their own (p. 837) purpose or position. What ultimately makes a difference is not the manner of interpretation but the competence of the one who interprets. The only possible conflicts are those between different non-hierarchical interpretations, as seems to be illustrated by certain tendencies amongst international courts, conflicts of which— wrongly for the moment—much ado is made.215 However, on this point, Article 31 remains silent and the absence of hierarchical order between ‘non-authentic’ interpreters must be noted.

References 61. As rightly pointed out by Michel Rosenfeld, in a post-modern society, all interpretations appear to be correct interpretations, that is to say, no more than interpretations; said otherwise, they are interpretations which merely correspond to the aspirations and interests of different social groups.216 In this way, everything depends on the opinion one may form of the interpretative phenomenon, on the interpretation of interpretation. * VALÉRIE BORÉ EVENO **

JEAN-MARC SOREL

Footnotes: 1 See the introduction to the present work for support for this observation. 2 Evidence of this can be found by consulting the impressive list of references concerning Arts 31 and 33 in ILR—Consolidated Tables of Cases and Treaties (vols 1–100), pp 800–1. This abundance urges the authors of this commentary to specify that no claims of exhaustiveness will be made here. Given the prolific nature of literature on, and practice of, interpretation, only a transversal analysis is possible. 3 Neither Art. 32 nor 33 will be dealt with here—except incidentally, given that for a time, the draft Articles of the ILC confused these stipulations—even if these three Articles ‘naturally’ form a single unit on the issue of interpretation. For these two Articles, see the commentaries specifically on Arts 32 and 33 in the present work. 4 Introduction au droit des traités (Paris: Armand Colin, 1972), p 103. 5 Quoted by M. K. Yasseen, ‘L'interprétation des traités d'après la convention de Vienne sur le droit des traits’, RCADI, 1976-III, vol. 151, p 15. 6 Confirmed by Nguyen Quoc Dinh, P. Daillier, and A. Pellet who qualify Arts 31–33 as a

‘remarkable synthesis’. Unofficial translation by the editor. Original text: ‘synthèse très remarquable’ (p 265, no. 170), adding: the body of arbitral awards and recent judgments moreover reflect the exceptional success of the provisions of the Vienna Convention on the Law of Treaties: they refer to it at least in an implicit manner and often explicitly, even if the parties to the dispute have not ratified the convention. (translation of the editor) L'ensemble des sentences arbitrales et des arrêts récents témoignent du reste de la réussite exceptionnelle des dispositions de la convention de Vienne sur le droit des traités: au moins de façon implicite et, très souvent, explicitement, elles s'y réfèrent même si les Parties au litige n'ont pas ratifié la convention. (Droit international public (7th edn, Paris: LGDJ, 2002), p 266, no. 170) 7 Unofficial translation by the editor. Original text: ‘dégager le sens exact et le contenu de la règle de droit applicable à une situation donnée’, ibid, p 253, no. 162. 8 Unofficial translation by the editor. Original text: Les controverses relatives à l'interprétation ne seraient pas si vives si elles ne traduisaient pas une lutte pour la maîtrise du système juridique, qui fait du processus interprétatif une variante de la lutte pour le droit. (J. Combacau and S. Sur, Droit international public (7th edn, Paris: Montchrestien, 2006), p 170) 9 Nguyen Quoc Dinh, P. Daillier, and A. Pellet, supra n 6, p 260, no. 168. 10 Recalled notably by G. Scelle, Précis de droit des gens (Paris: Sirey, 1932–34), vol. II, p 488. 11 See eg the statement according to which interpretation is a matter of ‘principles that must be understood as standards rather than rigid rules, so that it is true that it is a question of art and less than ever a question of science’, unofficial translation by the editor. Original text: ‘… principes qu'il faut comprendre comme des standards plus que comme des règles rigides, tant il est vrai que c'est d'un art qu'il est ici question et moins que jamais d'une science’, D. Alland (ed.), Droit international public (Paris: PUF, 2000), p 237. 12 S. Sur, L'Interprétation en droit international public (Paris: LGDJ, 1974), p 12. 13 See infra Section B. 14 This is what P.-M. Dupuy describes as the prima facie intention, specifying that it is now habitual to include, in treaties, Articles on the definitions of terms employed, Droit international public (8th edn, Paris: Dalloz, 2006), p 325. 15 See the examples cited infra Section B. 16 See infra para. 17. 17 See the examples cited infra Section B. 18 See the commentary on Art. 32 in the present work, as well as O. Corten, L'utilisation du ‘raisonnable’ par le juge international (Brussels: Bruylant, 1997), pp 45–56 and 309–10. 19 On this subject, see the comments of P. Daillier and A. Pellet (Nguyen Quoc Dinh), supra n 6, pp 263–4, no. 169. 20 See eg the demonstration in the Case Concerning Military and Paramilitary Activities in and against Nicaragua (Jurisdiction and Admissibility), Judgment of 26 November 1984, ICJ Reports 1984, p 407, paras 32–3. 21 YILC, 1964, vol. II, pp 52–65. 22 Harvard Law School, Research in International Law, Part III, Law of Treaties, Art. 19, p 946, quoted in ibid, p 53 (fn 253). 23 Lord A. McNair, Law of Treaties (Oxford: Clarendon Press, 1961), p 366, quoted in ibid, p 53 (fn 254). 24 Ann IDI, 1950, pp 433–4; Ann IDI, 1956, pp 358–9. The resolution adopted by the IIL on 19 April 1956 in Grenada was considered a remarkable synthesis since an accepted system of treaty interpretation did not previously exist (see M. K. Yasseen, supra n 5, p 11). 25 BYIL, 1957, vol. 35, pp 211–12. 26 YILC, 1964, vol. II, pp 54–5. 27 Series B, no. 2. 28 ICJ Reports 1947–48, p 57. 29 Advisory Opinion of 15 September 1923, Acquisition of Polish Nationality, Series B, no. 7; Advisory Opinion of 21 February 1925, Exchange of Greek and Turkish Populations, Series B, no. 10; order made on 19 August 1929, Free Zones of Upper Savoy and the District of Gex, Series A, no. 22. 30 Advisory Opinion of 16 May 1925, Polish Postal Service in Dantzig, Series B, no. 11; Advisory Opinion of 21 November 1925, Interpretation of Article 3, Paragraph 2, of the Treaty of Lausanne, Series B, no. 12; Judgment of 7 September 1927, Factory at Chorzow, Series A, no. 9; Advisory Opinion of 15 November 1932, Interpretation of the Convention of 1919 concerning Employment of Women during the Night, Series A/B, no. 50. 31 Again in the Advisory Opinion of 21 November 1925 previously cited; Advisory Opinion of 3 March 1928, Jurisdiction of the Courts of Dantzig, Series B, no. 15; Judgment of 22 July 1929, Serbian and Brazilian Loans, Series A, nos 20 and 21.

32 Advisory Opinion of 23 July 1926, Competence of the ILO to Regulate Incidentally the Personal Work of the Employer, Series B, no. 13; Judgment of 7 September 1927, Lotus, Series A, no. 10, in which the Court rejected the use of these travaux préparatoires if the convention is clear; judgment of 7 June 1932, Free Zones of Upper Savoy and the District of Gex, Series A/B, no. 46; in the previously cited Advisory Opinion of 15 November 1932 and in the Judgment of 17 March 1934, Lighthouses case between France and Greece, Series A/B, no. 62. 33 Notably in the Opinion of 15 November 1932 previously cited. 34 Advisory Opinion of 31 July 1930, Greco-Bulgarian ‘Communities’, Series B, no. 17; Advisory Opinion of 6 April 1935, Minority Schools in Albania, Series A/B, no. 64. 35 Advisory Opinion of 8 December 1927, Jurisdiction of the European Commission of the Danube, Series B, no. 14; Judgment of 10 September 1929, Territorial Jurisdiction of the International Commission of the River Oder, Series A, no. 23; Advisory Opinion of 15 November 1932 previously cited. 36 Notably in the Lotus case previously cited, but also in the Judgment of 6 December 1930 in the case of the Free Zones in Upper Savoy and the District of Gex, Series A, no. 24. 37 Advisory Opinion of 6 December 1923, Jaworzina, Series B, no. 8. 38 Notably in the Judgment of 9 April 1949 on the Corfu Channel, ICJ Reports 1949, p 4; and the Advisory Opinion of 18 July 1950 on the Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (second phase), ICJ Reports 1950, p 221. 39 Again in the Judgment previously cited on the Corfu Channel, and in the Advisory Opinion of 11 July 1950 on the International Status of South West Africa, ICJ Reports 1950, p 128. 40 In its Judgment of 26 May 1959, Aerial Incident of 27 July 1955 (Israel v Bulgaria), ICJ Reports 1959, p 127. 41 In its Advisory Opinion of 3 March 1950, Competence of the General Assembly for the Admission of a State to the United Nations, ICJ Reports 1950, p 4; in its Judgment of 27 August 1952, Rights of Nationals of the United States of America in Morocco, ICJ Reports 1952, p 176, in which it clearly included the treaty preamble in the context; in its Advisory Opinion of 8 June 1960, Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organisation, ICJ Reports 1960, p 150; in its Judgment of 26 May 1961, Temple of Preah Vihear, ICJ Reports 1961, p 17; and in its Judgment of 20 July 1962, Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), ICJ Reports 1962, p 151. 42 In the Judgment of 3 March 1950 previously cited, and in the Judgment of 21 December 1962, South West Africa, ICJ Reports 1962, p 6, in which it put into perspective the scope of this method. 43 In its Judgment of 28 May 1951 on the Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, ICJ Reports 1951, p 15; and in its Judgment of 1 July 1952, Ambatielos, ICJ Reports 1952, p 28. 44 The ‘famous’ opinion of 11 April 1949 on the Reparation for Injuries Suffered in the Service of the United Nations, ICJ Reports 1949, p 174, was of course the foundational act, but this tendency was continued in the Opinion of 13 July 1954, Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, ICJ Reports 1954, p 47, or the Opinion of 20 July 1962 previously cited. 45 Series A, no. 3, pp 50 ff, paras 11–15. 46 Cases 1 and 2/54, 21 December 1954, French Republic v High Authority of the European Coal and Steel Community and Italian Republic v High Authority of the European Coal and Steel Community, ECJ, ECR 1954–1955, vol. I, pp 13–14; Cases 3 and 4/54, 11 February 1955, Associazione Industrie Siderugiche Italiana (Assider) v High Authority of the European Coal and Steel Community and Industrie Siderurgiche Associate (ISA) v High Authority of the European Coal and Steel Community, ECJ, ECR 1954–1955, vol. I, p 69. 47 Case 8/55, 16 July 1956, Fédération charbonnière de Belgique v High Authority of the European Coal and Steel Community, ECJ, ECR 1956; Case 8/57, 21 June 1958, Hauts Fourneaux et Aciéries Belges v High Authority of the European Coal and Steel Community, ECJ, ECR 1958. 48 Case 30/59, 23 February 1961, De Gezamenlijke Steenkolenmijnen in Limburg v High Authority of the European Coal and Steel Community, ECJ, ECR 1961, p 19. 49 Award of 16 November 1957, RIAA, vol. XII, p 285. 50 See the examples cited infra (Section B) where the ICJ considered these as cases where pre-existing customary principles had been codified. The Judgment of 21 June 2001 in the LaGrand case confirmed this view as the Court declared that it made its interpretation here ‘in accordance with customary international law, reflected in Article 31 of the 1969 Vienna Convention on the Law of Treaties’, ICJ Reports 2001, p 501, para. 99. See also the Judgment of 31 March 2004, Avena and other Mexican Nationals (Mexico v United States of America), ICJ Reports 2004, p 48, para. 83; the Advisory Opinion of 9 July 2004, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Reports 2004, p 174, para. 94; and the Judgment of 26 February 2007, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia), ICJ Reports 2007, p 60, para. 160. 51 YILC, 1964, vol. II, pp 52–65. 52 On the complex evolution of Art. 31, see S. Rosenne, The Law of Treaties, a guide to the legislative history of the Vienna Convention (Leiden: Sijthoff; New York: Oceana, 1970), pp 216–18 (for the travaux of the ILC) and 218–19 (for the Vienna Conference).

53 YILC, 1964, vol. II, p 55. 54 Corresponding to Art. 1 of the ILC draft Articles, and to principles I to IV proposed by Sir G. Fitzmaurice. 55 This position is justified by old case law, such as the Grisbadarna case of 1909 (RIAA, vol. XI, pp 159 and 160), the North Atlantic Fisheries case of 1910 (RIAA, vol. XI, p 196), the Island of Palmas case of 1928 (RGDIP, 1935, p 172), or more recent cases, such as the case of Rights of Nationals of the United States of America in Morocco (ICJ Reports 1952, supra n 41, p 189). 56 Sub-paragraph (a) specifies: ‘any agreement arrived at between the Parties as a condition of the conclusion of the treaty or as a basis for its interpretation’, and sub-para. (c) specifies: ‘any other instrument related to, and drawn up in connexion with the conclusion of, the treaty’. In this regard, a certain confusion seems to exist between sub-paras (a) and (c) of para. 1. 57 YILC, 1964, vol. II, p 60, para. 27. 58 See the commentary on Art. 33 in the present work. 59 YILC, 1966, vol. II, pp 91–4. 60 Ibid, p 95, para. 4. 61 YILC, 1966, vol. II, pp 98–100, paras 18–20. 62 United Nations Conference on the Law of Treaties, 1st session, Vienna, 26 March–24 May 1968, Official Records, Summary Records, pp 181–2, paras 38–50. 63 Ibid, p 183, para. 54. 64 Lord Sinclair however was not opposed to a merger of the two Articles if the balance was maintained, ibid, p 193, para. 10. 65 Ibid, p 190, para. 47. For Paul Valéry, ‘Les seuls traités qui compteraient sont ceux qui se concluraient entre les arrière-pensées’, Regard sur le monde actuel (Paris: Folio Essais re-edn, 1945), p 30. 66 Ibid, pp 199–200, paras 66–74. 67 United Nations Conference on the Law of Treaties, 2nd session, Vienna, 9 April–22 May 1969, 13th session, 6 May 1969, p 61. 68 It is perhaps helpful to specify that we exclude from this presentation interpretative declarations explored in the context of the study on Articles concerning reservations to treaties (cf the commentaries on Arts 19–23 in the present work). 69 According to the expression used by D. Alland, supra n 11, p 237. 70 We have subjectively chosen to concentrate on the case law of the ICJ, the International Tribunal for the Law of the Sea, ad hoc criminal tribunals, the WTO Dispute Settlement Body, the ECtHR, and the Court of Justice of the European Union, since these Courts and tribunals represent a significant sample. 71 For a general analysis, see R. Kolb, La Bonne foi en droit international public. Contribution à l'étude des principes généraux de droit, publication of the IUHEI, Geneva (Paris: PUF, 2000); ibid, ‘La bonne foi en droit international public’, RBDI, 1998/2; E. Zoller, La Bonne foi en droit international public (Paris: Pedone, 1977). 72 J. Dehaussy and M. Salem, Jurisclasseur, Fasc. 12–6, 3, 1995, Sources du droit international, p 6. 73 ICJ Reports 1991, p 69, para. 48. On this occasion, the Court unambiguously sanctifies the customary value of Arts 31 and 32 of the Vienna Convention. 74 ICJ Reports 1993, p 50, para. 26. 75 ICJ Reports 1994, pp 21–2, para. 41. 76 ICJ Reports 1995, p 18, para. 33. 77 ICJ Reports 1996, p 812, para. 23, and p 818, para. 45. 78 Judgment of 13 December 1999, ICJ Reports 1999, pp 1059–60, paras 18–20. See also the case relating to the Sovereignty over Pulau Ligitan and Pulau Sipidan (Indonesia v Malaysia) in which the Court applied the rules of Art. 31 to interpret a 1891 convention although Indonesia was not a party to the 1969 Vienna Convention (Judgment of 17 December 2002, ICJ Reports 2002, pp 645–6, paras 37–8). 79 Judgment of 27 June 2001, ICJ Reports 2001, p 501, para. 99. 80 Judgment of 31 March 2004, Avena and Other Mexican Nationals (Mexico v United States of America), ICJ Reports 2004, p 48, para. 83. 81 Advisory Opinion of 9 July 2004, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Reports 2004, p 174, para. 94. 82 Judgment of 26 February 2007, Application of the Convention on the Prevention and Punishment of the Crime on Genocide (Bosnia-Herzegovina v Serbia-and-Montenegro), ICJ Reports 2007, p 60, para. 160. 83 Case no. 1 of the ‘Saiga’ (Saint Vincent and the Grenadines v Guinea), see the Judgment of 4 December 1997, available on the website of the Tribunal at: http://www.itlos.org. 84 Other than the Judgment mentioned supra, see also the second episode of the ‘Saiga’ case (Judgment of 1 July 1999, para. 80). See also, on the Tribunal's website, the Judgment of 23 December 2002 in the ‘Volga’ case (Russian Federation v Australia), prompt release, para. 77. In this case, the Tribunal also considered that Art. 73(2) of the Convention should be examined ‘in the light of its object and purpose’.

85 Order of 3 December 2001, MOX Plant case (Ireland v United Kingdom), provisional measures, para. 51. 86 This tendency is also evidenced by opinions attached to different judgments in which judges have not hesitated to refer directly to Art. 31. See eg in the Judgment of 1 July 1999 in the ‘Saiga’ (No. 2) case, the Individual Opinions of Judges Laing (paras 1 ff), Vukas (para. 17), and Nelson, as well as the Dissenting Opinion of Judge Malick Ndiaye (para. 12). See also in the Judgment of 18 December 2000 in the ‘Monte Confurco’ case (Seychelles v France), prompt release, the Individual Opinion of Judge Nelson or in the Judgment of 20 April 2001 in the ‘Grand Prince’ case (Belize v France), prompt release, the Individual Opinion of Judge Anderson. 87 Appeals Chamber, 2 October 1995, IT-94–1-AR72. 88 See eg the Slavko Dokmanovi´c case, Trial Chamber, Judgment of 22 October 1997, IT-95– 13a-PT, para. 40. 89 Notably in the Aleksovski case (Appeals Chamber, Judgment of 24 March 2000, IT-95– 14/1-T, para. 98); this was already implicit in the previously cited Tadic case, paras 71–95. 90 See eg the Mucic case, Judgment of 20 February 2002, IT-96–21, paras 67 ff. Here, the Appeals Chamber interpreted certain provisions of the Fourth Geneva Convention referred to in Art. 2 of its Statute, explicitly referring to the rules of interpretation of the Vienna Convention on the Law of Treaties. 91 ICTR-96–15-T, paras 13 ff. 92 The Prosecutor v Théoneste Bagosora, Appeals Chamber, Judgment of 8 June 1998, ICTR98–37-A, paras 28 and 29. 93 As pointed out by H. Ruiz Fabri: De rapport en rapport, l'Organe d'appel dresse le portrait du parfait interprète, celui qui utilise la Convention de Vienne, qui devient la référence cardinale, et celui qui ne modifie pas l'acquis négocié, qui devient la considération axiale', in: ‘L'appel dans le règlement des différends de l'O.M.C. (RGDIP, 1999, vol. 1, p 77) 94 Case of the Standards for Reformulated and Conventional Gasoline, Report of the Appellate Body of 29 April 1996, WT/DS2/AB/R, p 17. The Appellate Body Report of 4 October 1996 in the case of Taxes on Alcoholic Beverages, WT/DS8/11, WT/DS10/11, WT/DS11/8, is also very clear and pedagogical in this respect. 95 eg in the case of the Regime for the Importation, Sale and Distribution of Bananas (Banana case), WT/DS27/AB/R, Report of the Appellate Body of 9 September 1997. In the Carbon Steel case, the Appellate Body would confirm that ‘[i]t is well settled in W.T.O. case law that the principles codified in Articles 31 and 32 of the Vienna Convention on the Law of Treaties are such customary rules’ (Report from 28 November 2002, Countervailing Duties on Certain Corrosion-Resistant Carbon Steel Flat Products from Germany, WT/DS213/AB/R, p 23, para. 61). 96 eg in the Pharmaceutical Patents case (Patent Protection for Pharmaceutical and Agricultural Chemical Products), Report of the Appellate Body of 16 January 1998, WT/DS50/AB/R, paras 58 ff; or in the Hormones case (Measures Concerning Meat and Meat Products (Hormones)), WT/DS26/AB/R and WT/DS48/AB/R, a Common Report of the Appellate Body of 16 January 1998, paras 104 and 163; or again in the Shrimp case (Import Prohibition of Certain Shrimp and Shrimp Products), WT/DS58/AB/R, Report of the Appellate Body of 12 October 1998, paras 114 ff, in which the Appellate Body sought to systematize the interpretation procedure on the basis of the rules from the Vienna Convention which was clearly envisaged as the priority reference (para. 116). The principle of good faith was clearly recalled on this occasion. In the Softwood Lumber case, the Appellate Body recalled that ‘[t]he meaning of a treaty provision, properly construed, is rooted in the ordinary meaning of the terms used’ (Report of 19 January 2004, Final Countervailing Duty Determination with respect to certain Softwood Lumber from Canada, WT/DS257/AB/R, p 21, para. 58). 97 Notably in the Measures Affecting Agricultural Products, WT/DS76/AB/R, Report of the Appellate Body of 22 February 1999, concerning Annex B of the SPS Agreement. In the Softwood Lumber case cited in the previous note, the Appellate Body also considered that in this particular case, ‘to accept Canada's interpretation of the term “goods” would, in [its] view, undermine the object and purpose of the SCM Agreement’ (p 24, para. 64). 98 See the Gambling case and the divergence between the Panel and the Appellate Body concerning the manner to determine the ‘ordinary meaning’ of the term ‘sporting’ (Report from 7 April 2005, Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WT/DS285/AB/R, pp 52 ff). 99 Judgment of 21 February 1975, Golder, Series A, no. 18, paras 29 ff. Ever since, explicit references have been made regularly to Art. 31 in numerous judgments, such as the Judgment of 21 February 1986, James and others, Series A, no. 98, paras 42 and 61; the Judgment of 23 March 1995, Loizidou v Turkey, Series A, no. 310, para. 73; or the recent judgment handed down in the Grand Chamber on 29 January 2008 in the case of Saadi v United Kingdom (Application no. 13229/03, paras 61 ff ). 100 Judgment of 7 December 1976, Handyside, Series A, no. 24. 101 Judgment of 28 November 1978, Luedicke, Belkacem and Koç, Series A, no. 29, para. 42; Judgment of 16 December 1992, Niemietz, Series A, no. 251-B, para. 31, where the Court privileged a wide interpretation founded on the object and purpose of the treaty; the Loizidou Judgment previously cited, paras 72 and 73. See also the Judgment of 4 February 2005, Mamatkulov and Askarov v Turkey, in which, to determine the scope of temporary measures,

the Court underlined ‘that Article 31 para. 1 of the Vienna Convention on the Law of Treaties provides that treaties must be interpreted in good faith in the light of their object and purpose’ (ECR 2005-I, para. 123). 102 And even more so for Art. 32, for the travaux préparatoires can constitute an obstacle for teleological interpretation that the ECJ wishes to give to community treaties (see the commentary on Art. 32 in the present work). 103 Case 30/59, ECJ, ECR 1961, p 19. 104 Opinion C-1/91, ECJ, ECR 1991, p I-6079, para. 14. See also Opinion 2/00 of 6 December 2001, Opinion Pursuant to 300 EC, ECJ, ECR 2001, p I-9713, para. 24 (regarding the interpretation of the Cartagena Protocol). 105 Case C-312/91, 1 July 1993, Metalsa Srl, penal procedure v Gaetano Lo Presti, ECJ, ECR 1993, p I-3751, para. 12; Case C-416/96, 2 March 1999, Nour Eddine El-Yassini v Secretary of State for Home Department, ECJ, ECR 1999, para. 47; Case C-268/99, 20 November 2001, Aldona Malgorzata Jany and others v Staatssecretaris van Justitie, ECJ, ECR 2001, p I-8615, para. 35. 106 See eg a relevant passage from Case C-162/96 of 16 June 1998, A. Racke GmbH and Co v Hauptzollant Mainz, ECJ, ECR 1998, p I-3688, where it is mentioned that ‘even though the Vienna Convention does not bind either the Community or all its Member States, a series of its provisions, including Article 62, reflect the rules of international law…’ (para. 24). The Court then cites case law from the ICJ which considers this principle as customary, nonetheless without explicitly relying on this statement. 107 Case C-149/96, 23 November 1999, Portugal v Council of the European Union. 108 For a general presentation of these issues, see J.-M. Sorel, ‘Le destin des normes internationales dans le droit interne: perspectives européennes’, XXIV Curso de Derecho Internacional (Washington DC: Secretary General of the OAS, 1998), pp 247–71. 109 See P.-M. Eisemann (ed.), L'intégration du droit international et communautaire dans l'ordre juridique national, étude de la pratique en Europe (The Hague: Kluwer Law International, 1996). 110 With the exception of several States. In Europe, France and Belgium stand out by adhering to this point of view, ibid, p 23. 111 See eg the judgment of the Conseil d'État of 14 June 1964, Société des pétroles ShellBerre, Lebon, p 344. 112 Since the judgment of the Conseil d'État (Assemblée) on GISTI of 26 June 1990, Lebon, p 171. 113 As can be seen, eg, in numerous provisions and annexes parallel to the 1982 Convention on the Law of the Sea, the interpretative annexes of Articles in the Marrakesh Agreements creating the WTO, or the numerous Protocols of the European Convention of Human Rights. In general, it is most commonly a matter of protocols, declarations, or resolutions attached to the initial text. 114 See supra, Section B, paras 29 ff. 115 Case of the Maritime Delimitation in the Area between Greenland and Jan Mayen Affaire, supra n 74, p 50, para. 26; case of the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia), ICJ Reports 2007, p 60, para. 160. 116 ICJ Reports 1994, p 26, para. 53. 117 Judgment of 17 December 2002, Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v Malaysia), ICJ Reports 2002, pp 648–51, paras 44–8. Indonesia referred to the ‘interaction’ between the British government and the Dutch government concerning the map accompanying the Explanatory Memorandum that the latter had attached to the draft law presented to the States-General of the Netherlands, with a view to the ratification of the 1891 convention. 118 Judgment of 4 December 1997 in case no. 1 of the ship ‘Saiga’, supra n 83, para. 50. For other references to the context, see also the second episode in the case of the ‘Saiga’ (Judgment of 1 July 1999, para. 80), as well as the Judgment of 23 December 2002 in the case of the ‘Volga’ (Russian Federation v Australia), prompt release, para. 77. 119 Trial Chamber, Judgment of 3 March 2000, IT-95–14-T, paras 327 and 329. 120 The context was thus mentioned in the Underwear case (Restrictions on Imports of Cotton and Man-made Fibre Underwear), WT/DS24/AB/R, Report of the Appellate Body of 10 February 1997, pp 16–17; and in the Poultry case (Measures Affecting the Importations of Certain Poultry Products), WT/DS69/AB/R, Report of the Appellate Body of 13 July 1998, para. 146. 121 Supra n 96, para. 172. 122 LAN case (Customs Classification of Certain Computer Equipment), WT/DS62/AB/R, WT/DS67/AB/R, WT/DS68/AB/R, Report of the Appellate Body of 5 June 1998, para. 89. 123 Case of the Definitive Safeguard Measures on Imports of Circular Welded Carbon Quality Line Pipe from Korea, WT/DS202/AB/R, Report of the Appellate Body of 15 February 2002, paras 172–3. 124 Report of 7 April 2005 quoted supra n 98, paras 165 ff. According to the Appellate Body, there are sufficient elements of proof when these documents constitute an ‘agreement relating to the treaty’ between the parties and when they have been ‘accepted by the…Parties as an instrument related to the treaty’, which was not the case in that particular situation.

125 Series A, no. 18, supra n 99, para. 34. 126 Judgment of 29 January 2008, supra n 99, para. 62. 127 As in the judgments supra of Handyside, and in the Judgment of Klass, 6 September 1978, Series A, no. 28, in the judgment B v Austria of 28 March 1990, Series A, no. 75, para. 36, and also in the judgment of Mamatkulov and Askarov v Turkey of 4 February 2005, ECR 2005-I, para. 39. 128 See, notably, supra the Opinion of 14 December 1991, paras 19 ff; or supra the Judgment of 1 July 1993, paras 11 ff. 129 Case 22/70 Commission v Council (AETR), Judgment of 31 March 1971, ECR 1971, p 263. 130 See M. K. Yasseen, supra n 5, pp 48 ff. 131 The ILC had an Art. 38 in its final draft which envisaged the possibility of modifying the treaty by subsequent practice, but it was finally rejected. The discussion surrounding this Article was described as a ‘calvary’ (G. Distefano, ‘La pratique subséquente des Etats Parties à un traité’, AFDI, 1994, p 55. The latter describes this draft at length, pp 55–61). Sir Gerald Fitzmaurice raises this issue in the form of an ‘emergent purpose’ (‘The Law and Procedure of the International Court of Justice: Treaty Interpretation and Certain Other Treaty Points’, BYBIL, 1951, p 8). 132 Supra, the Judgment of 24 November 1984, Military and Paramilitary Activities in and against Nicaragua (Jurisdiction and Admissibility), ICJ Reports 1984, p 411, para. 42. 133 Judgment of 17 December 2002, supra n 117, paras 59–80. 134 Thus the practice observed between Norway and Denmark in the Jan Mayen case, supra n 74, ICJ Reports 1993, p 51, para. 28. However, subsequent practice was equally an important element for the interpretation of the constitutent acts of international organizations such as in the Advisory Opinion of 8 July 1996, Legality of the Use by a State of Nuclear Weapons in Armed Conflicts, ICJ Reports 1996, pp 74–5, para. 19. Here, the Court takes into consideration not only the subsequent practice of the parties, but also that of the organization's bodies. Similarly in this respect, see the Advisory Opinion of 9 July 2004 on the Israeli Wall, supra n 81, paras 25 ff (concerning the interpretation of Art. 12(1) of the UN Charter). 135 ICJ Reports 1999, supra n 78, pp 1075–96, paras 47–80. 136 A reasoning that is followed by the Court in the case of the Land, Island and Maritime Frontier Dispute between El Salvador and Honduras (Nicaragua intervening), Judgment of 11 September 1992, ICJ Reports 1992, p 586, para. 380. 137 Case of the ship ‘Saiga’ (No. 2), supra n 84, para. 84. 138 Appeals Chamber, 2 October 1995, supra n 87, para. 30. 139 Taxes on Alcoholic Beverages, WT/DS8/11, WT/DS10/11, WT/DS11/8, and Report of the Appellate Body of 4 October 1996, p 14. In its report, the Appellate Body specified that a practice is considered as subsequent when it is ‘a ‘concordant, common and consistent’ sequence of acts or pronouncements which is sufficient to establish a discernable pattern implying the agreement of the Parties regarding its interpretation' (p 11). See also the Banana case, supra n 95, WT/DS27/AB/R, Report of the Appellate Body of 9 September 1997, paras 203 ff. 140 LAN case, supra n 122, Report of the Appellate Body of 5 June 1998, para. 96 regarding a community practice. See also the case of the Price Band System and Safeguard Measures Relating to Certain Agricultural Products, WT/DS207/AB/R, Report of the Appellate Body of 23 September 2002, para. 272. 141 Underwear case, supra n 120, Report of the Appellate Body of 10 February 1997, where the DSB refused to take into account the practice of the parties relating to WTO agreements judged as too recent. 142 In which the Appellate Body was led to judge the restrictive character of interpretation of Art. 3 of the SPS Agreement, which it would reject in this particular case (supra n 96), paras 162–8. See also the Gambling case (supra n 98), in which the Appellate Body relied on the ‘non-restrictive’ character of the 2001 Scheduling Guidelines adopted by the Council for Trade in Services, to consider that these Guidelines could not ‘in and of themselves’ constitute a ‘subsequent practice’ according to the meaning of Art. 31(3)(b) of the Vienna Convention (paras 180 ff ). 143 On this point, see E. Canal-Forgues, ‘Sur l'interprétation dans le droit de l'OMC’, RGDIP, 2001, vol. 1, p 21. 144 Judgment of 8 June 1976, Engel and others, Series A, no. 22, para. 72. 145 Judgment of 13 June 1979, Marckx v Belgium, Series A, no. 31, paras 41 ff. 146 Judgments of 28 November 1984, Rasmussen, Series A, no. 87, paras 40–1; of 28 October 1987, Inze, Series A, no. 126, para. 41; of 25 November 1991, Toth, Series A, no. 224, para. 77. 147 Judgment of 21 February 1986, James and others, Series A, no. 98, para. 65. 148 Judgment of 26 October 1988, Martins Moreira, Series A, no. 43, para. 54. 149 See the case of Loizidou v Turkey, supra n 99, paras 79–80, where the Court also speaks of ‘a practice denoting practically universal agreement amongst Contracting Parties’. 150 For examples, see Case 232/78, Judgment of 25 September 1979, Commission v France, ECR 1979, p 2729, in which the conduct of the States and the absence of application of

secondary law by the States or institutions were not considered as an element of interpretation of the treaty. 151 Cases 21–24/72, 12 December 1972, ECR 1972, p 1219. 152 Judgment of 25 September 1997, ICJ Reports 1997, pp 66–9, paras 100 and 114. On this aspect, see M. Kohen, ‘La codification du droit des traités: quelques éléments pour un bilan global’, RGDIP, 2000, vol. 3, pp 598–9. Nevertheless, the interpretation of Art. 27 of the UN Charter by the ICJ in the Advisory Opinion of 21 June 1971 (Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970)) is based on interpretative practice in a wide enough manner to confirm the validity of the vote of the Security Council, ICJ Reports 1971, paras 19– 41. 153 Judgment of 21 February 1975, supra n 99, para. 35. 154 See, amongst others, the Judgment of 7 July 1989, Soering, Series A, no. 169, para. 88; the Judgment of 21 November 2001, Al-Adsani v United Kingdom, ECR 2001-XI, para. 55; the Judgment of 4 February 2005, Mamatkulov and Askarov v Turkey, ECR 2005-I, para. 111; the Judgment of 30 June 2005, Bosphorus v Ireland, ECR 2005-VI, para. 150; the Judgment of 22 June 2006, Bianchi v Switzerland, Application no. 7548/04, para. 81; and the Judgment of 29 January 2008, Saadi v United Kingdom, Application no. 13229/03, para. 62. 155 Judgment of 6 November 2003, ICJ Reports 2003, p 182, para. 41. 156 The Gasoline Report of 29 April 1996, supra n 94, p 19. See also the Banana Report of 9 September 1997, supra n 95, para. 10, as well as the Poultry Report of 13 July 1998, supra n 120. On this refusal of ‘clinical isolation’, see G. Marceau, ‘A Call for Coherence in International Law. Praises for the Prohibition against “Clinical Isolation” in WTO Dispute Settlement’, Journal of World Trade, 1999, vol. 5, esp. pp 115 ff. 157 See eg the case of Measures Affecting Government Procurement, WT/DS163/R, Panel Report of 19 June 2000, para. 7.96: the Panel recognized that customary international law can be taken into consideration in the relationships between WTO members, but only on condition that WTO Agreements do not contain contrary provisions. See also the case of Measures Affecting the Marketing and Approval of Biotech Products, WT/DS291/R, WT/DS292/R, WT/DS293/R, Panel Report of 29 September 2006, para. 7.75: in spite of an invocation of Art. 31(3(c), the Panel refused, in this particular case, to take into consideration the Cartagena Protocol, given that none of the complainant parties was a party to this treaty. 158 See the detailed developments of Ph. Sands on this aspect in: ‘Vers une transformation du droit international? Institutionnaliser le doute’, Droit international 4 (Paris: IHEI-Pedone, 2000), pp 213 and 220 ff. Also see studies relating to the issue of the ‘fragmentation of international law’ carried out by the ILC, and notably the report from its 57th session (2005), A/60/10, pp 204 ff. 159 Judgment of 11 September 1992, ICJ Reports 1992, p 584, para. 376. 160 See eg the Judgment of 14 June 1993 in the case of Jan Mayen, ICJ Reports 1993, supra n 74, p 51, para. 28. 161 Case of The Prosecutor v Jean-Paul Akayesu, Trial Chamber, Judgment of 2 September 1998, ICTR-96–4-T, paras 507 ff. In this particular case, the ICTR sought the intention of the parties in the travaux préparatoires. 162 Notably in the Gasoline report (supra n 94), para. 50, or in the Hormones report (supra n 96), para. 187. 163 See eg the Judgment of 8 June 1976, Engel and others v The Netherlands, Series A, no. 22, paras 81 ff (‘autonomy’ of the notion of ‘penal matters’). For an explanation of the autonomous nature of the notion of ‘penal matters’, see the Judgment of 9 October 2003, Ezeh and Connors v United Kingdom, ECR 2003-X, paras 100 ff. As for the notion of ‘rights and obligations of civil character’, see eg the Judgment of 11 July 2002, Goc v Turkey, ECR 2002-V, no. 30, para. 41. 164 An autonomous scope is eg recognized in the notion of ‘penalty’ mentioned in Art. 7 of the Convention: see the Judgment of 12 February 2008, Kafkaris v Cyprus, Application no. 21906/04, para. 142. The notion of ‘expulsion’ (Art. 1 of Protocol no. 7) is also considered by the Court as ‘an autonomous concept which is independent of any definition contained in domestic legislation’ (Judgment of 5 October 2006, Bolat v Russia, Application no. 14139/03, para. 79), similarly to the notion of ‘goods’ raised in Art. 1 of Protocol no. 1 (Judgment of 22 June 2004, Broniowski v Poland, ECR 2004-V, para. 129). 165 Previously cited case of 23 February 1961, Case 30/59, ECR 1961, p 39. 166 Notably in Cases 75/63, 19 March 1964, Unger, ECR 1964, p 362; C-277/87, 11 January 1990, Sandoz Prodotti Farmaceutici v Commission, ECR 1990, p I-45; C-188/00, 19 November 2002, Kurz, ECR 2002, p I-10691, para. 32 (about the concept of a ‘worker’ mentioned in Art. 39 EC Treaty, ex Art. 48); or the related Cases C-187–190/05, 7 September 2006, Agorastoudis and others, ECR 2006, p I-7775, para. 28 (the communitarian scope of the concept of ‘redundancy’). 167 Effectiveness being defined in the following way: Règle—parfois invoquée au titre de principe—selon laquelle l'interprète doit présumer que les auteurs d'un traité, en adoptant les termes d'une disposition, ont entendu leur donner une signification telle que cette disposition puisse recevoir une application effective. (J. Salmon (ed.), Dictionnaire du droit international public (Brussels: Bruylant/AUF, 2001), p 416)

168 With, nevertheless, a certain suspiciousness which the Court had the opportunity to express in its Opinion of 18 July 1950 concerning the Interpretation of Peace Treaties where it specified that this could not lead to the revision of the treaty under the pretext of interpretation (ICJ Reports 1950, pp 228–9). 169 ICJ Reports 1994, pp 23–4, para. 47. 170 ICJ Reports 1999, supra n 78, para. 93. 171 Celebici case, Trial Chamber, Judgment of 16 November 1998, IT-96–21, paras 459 ff; Furundžija case, Trial Chamber, Judgment of 10 December 1998, IT-95–17/1, paras 162 and 181–2. 172 Slavko Dokmanovic, supra n 88, Trial Chamber, Judgment of 22 October 1997, IT-95–13aPT, para. 42. 173 The Alcoholic Beverages case (supra n 94), Report of the Appellate Body of 4 October 1996, p 16; the Underwear case (supra n 120), Report of the Appellate Body of 10 February 1997, p 15; the Poultry case (supra n 120), WT/DS69/AB/R, Report of the Appellate Body of 13 July 1998, paras 151–2; the Shrimp case (supra n 96), Report of the Appellate Body of 12 October 1998, para. 116; Case of Subsidies on Upland Cotton, WT/DS267/AB/R, Report of the Appellate Body of 3 March 2005, para. 429. 174 Supra n 96, Report of the Appellate Body of 16 January 1998, para. 164. In this last case, the DSB broached the issue of the precautionary principle as a means of interpretation, which it did not uphold in casu. 175 See, amongst the numerous judgments passed, that of 23 March 1995, Loizidou v Turkey (preliminary objections), Series A, no. 310, para. 72; that of 5 February 2002, Conka v Belgium, Series A, para. 46; or that of 9 October 2003, Biozokat A.E. v Greece, Application no. 61582/00, para. 31. 176 See the Golder judgment, supra n 99, paras 34–6, and the Judgment of 28 June 2007, Wagner and J.M.W.L. v Luxembourg, Application no. 76240/01, para. 118. 177 Judgment of 4 February 2005, supra n 101, para. 123. 178 See eg the Judgment of 25 January 2007, Rompoti and Rompotis v Greece, Application no. 32141/04, para. 26, and the Judgment of 24 April 2008, Milionis and others v Greece, Application no. 41898/04, para. 48. 179 For mentions of effectiveness, see Case 187/87, 22 September 1988, Land de Sarre v Ministre de l'industrie, des P et T et du tourisme, ECJ, ECR 1988, p 5013; Case C-416/96, supra n 105, 2 March 1999, Nour El-Yassini v Secretary of State for Home Department, ECJ, ECR 1999, p I-1209, para. 66; Case C-440/00, 13 January 2004, Kühne & Nagel, ECR 2004, p I787, para. 46. 180 Teleological interpretation nonetheless underlies the rule according to which a treaty should be interpreted ‘in the light of its object and purpose’ (Art. 31(1)). 181 Advisory Opinion of 21 June 1971, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), ICJ Reports 1971, p 50, para. 104. 182 Case of 8 July 1996 (supra n 134), Legality of the Use by a State of Nuclear Weapons in Armed Conflicts, ICJ Reports 1996, pp 78–9, para. 25. 183 Judgment of 27 June 2001, supra n 50, para. 102. The ICJ subsequently confirmed this approach in its Judgment of 31 March 2004 in the Avena case, supra n 50. 184 In its Judgment of 18 July 1966, the Court qualified the principle of teleological interpretation as ‘a principle the exact bearing of which is highly controversial’ (ICJ Reports 1966, p 48, para. 91). Admittedly, this judgment took place while discussions on the future Vienna Convention of the States were in full swing. 185 Judgment of 26 February 2007, supra n 50, para. 166. 186 Judgment of 1 July 1999, Saiga' (No. 2), supra n 84, paras 51 ff. 187 Case of the ‘Camouco’ (Panama v France), prompt release, Judgment of 7 February 2000, para. 58 (available on the website of the Tribunal, supra n 83). 188 This of course refers to the Tadic case (supra n 87), Appeals Chamber, Judgment of 2 October 1995, paras 19 ff and 72–8. In the Milutinovic case, the Trial Chamber would also refer to a teleological interpretation of Ch. VII of the United Nations Charter (IT-99–37, decision of 6 May 2003, para. 48). 189 See notably the second episode of the Tadic case (IT-94–1-4, Judgment of the Appeals Chamber of 15 July 1999, para. 168); the Aleksovski case (IT-95–14/1, Judgment of the Appeals Chamber of 24 March 2000, para. 152); as well as the Mucic case (IT-96–21, Judgment of the Appeals Chamber of 20 February 2001, para. 73). 190 Trial Chamber, Judgment of 18 July 1997, in which the Tribunal justified a system of constraint (order to execute) for States on the basis of the Statute and Regulations. This judgment would later be overturned by the Appeals Chamber (Judgment of 29 October 1997) which would nevertheless recall the Tribunal's inherent powers (para. 33), IT-95–14-AR 108bis. 191 Previously cited case of Measures Affecting Agricultural Products, WT/DS76/AB/R, Report of the Appellate Body of 22 February 1999. In this particular case, it broadly interpreted Annex B of the SPS Agreement. 192 Judgment of 4 December 1979, Series A, no. 34, para. 30; Judgment of 8 December 1983, Series A, no. 71, paras 26 ff; Judgment of 18 December 1986, Series A, no. 112, para. 52.

193 Judgment of 23 March 1995 (supra n 99), Series A, no. 310, paras 70 ff. 194 Judgment of 4 February 2005 (supra n 101), para. 123. 195 Respectively Case 26/62, Judgment of 5 February 1963, ECJ, ECR 1963, p 1; Case 6/64, Judgment of 15 July 1964, ECJ, ECR 1964, p 585; Case 22/70 (supra n 129), Judgment of 31 March 1971, ECJ, ECR 1971, p 263. 196 Notably with Case 36/74 Walrave v Union cycliste internationale, Judgment of 12 December 1974, ECJ, ECR 1974, p 1405; Case 43/75 Defrenne v Sabena, Judgment of 8 April 1976, ECJ, ECR 1976, p 455; Case 104/81 Kupferberg, Judgment of 26 October 1982, ECJ, ECR 1982, p 3641. And, more recently, Case C-212/04 Adeneler and others, Judgment of 4 July 2006, ECR 2006, p I-6057. 197 P. Pescatore, ‘Les objectifs de la Communauté européenne comme principe d'interprétation de la jurisprudence de la Cour de justice’, Mélanges W.J. Ganshof Van der Meersch (Paris: LGDJ; Brussels: Bruylant, 1972), pp 325 ff. 198 ICJ Reports 1966, supra n 184, pp 23 ff, paras 16 ff. 199 ICJ Reports 1971, supra n 181, p 31, para. 53. 200 Judgment of 19 December 1978, ICJ Reports 1978, pp 33–4, para. 80. 201 Notably in the case of the Gabcíkovo/Nagymaros Project, Judgment of 25 September 1997, ICJ Reports 1997, supra n 152, p 67, para. 112 and pp 77–8, paras 139–40; or in the case of Kasikili/Sedudu Island, Judgment of 13 December 1999, ICJ Reports 1999, supra n 78, pp 1060 ff, paras 20 ff. 202 Supra n 96, para. 113. 203 Series A, no. 39, para. 95. 204 Judgment of 27 September 1990, Cossey v United Kingdom, Series A, no. 184, para. 35. 205 Judgment of 4 February 2005, supra n 101, para. 121. For a similar point of view, see the Judgment of 21 February 1986, James and others (supra n 99), paras 46 ff (concerning transsexualism); Judgment of 9 December 1994, Lopez Ostra v Spain, Series A, no. 303-C, para. 51 (concerning individual rights in environmental matters); Judgment of 28 July 1999, Selmouni v France, ECR 1999-IV, para. 105 (evolutive interpretation of the concept of torture). See also the case, amongst others, of E.B. v France, Judgment of 22 January 2008, Application no. 43546/02, para. 92 (regarding the access of homosexuals to adoption). 206 The Court refused on that basis an evolutive interpretation on transsexualism (see the Judgment of 26 March 1992, B. v France, Series A, no. 232-C, para. 48). 207 See eg the Judgment of 11 July 2002, Goodwin v United Kingdom, ECR 2002-VI, para. 74 (the Court evoked the necessity of reacting to the ‘evolving convergence as to the standards to be achieved’; see also the Judgment of 9 April 2003, L and V v Austria, ECR 2003-I, para. 39 (the Court referred to a growing consensus in Europe to lower the age of consent for homosexual relations). 208 See eg Case 61/77 Commission v Ireland, Judgment of 16 February 1978, ECJ, ECR 1978, p 417, which illustrates application of the mobile reference method to the geographic scope of community powers. 209 Judgments of 20 December 1974, ICJ Reports 1974, p 267, para. 44. 210 Judgment of 6 September 1978, Klass (supra n 127), para. 42. See also the Judgment of 5 February 2002, Conka v Belgium, Series A, ECR 2002-I, para. 42. 211 On the contradiction between the rules of interpretation and the absence of a ‘hierarchical structuring’ between them which would bring certitude to the interpretation, see D. Simon, L'Interprétation judiciaire des traités d'organisations internationales (morphologie des conventions et fonction juridictionnelle) (Paris: Pedone, 1981), pp 130–4. 212 See V. Boré Eveno, ‘L'Interprétation des traités par les juridictions internationales (étude comparative)’, thesis, Université Paris 1 Panthéon-Sorbonne, 2004, notably pp 118 ff. Added to this necessity of interpreting the rules of interpretation is that of determining the meaning of the data to which these rules refer. For example, if the interpreter has recourse in the ‘purpose’ of the treaty to interpret one of its provisions and if he or she considers that this purpose should be found in the preamble to the treaty, it will also be necessary for him or her to then interpret the relevant provisions of this preamble (idea of the ‘double degré d'interprétation’ raised by Denys Simon in his thesis, supra n 211, pp 134–6). 213 Before the 1969 Vienna Convention was definitively adopted, Ioan Voïcu had already suggested, in his thesis on the authentic interpretation of international treaties, that: les avantages relatifs, le gage de sécurité, qu'entraînerait un hypothétique code d'interprétation seraient dépassés proportionnellement par les difficultés qu'il susciterait, du fait que ce code n'échapperait pas non plus à l'interprétation et pourrait engendrer le risque d'un subjectivisme accentué en la matière. (I. Voïcu, De l'interprétation authentique des traités internationaux (Paris: Pedone, 1968), p 62) 214 See the commentary on Art. 32 in the present work. 215 We can eg cite the Loizidou case (supra n 99) in which the ECtHR refused the reservations of Arts 25 and 46 of the Convention, although this matter concerned a system close to Art. 36(2) of the ICJ Statute which the Court accepted. Also note the Judgment of the Appeals Chamber of 15 July 1999 in the Tadić case, in which the effective control criteria used by the ICJ in its 1986 judgment in the case between the United States and Nicaragua, was declared ‘unconvincing’, IT-94–1-4, judgment of The Prosecutor v D Tadić of 15 July 1999,

paras 114 ff. The ICJ however confirmed this strict criteria of the attribution of an illicit deed to the responsibility of the State, in its Judgment of 26 February 2007 (case of the Application of the Convention on the Prevention and Punishment of the Crime of Genocide, supra n 50, paras 398 ff), thereby categorically refuting the doctrine of global control developed by the Tadić case law. However, this judgment dissipated fears of diverging understandings of ‘the crime of genocide’ stemming from the 1948 convention between the ICTY and the ICJ since the latter explicitly relied on the decisions taken by international criminal tribunals, at least in the establishment of criminal deeds and their qualification. 216 Les interprétations justes (Paris: LGDJ, 2001). * Professor, Université Paris 1—Panthéon-Sorbonne, Paris, France. ** Lecturer, Université de Nantes.

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Volume I, Part III Observance, Application and Interpretation of Treaties, s.3 Interpretation of Treaties, Art.31 1986 Vienna Convention Jean-Marc Sorel From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Travaux préparatoires

(p. 838) 1986 Vienna Convention Article 31 General rule of interpretation 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended. 1. The unanimity that presided when Article 31 of the 1969 Convention was adopted, was echoed by the unanimity over the absence of modifications to be made to this Article during discussions leading to the 1986 Convention. The history of the ILC travaux shows that Article 31 has passed through practically all discussions without a single shadow of doubt upsetting the debate.1 As a result, the principal problems raised by the new Convention on treaties between international organizations or between international organizations and States did not include the issue of interpretation. Agreements targeted by the drafting mainly related to the administrative life of organizations or their operational activities, where the only relevant issue relating to interpretation concerned the problem of constituent treaties of international organizations—a problem that was already resolved (notwithstanding the absence of a specific provision) by the schema of Article 31 as it existed in the 1969 Convention.2 Moreover, since the objective was to raise the minimum number of problems with regard to the 1969 antecedent where the treaties in question were finally excluded from the Convention, one can understand why an absence of proposed amendments won the consensus. 2. The true specificity of treaties affecting international organizations with regard to interpretation concerns the constituent treaties of international organizations.3 Here resides (p. 839) the great debate surrounding teleological interpretation,4 an issue to which the ILC travaux did not return. One can understand that this debate, at that time, was both ‘off course’ and outmoded. In fact, international courts had already accumulated an abundant case law which, for some (such as the European Court of Justice (ECJ)), had reached a point of no return along this path. The evolution of teleological interpretation is, in this regard, significant: whilst the State, endowed with full sovereign powers, is not limited, international organizations, due to their speciality and role, cannot depart from a certain framework. However, when a court wishes to extract, from this speciality and from this function, everything that can be induced from it, it ends up with extensive powers, especially if the speciality of the organization is diluted or wide in range, as is the case of the present day European Community. This result was neither truly desired nor authorized in 1969 but simply flows from the potentialities of Article 31. As the Special Rapporteur pointed out, Article 31 makes space for this type of interpretation ‘in so far as [is] necessary’.5 3. Finally, the only issue broached was the role of unilateral acts of organizations in appreciating the context of the treaty as described in Article 31(2)(b). For some, these acts should be placed on the same par as travaux préparatoires while for others these acts should be automatically classified as part of the context of the treaty.6 This brief discussion would not be followed by effects but some judicial decisions have partially answered the question.7 4. The absence of modifications nevertheless did not mean that the application of stated rules would not differ according to the parties to the treaties. It is clear that international organizations raise specific problems which can highlight certain aspects of the Articles on interpretation (in particular, the travaux préparatoires of Art. 32 come to mind), but, as the ILC travaux recall with the aid of an incantatory formula, this is generally a matter of translating an agreement on intention, whichever parties may be concerned, and as the word ‘State’ was not mentioned in Article 31 of the 1969 Convention, there was nothing to modify.8 5. Considering that ‘these are very general rules relating to the very essence of the conventional mechanism’,9 Articles 31 to 33 of Section 3 on interpretation were subject to ‘[n]o observation…and they required no comment or change’.10 It was on this basis that Section 3 was first adopted by the ILC, then by the Conference,11 although neither (p. 840) the Sixth Committee nor any of the governments made any written observations on this section.

6. It is significant that case law subsequent to the 1986 Convention does not refer to Article 31 of this Convention but continues to refer to Article 31 of the 1969 Convention. True, the 1986 Convention is not yet in force but the customary character attached to these Articles seems to allow such a reference in some cases. This reference confirms that apart from the intention to make the 1986 Convention an autonomous and independent instrument, a mere reference to the 1969 Convention would have sufficed. *

JEAN-MARC SOREL

Footnotes: 1 See the Report of the ILC General Assembly during its 34th session in 1982, which sums up the history of the draft (vol. II, pp 9 ff). This report demonstrates that the various questions which were raised—such as the question on the absence of schema equivalent to ‘sovereign equality’ for highly different organizations—do not directly touch on treaty interpretation. 2 See the First Report of the Special Rapporteur (P. Reuter) (A/CN.4/258) who demonstrates this point perfectly, YILC, 1972, vol. II, pp 171–99. 3 See the commentary on Art. 5 in the present work. 4 See, in the present work, the commentary on Art. 31 of the 1969 Vienna Convention, esp. paras 53 and 54. 5 YILC, 1975, vol. II, p 43. 6 See the debate between Mr Ushakov (para. 30) and Mr Calle y Calle (para. 32) during the ILC travaux, YILC, 1977, vol. I, pp 123–4. For Mr Riphagen (para. 33) and the Special Rapporteur (para. 38), reference seemed useless as this was a matter of internal acts with no equivalent for States. As a type of provisional compromise, the Special Rapporteur accepted envisaging this question in the context of Art. 32 (para. 39), but this would ultimately not appear in the Convention. 7 Notably the ECJ, which seems directly to include, in the context aimed at in Art. 31(2)(b), secondary Community law (whereas other courts, such as the ICTY, only mention secondary law in the context of Art. 31(3)). See the commentary on Art. 31 of the 1969 Vienna Convention, para. 41 and n 129 concerning the AETR case. 8 See notably YILC, 1975, vol. II, p 43. 9 Ibid, p 27, para. 3. 10 YILC, 1981, vol. II, p 65, para. 90. 11 The ILC adopted the final draft during its 1750th session on 21 July 1982, and the President of the Drafting Committee (Mr Al-Khasawneh) pointed out, during the travaux of the Conference in Vienna from 18 February to 21 March 1986, that the Articles were directly transferred to the Drafting Committee by the Conference without any modification to the text (Official Records, Summary Records, vol. I, p 16, para. 79). * Professor, Université Paris 1—Panthéon-Sorbonne, Paris, France.

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Volume I, Part III Observance, Application and Interpretation of Treaties, s.3 Interpretation of Treaties, Art.32 1969 Vienna Convention Yves le Bouthillier From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Treaties, interpretation — Customary international law — Travaux préparatoires — Rules of treaty interpretation — Good faith — Treaties, conclusion

(p. 841) 1969 Vienna Convention Article 32 Supplementary means of interpretation Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable. A. General characteristics 842 Purpose and object 842 Customary law status 843 B. Scope: conditions for resorting to supplementary means 846 Confirming the meaning 846 Determining the meaning in cases where the meaning is ambiguous or obscure or leads to a result which is manifestly absurd or unreasonable 849 The ‘ambiguous or obscure’ meaning 849 A result ‘manifestly absurd or unreasonable’ 850 C. Supplementary means 851 Preparatory works 852 Their nature 852 Their value and opposability 855 Why are they supplementary? 856 The circumstances of the treaty's conclusion 859 Other means 861

Bibliography Aust, A., Modern Treaty Law and Practice (2nd edn, Cambridge: Cambridge University Press, 2007) Canal-Forgues, E., ‘Remarques sur le recours aux travaux préparatoires dans le contentieux international’, RGDIP, 1993, pp 901 ff Linderfalk, U., On the Interpretation of Treaties: The Modern International Law As Expressed in the 1969 Convention on the Law of Treaties (Dordrecht: Springer, 2007) Ris, M., ‘Treaty Interpretation and ICJ Recourse to Travaux Préparatoires: Towards a Proposed Amendment of Articles 31 and 32 of the Vienna Convention on the Law of Treaties’, Boston Coll Int'l & Comp LR, 1991, pp 111 ff Schwebel, S., ‘May Preparatory Work be Used to Correct Rather than Confirm the “Clear” Meaning of a Treaty Provision?’ in J. Makarczyk (ed.), Theory of International Law at the Threshold of the 21st Century (The Hague: Kluwer Law International, 1996), pp 173–81 Vandevelde, K. J., ‘Treaty Interpretation from a Negotiator's Perspective’, Transnat'l L, 1988, pp 281 ff de Visscher, Ch., Problèmes d'interprétation judiciaire en droit international public (Paris: Pedone), 1963 Yasseen, M. K., ‘L'interprétation des traités d'après la Convention de Vienne sur le droit des traités’, RCADI, 1976-III, vol. 151, pp 1–114

(p. 842) A. General characteristics Purpose and object 1. In addition to the primary means of interpretation found in Article 31, drafters of the Vienna Convention on the Law of Treaties have provided, in Article 32, for the possibility to have recourse to ‘supplementary’ means. The ILC explained that Article 32 ‘does not provide for alternative, autonomous means of interpretation but only for means to supplement an interpretation governed by the principles’1 contained in Article 31. It was only after a long debate opposing two different schools of thought, both in the Commission and during the Diplomatic Conference in Vienna, that the complementary role of certain means, notably preparatory works and circumstances existing at the time of concluding a treaty, was agreed on by the adoption of Articles 31 and 32. 2. On one side, some supported an approach giving primacy to the ‘subjective intent’ of parties, also commonly called the ‘real intent’.2 Under this approach one has to allow recourse to any means of interpretation able to reveal this intent, and in particular to preparatory works.3 This point of view was supported by the United States during the Vienna Conference as it moved an amendment that would have eliminated any preference to one interpretative

means over another. The interpreter would be free to use all means that could be useful in a given case, whether it be the text, preparatory works, circumstances existing at the time a treaty was concluded, or any other means.4 However, the vast majority of States voted against this amendment.5 (p. 843) 3. The other approach, known as ‘objective interpretation’ or ‘declared intent’,6 takes as its starting point the text of the treaty.7 Others means only come into play when the text cannot, in itself, guide the interpreter.8 The ILC recommended to States an approach more in line with this school of thought by giving preference to the text, while compromising somewhat by incorporating in Article 31 a ‘context’ that includes subsequent agreement and practice and a teleological approach.9 However, it distinguished clearly between, on one hand, means qualified as ‘authentic’ (text, declaration, agreement, and States' subsequent practice) that together form the general rule of interpretation in Article 31 and, on the other hand, supplementary means in Article 32. According to the Commission, the interpretative elements of Article 31 ‘all relate to the agreement between the parties at the time when or after it received authentic expression in the text’.10 It added that ‘this is not the case with preparatory work which does not, in consequence, have the same authentic character as an element of interpretation, however valuable it may sometimes be in throwing light on the expression of the agreement of the text’.11 The drafters of the Convention opted for this approach, confining some elements to a more limited role than others.

Customary law status 4. Before the adoption of the Convention, many authors were of the view that there were no binding rules of interpretation in international law. The interpreter could have recourse to interpretative principles, for the most part borrowed from domestic private (p. 844) law, to give meaning to a provision. However, none of these principles were by themselves binding.12 With regard specifically to supplementary means, such as preparatory work, a well-known author wrote in 1961 that it was not possible to formulate a rule of international law on such matters.13 Others were of the view that there were, at the very least, a limited number of existing rules.14 The ILC, under the guidance of Waldock, as Special Rapporteur, endorsed this position, stating that it was important to identify and formulate these rules, including those related to the use of supplementary means of interpretation.15 5. As noted by the Commission, international tribunals' practice prior to the adoption of the Vienna Convention reveals that the distinction between main and supplementary means has existed for a long time.16 In this regard, the Permanent Court of International Justice (PCIJ) in the case of the SS Lotus was of the view that: ‘there is no occasion to have regard to preparatory work if the text of a convention is sufficiently clear in itself’.17 Likewise, in numerous cases and Advisory Opinions preceding the debate on Article 32, the International Court of Justice (ICJ) limited the role of preparatory works to a secondary one. For instance, in its 1948 Advisory Opinion on the Conditions of Admission of a State to the United Nations, it stated that: The Court considers that the text is sufficiently clear; consequently, it does not feel that it should deviate from the consistent practice of the Permanent Court of International Justice, according to which there is no occasion to resort to preparatory work if the text of a convention is sufficiently clear in itself.18

References (p. 845) 6. As illustrated in this paragraph, the ICJ can have, as the PCIJ had,19 recourse to additional interpretative means, frequently preparatory works, to clarify a text considered ambiguous or obscure. Similarly, these two jurisdictions can refer to others means if the ordinary meaning of the text leads to an unreasonable or absurd result.20 Tribunals have also frequently called on preparatory works to confirm their interpretation.21 For instance, in its Advisory Opinion on the Interpretation of the Convention of 1919 Concerning Employment of Women during the Night, the PCIJ stated that: The preparatory work thus confirms the conclusion reached on a study of the text of the Convention that there is no good reason for interpreting Article 3 otherwise than in accordance with the natural meaning of the words.22

References 7. Thus, it appears, from an examination of international tribunals' decisions prior to the adoption of the Convention that Article 32 is largely a codification of the practice existing at the time. In fact, since the adoption of the Convention, the ICJ has stated on many occasions that the rules of interpretation in the Vienna Convention on the Law of Treaties have a customary law status.23 Various arbitral tribunals have reached a similar conclusion,24 as well as the Appellate Body of the World Trade Organization25 and the European Court of Human Rights.26

References (p. 846) 8. The publicists also share the view that the provisions of the Convention dealing with interpretation are customary norms.27 However, as the content of these provisions are not norms of jus cogens, parties to a treaty are free, if they wish, to opt for other rules,28 conferring, for instance, greater weight than Article 32 does to preparatory works29 or, on the contrary, rejecting recourse to them for interpretative purposes. However, as mentioned by 30

Ago,30 it is likely that States would only opt for such alternatives on very rare occasions given the reasonableness of the existing rules.

B. Scope: conditions for resorting to supplementary means 9. As the qualifier ‘supplementary’ indicates, resort will be made to these means in an already active interpretative process. Their usefulness will depend on the conclusion reached at the outset by the interpreter on the clarity of a given provision: if the meaning of a provision has already been established through the use of means provided for in Article 31, the interpreter can only resort to supplementary means to confirm this meaning; if, however, no acceptable meaning emerged from Article 31, the means in Article 32 can be called upon to play a key role. In the latter case, the interpreter decides to look somewhere other than Article 31 to find the common intention of parties to a treaty.31

Confirming the meaning 10. Article 32 provides that an interpreter can refer to supplementary means to confirm the meaning given to a provision. This is the most common application of Article 32 by (p. 847) tribunals.32 This is not surprising as an interpreter will want to increase the persuasiveness of his or her analysis by pointing out that preparatory works accord with his or her reasoning.33

References 11. In fact, these means, formally secondary, can in reality have a decisive influence on the interpreter.34 In this regard, Rosenne comments that, since these means are argued by the parties at the same time as the means provided for in Article 31, it was coming ‘close to a legal fiction’ to pretend that they could never influence at the outset the meaning given to a provision: It was impossible to know by what processes judges reached their decisions and it was particularly difficult to accept the proposition that the travaux préparatoires had not actually contributed to form their opinion as to the meaning of a treaty they stated to be clear from its text, but which, nevertheless, as the pleadings in fact showed, was not so.35 12. To measure the real impact of preparatory works is not an easy task. What should an interpreter do if, when looking into preparatory works to confirm his or her interpretation, he or she discovers that there is not a concordance, but, indeed, a difference between the ordinary meaning and the meaning found in the preparatory works?36 One author suggests that, in this situation, the interpreter should opt for the clear meaning arrived at by virtue of Article 31.37 On the other hand, Judge (as he then was) Schwebel, notes, in a decision where he was dissenting, that this question is left open by Article 32. In his view, preparatory works should not be discarded only because they contradict a text that, on the face of it, appears clear: ‘[t]he travaux préparatoires are no less evidence of the intention of the parties when they contradict as when they confirm the allegedly clear (p. 848) meaning of the text or context of treaty provisions’.38 Others are strongly of the view that the interpreter, on the basis of the good faith principle formulated in Article 31, must ‘correct’ the ordinary meaning.39 Finally, another author takes a more pragmatic approach, suggesting that if an interpreter prefers a meaning found in preparatory works, he or she will, without acknowledging it, revise his or her analysis in order to adopt the meaning revealed by the preparatory works.40 Similarly, if he or she prefers the ‘ordinary’ meaning resulting from Article 31, he or she could intentionally omit to mention preparatory works in his or her decision, even if the parties have expressly based some of their pleadings on these works!41

References 13. The possibility of contradictions between the ordinary meaning of a provision and preparatory works is one of the reasons why the Commission considered not providing for recourse to supplementary means to confirm the meaning of a provision.42 However, it ultimately rejected this approach on the basis that international practice allowed the interpreter to look at other means to support his or her initial interpretation.43 This question was raised again at the Vienna Conference where some delegations requested, without success, the deletion of the ‘confirming function’ of the supplementary means.44 14. In sum, States agreed on the following compromise: not to place supplementary means of interpretation on an equal footing with the means listed in Article 31, but, nevertheless, permit the interpreter to have recourse to them in cases where he or she would find it useful,45 even if they understood that, in some instances, an interpreter (p. 849) could be tempted to confer more weight to these means than that contemplated in Article 32.46

Determining the meaning in cases where the meaning is ambiguous or obscure or leads to a result which is manifestly absurd or unreasonable 15. The possibility for an interpreter to determine the meaning of a provision in a treaty by having recourse to supplementary means is limited to cases where the meaning is ambiguous or obscure or leads to a result which is manifestly absurd or unreasonable.

The ‘ambiguous or obscure’ meaning

16. Referring to McNair, Myres McDougal, as representative of the United States at the Vienna Conference, reminded other delegates that: ‘[words] may be clear to one man and not clear to another, and frequently to one or more judges and not to their colleagues’.47 Article 32 comes to the rescue of the latter. When an interpreter, using the means of Article 31, is not able to extract a sufficiently clear and precise meaning from a provision, he or she can have recourse to the method found in Article 32.48 17. The interpreter may also have recourse to the supplementary means if he or she is confronted with two contradictory interpretations.49 However, this is not automatically so since, as explained by the Commission, ‘when a treaty is open to two interpretations (p. 850) one of which does and the other does not enable the treaty to have appropriate effects, good faith and the objects and purposes of the treaty demand that the former interpretation should be adopted’.50 18. In practice, one finds very few cases where international tribunals have concluded that the rule of interpretation in Article 31 led to an ambiguous or obscure result.51

References

A result ‘manifestly absurd or unreasonable’ 19. If the result of an interpretation by virtue of Article 31 is ‘manifestly absurd or unreasonable’ the interpreter will have recourse to the supplementary means of Article 32.52 As noted by Corten, the object or purpose of a provision will often be the primary l criteria, although not the only one, to determine if a reading of a text that, in itself, appears reasonable, leads to an unreasonable result.53 He reminds us that the ICJ, in the case of the Temple of Preah Vihear (Preliminary Objections), rejected an interpretation which, although based on the text, led to an absurd or unreasonable result when the purpose of (p. 851) the text was considered.54 In some cases, the unreasonable character of an interpretation will be revealed by elements other than the purpose. This would be the case, for example, of the interpretation of a rule that would contradict another rule agreed to by the same parties.55

References 20. Given that the interpreter is guided by the object and purpose of the treaty, it is only on rare occasions that he or she would need to resort to supplementary means to find a reasonable meaning.56 Moreover, the formulation of Article 32 diminishes further its usefulness since it only allows using supplementary means when a result is ‘manifestly’ absurd or unreasonable. The Commission was of the view that this requirement reflected the practice of international tribunals at the time. It noted that the relatively small number of cases in which tribunals have recognized this exception indicates that they consider it as ‘limited to cases where the absurd or unreasonableness of the “ordinary” meaning is manifest’.57

C. Supplementary means 21. The drafters of Article 32 did not provide an exhaustive list of supplementary means, as they wanted the interpreter to have wide discretion in determining which means, in each given case, would help to reveal or confirm the meaning of a provision.58 They identified two means that States and international tribunals have used frequently in the past,59 preparatory works and the circumstances surrounding the conclusion of a treaty, but did not exclude that the interpreter could refer to other relevant means.

(p. 852) Preparatory works Their nature 22. As the Commission explained, it did not propose a definition of ‘preparatory work’ in order to prevent ‘the possible exclusion of relevant evidence’.60 It therefore left the task to States and tribunals to identify in each case the documents that could qualify as such.61 23. While it is true that, as observed by Rosenne, what constitutes preparatory work depends ‘on the circumstances of each case’,62 there is no doubt that elements that are intrinsic to the negotiating process leading to a treaty will generally be accepted as preparatory work. These elements include the following: official records of the negotiations between the parties;63 draft texts proposed during the negotiation;64 statements made by States representatives during the debates;65 diplomatic exchanges;66 and interpretations formulated by the president of a drafting committee and not contested.67 In some cases, the ICJ has also referred to maps used during the negotiations.68

References 24. From the basis of the list supra, one could easily conclude that an agreement with regard to a treaty concluded by the parties prior to the conclusion of the treaty in question should also be considered as preparatory work. However, it is possible that this kind of agreement can be considered, in a given case, as part of the context of the treaty, as defined in Article 31. This was the view of the ILC,69 which interpreted as such the (p. 853) expression ‘in connexion with the conclusion of the treaty’ in Article 31(2)(a).70 Yasseen shared this view as long as the agreement was reached close to the date when the treaty was concluded and it was still in force at that time.71

25. Can other elements, not directly originating from States' negotiations, be considered as preparatory work? As Linderfalk points out, the question is very relevant in today's mode of treaty-making: Contemporary treaty-making processes often involve individuals or groups of individuals—referred to as special rapporteurs, experts-consultants, committee of experts, and so forth—that do not act in the capacity of States. The task with which these persons are assigned is to provide some kind of expert opinion, possibly in the form of a first draft proposal of a treaty, or—if a draft proposal already exists—in the form of proposed modifications.72 The most obvious example of a body of experts involved in the treaty process is the ILC.73 Some publicists, such as Charles de Visscher, have taken a restrictive approach, refusing to accept that documents not emanating from States can be considered preparatory work. They distinguish between the elements that are part of the diplomatic negotiating history, rightly considered as preparatory work, and others that explain the historical origin of the text.74 Some members of the Commission rejected this restrictive approach on the basis that one should not ignore the work of commissions of experts when it is obvious that the work in question has had a major influence on the final text of a treaty.75 Many publicists are also of the view that the work of the Commission can be classified as (p. 854) preparatory work.76 In addition, following the adoption of the Convention, the ICJ has referred to comments by the Commission to interpret some of its provisions77 as well as the provisions of other treaties.78 The question remains, however, as to whether the work of other groups of experts can be considered as preparatory work. As long as a clear link is established between the work of an expert group and the final wording agreed in a treaty, it is difficult to see on what basis one could refuse to consider this work as preparatory work while accepting the work by the ILC as such.79 Assuming that this is the case, it is in any event arguable that one could justify having recourse to this work as ‘other supplementary means of interpretation’ while quite possibly conferring on it less weight than documents emanating directly from negotiations between States.

References 26. In some cases the Court has considered as preparatory work documents prepared by States for internal purposes as, for instance, a State's own summary of a treaty negotiation.80 However, as noted by a publicist, this practice by the Court is debatable since States did not refer directly to these documents during the negotiating process.81

References 27. Moreover, to be considered as preparatory work, a document also had to have been in existence before the adoption of a treaty.82 Charles de Visscher proposed adding one more component to what constitutes preparatory work. He explained that the interpreter who refers to preparatory works is looking for the common intention of the parties. Consequently, a State's declaration should only be taken into account if other States have acquiesced to it.83 A broader interpretation, which, it is submitted, is more consistent with practice, is to consider as preparatory work all documents created during the negotiations while conferring more weight to the work that better demonstrates the common intention of the parties.84 For instance, it is likely that preparatory works that immediately preceded the adoption of a treaty will be given particular attention. In other words, one must distinguish between the elements forming the whole of the (p. 855) preparatory work and the weight to be given to each of these elements. A State's declaration during the negotiations can be included among the preparatory work85 but its influence on the interpretation could be limited. This approach is consistent with the division suggested by Articles 31 and 32. Article 31 takes into account the elements on which the parties agreed. All other elements which are not agreed by the parties but could nevertheless help to understand the intent of the parties fall within the ambit of Article 32.

References 28. Should it be an additional attribute of preparatory works that they are in writing? While this is normally the case,86 there is no reason why, in our view, with the advance of technology and the greater transparency in international negotiations, a State should be prevented in the future from submitting as preparatory work the video of a negotiating committee's session.

Their value and opposability 29. It would have been somewhat surprising if there had not been an express mention of preparatory works in Article 32. States could not ignore a means of interpretation that they invoke frequently during disputes on the interpretation of treaties. In practice, these works are the only ones that can explain, although often imperfectly, the evolution of a treaty's provision.87 In addition, the material form they take lends by itself a certain weight to preparatory works. Like the text of a treaty, and as opposed to other means as, for instance, State practice and the circumstances existing at the time of the conclusion of a treaty, preparatory works are concrete (summaries, series of written proposals, etc.). Their tangible nature probably encourages the interpreter to consider them carefully. It also explains in part the need the interpreter often has to justify his or her decision to discard them.88 30. It is interesting to note that, at least in one case,89 the ICJ has considered the relevant preparatory work not for what it revealed but rather for its silence on a particular issue. As a

result, the Court rejected a suggested interpretation of a provision by relying in part on the fact that this interpretation was never put forward during the negotiations. However, the Court must be careful when adopting this approach since, as will be seen infra, preparatory work rarely reflects the entire negotiation.

References (p. 856) 31. Many States become parties to multilateral treaties to which they were not present during the negotiating stage. Are the preparatory works opposable to these States? The ILC has expressly rejected the non-participation to the drafting of a treaty as a justification for leaving aside preparatory work. It reasoned, notably, that any State that wishes to adhere to a treaty can ask for the production of these works.90 Consequently, it did not suggest an exception of this nature in Article 32, stating that the decision of the PCIJ in the Territorial Jurisdiction of the International Commission of the River Oder did not reflect State practice. In this case the PCIJ refused to have recourse to preparatory work in which three of the States to the dispute had not participated.91 Therefore, Article 32 does not allow for different modes of interpretation depending on whether States have or have not participated in the drafting of a treaty.92 However, it would be unfair, as explained by publicists93 and as implicitly acknowledged by the Commission,94 to oppose to a State preparatory works to which it would have been refused access or the existence of which would have been hidden from it.95

References

Why are they supplementary? 32. Many of those in the ILC, as well as in the Vienna Conference, who were opposed to conferring a primary role to preparatory works did so on the basis that they were not often conclusive. They commented that, in the majority of cases, the examination of these works did not shed more light on a controversial provision.96

References (p. 857) 33. Prima facie, these works are often a composite of States' individual opinions.97 The work of the interpreter is to determine whether positions are sufficiently similar to demonstrate a common intention, an exercise which is made more difficult if there is a large number of individual statements.98 In such a case, the recourse to preparatory works, in particular to interpret a provision that was still controversial at the end of the negotiations, could simply confirm the ambiguity, instead of dissipating it.99

References 34. Moreover, some of these States' declarations could have been ignored by others and could have had no influence on the final text. It could also be that a State's initial intention could have evolved during the negotiations and was no longer the same at the time of adoption of the final text.100 For instance, a State could have been convinced to abandon its original interpretation of a provision because this would be incompatible with another provision adopted during the negotiations. 35. Sometimes also, last-minute negotiations, early in the morning after a sleepless night, can have an impact on the relevance of much of the anterior preparatory work. Moreover, these last-ditch efforts to conclude a negotiation are often undocumented. As noted by a member of the Commission: Such amendments sometimes came near to rendering the text meaningless by adding phrases which were inconsistent with the rest. That was why, if the preparatory work was taken into consideration for the purpose of discovering the origin of the ideas underlying a treaty, and if last-minute amendments—sometimes forgotten and not recorded—were disregarded, there was a risk of losing sight of the meaning which the majority had considered as the ‘ordinary meaning’, and which had enabled the treaty to be adopted.101 36. Other reasons that could diminish the relevance of preparatory works and could even justify discarding them completely in some cases include the following:(p. 858) • the content of in camera discussions or of informal meetings during which compromises were reached, is not reported; 102 • the record of States' declarations 103 is an approximation, more or less accurate, of what has been said, depending on the quality of the Rapporteurs; 104 • only the declarations by States having spoken on a topic (or circulated a written proposal) are reported; 105 • the focus in some preparatory works is more on the negotiating process than on the content of the discussions. 106 These considerations are still valid today even if preparatory works are only used as supplementary means.

References

37. Beyond these considerations linked to the trustworthiness of preparatory work, some additional reasons explain why they were relegated to a secondary role. If they had been placed on an equal footing with the text of a treaty, many States might have been tempted to formulate a position which could one day be accepted by an interpreter rather than focusing solely on the need to conclude an agreement. This could have slowed and complicated the negotiating process.107 These same States, once the treaty concluded, (p. 859) could have, on the basis of the preparatory work, more easily challenged another State's understanding of the ‘ordinary’ meaning of a text.108 This kind of situation would be contrary to the objective pursued by the codification of rules of interpretation which is to facilitate the settlement of disputes between States by getting them to agree on common rules of interpretation109 and not to increase the frequency of differing interpretations. 38. Moreover, some noted the disadvantage for States that wish to accede to a treaty that they have not negotiated to have to consult in detail the preparatory work in order to understand its meaning without ever being certain of the correctness of their interpretation.110 The supplementary role given to preparatory work allowed these States, and in particular the newly independent ones, to decide to accede to a treaty on the basis, first and foremost, of the treaty's text.

The circumstances of the treaty's conclusion 39. Encompassing all elements existing at the time of the conclusion of the treaty that can illuminate its meaning, the analysis of these circumstances is, according to some authors, often a more efficient means than preparatory work to uncover what the intention of the parties was with regard to the provisions of a treaty.111 Independent from the internal development process of a treaty,112 they do not have the technical connotation of preparatory work. The only reason for relying on circumstances is their relevance for understanding the treaty. In turn, the nature of the treaty will help to determine which circumstances should be taken into account.

References 40. The criteria of contemporaneity of circumstances opens the door to an examination of elements existing at the time the treaty was concluded113 to explain its (p. 860) provisions.114 Was the treaty concluded to react to a new situation, to resolve a long-running dispute, to rebalance a military or economic relationship, to prevent disputes by codifying the law? Depending on the nature of the treaty, the interpreter could examine the political,115 economical,116 social, or other situation of the parties at the time of conclusion.117 He or she will determine in each case which circumstances are relevant and what weight to give to them.

References 41. In a recent decision, the Appellate Body of the WTO rejected a restrictive interpretation of ‘circumstances’ as understood by Article 32. In that case the European Communities were arguing that only the circumstances that have directly influenced the text of a treaty as well as the intention of the parties could be considered. According to the Appellate Body, the requirement is simply that a circumstance be relevant which means that it allows discerning ‘what the common intentions of the Parties were at the time of conclusion with respect to the treaty or specific provision’.118 The Body was of the view that the following factors can help to determine which circumstances are relevant:119 the temporal link between the circumstances and the conclusion of the treaty;120 the type and the legal nature of the circumstances such as an event, a document, or an instrument; real knowledge as opposed to access to knowledge through an official Act or published (p. 861) instrument;121 the purpose of a document, instrument, or event in relation to a treaty; and the reference to the circumstances during the negotiation of the treaty and their degree of influence on the negotiation.122 The Body also added that the circumstances in question are not limited to multilateral actions. An act by only one party can be useful to identify the problem that the parties wanted to address.123

References

Other means 42. Even if some authors seem to assert that the supplementary means only include those expressly mentioned in Article 32 (preparatory work and the circumstances of the treaty's conclusion),124 the text of Article 32 itself does not incorporate any such limit, as it refers to the means as ‘including’125 those two means expressly mentioned. During the Conference, various representatives noted the open-ended character of Article 32.126

References 43. Among other possible means, the Commission127 and the publicists128 have mentioned the subsequent practice of States,129 to the exclusion, however, of a uniform practice by all States as the latter is part of the general rule of interpretation as provided in Article 31(3)(b).130

References (p. 862) 44. If the subsequent practice of many States can be considered as a valid means by which to understand the meaning of a provision,131 what of the practice of a single State? It

certainly seems that it would be, a contrario, relevant in a case where this practice does not correspond with the interpretation put forward by that State.132 One also has to distinguish between a practice denounced by other States as opposed to one to which they do not react. Obviously, the former does not demonstrate a common intention.133 In fact, it is more likely that this practice will give rise to a dispute! However, in the latter, it could be that a common intention could be found in the silence of other States. If so, this practice would not be considered as part of the supplementary means, but rather as a subsequent practice as understood in Article 31(3)(b).134 There will be cases where it is difficult to determine with any certainty whether other States, by their conduct, have opposed or agreed with a subsequent unilateral practice (eg an act performed as part of the ratification process).135 In such a case the interpreter could consider what weight, relative to all other factors, it should give to this practice.

References 45. In some cases, the ICJ has considered other treaties concluded before or around the same time as the treaty to be interpreted.136 However, the Court has not expressly stated that these treaties are supplementary means.137

References (p. 863) 46. Finally, apart from the elements discussed supra, publicists also include among ‘supplementary means’ a number of rules of interpretation mostly deriving from domestic law. One finds among them rules familiar to the legal practitioner, such as contra proferentem, ejusdem generis, and expression unius est exclusio alterius.138 47. The fact that Article 32 neither includes a specific and exhaustive list of supplementary means, nor criteria to identify what these ‘other means’ could be, appears in theory to leave wide discretion to the interpreter to determine the relevant means in a given case. However, in practice, international jurisdictions have, to date, shown considerable restraint. They have mostly favoured recourse to preparatory work and, more generally, have used supplementary means to confirm the interpretation of a provision, and only exceptionally to determine its meaning. *

YVES LE BOUTHILLIER

Footnotes: 1 Report of the Commission to the General Assembly, YILC, 1964, vol. II, p 205, para. 16 and YILC, 1966, vol. II, p 223, para. 19; see also M. K. Yasseen, ‘L'interprétation des traités d'après la Convention de Vienne sur le droit des traités’, RCADI, 1976-III, vol. 151, p 79: Ce sont des moyens véritablement complémentaires: le qualificatif est bien choisi; il souligne que ce ne sont pas des moyens autonomes, mais simplement des moyens destinés à faciliter une interprétation régie par l'article 31: la règle générale d'interprétation. 2 P. M. Dupuy, Droit international public (5th edn, Paris: Dalloz, 2000), p 300. 3 As mentioned by Special Rapporteur Waldock in his Third Report, YILC, 1964, vol. II, p 56, para. 13, this point of view was strongly put forward by Sir Hersch Lauterpacht, in his capacity as Rapporteur on the law of treaties for the Institute of International Law. On the position of Lauterpacht, see also Ch. de Visscher, Problèmes d'interprétation judiciaire en droit international public (Paris: Pedone, 1963), who writes, at p 65, that Lauterpacht ‘ait assigné pour tâche à l'interprétation moins la recherche du sens du texte que celle des intentions “vraies,” au sens subjectif, des Parties, en préconisant notamment un très large recours aux travaux préparatoires’. De Visscher also addresses this issue at p 199 of the same book. 4 The amendment proposed by the United States would have included in one Article what are today Arts 31 and 32. For the text of this amendment see Official Records, Report of the Committee of the Whole, p 149. The main reason given for this proposal was that a text's ‘true’ meaning can only be found through an examination of all the elements at the disposal of the interpreter, whether these elements are internal or external to the text. See the remarks by the US representative, Official Records, Report of the Committee of the Whole, 1st session, 31st meeting, pp 167 and 168, paras 41–9. The representative of Vietnam also moved a similar amendment. See the text of this amendment, Official Records, Report of the Committee of the Whole, p 149, and see his remarks, Official Records, Report of the Committee of the Whole, 1st session, 31st meeting, p 168, para. 51. A number of other States also supported the view that an interpreter should be able to refer to all the interpretative means available without having to abide by a specific order. See the remarks by the representatives from Ghana (ibid, 31st meeting, pp 170 and 171, para. 70), Greece (ibid, p 172, para. 9), Italy (ibid, pp 176–7, para. 58), Austria (ibid, 33rd meeting, p 178, para. 13), Switzerland (ibid, p 180, para. 27), Portugal (ibid, p 183, para. 57), and Trinidad and Tobago (ibid, p 183, para. 58). 5 Seventy States voted against this amendment, 8 for, and 10 abstained. See Official Records, Report of the Committee of the Whole, p 150. 6 P. M. Dupuy, supra n 2. 7 As explained by I. Sinclair: ‘the text of a treaty must be presumed to be the authentic expression of the intentions of the parties…’, The Vienna Convention on the Law of Treaties (2nd edn, Manchester: Manchester University Press, 1984), p 115. 8 Within the Institute of International Law this position was successfully defended by Sir Eric

Beckett, AFDI, 1950, p 438. 9 See the commentary on Art. 31 in this work. See also A. Aust, Modern Treaty Law and Practice (2nd edn, Cambridge: Cambridge University Press, 2007), p 235. 10 Report of the Commission to the General Assembly, 1966, vol. II, p 220, para. 10. See also, among others, the opinion of Amado, YILC, 1964, vol. I, 766th meeting, p 287, para. 55 and Tunkin, YILC, 1966, vol. I, 870th meeting, p 190, para. 62 and 872nd meeting, p 201, para. 43. 11 Report of the Commission to the General Assembly, ibid. During the debate within the Commission many members expressed a preference for a less hierarchical approach. See in particular the intervention by Briggs who, noting that some elements included in Art. 31 (agreement regarding the interpretation of the treaty, subsequent practice, rules of international law) are not part of the text of the treaty, was of the view that there was no reason to consider other extrinsic elements to the text as subsidiary means, YILC, 1966, vol. I, 870th meeting, p 187, para. 35 and also 873rd meeting, p 203, para. 3. In response to Briggs, Ago argued that the elements inserted in Art. 31 were ‘ancillary elements of that text…’ while the elements of Art. 32 referred instead to the ‘history of the formulation of the text, in other words, the inquiry no longer centered on what the text said, but on how it had been arrived at’, YILC, 1966, vol. I, 873rd meeting, p 205, para. 23. As underlined even more clearly by Special Rapporteur Waldock, in his capacity as expert at the Vienna Conference to assist States, the interpretative elements in Art. 31 have, contrary to those in Art. 32, an ‘authentic and binding character’. For interventions in favour of conferring more importance to preparatory works see Tabibi, YILC, 1964, vol. I, 765th meeting, p 276, para. 25 and 1966, vol. I, 871st meeting, p 197, para. 46; Rosenne, YILC, 1964, vol. I, 766th meeting, p 283, para. 17 and YILC, 1966, vol. I, 872nd meeting, p 200, para. 32; Yasseen, YILC, 1964, vol. I, 769th meeting, p 313, para. 56; Briggg, YILC, 1966, vol. I, 870th meeting, p 188, para. 37; Tsuruoka, YILC, 1966, vol. I, 871st meeting, p 197, para. 41 and 872nd meeting p 200, para. 28; Bartoš, YILC, 1964, vol. I, 769th meeting, p 313, para. 61 and YILC, 1966, vol. I, 872nd meeting p 202, para. 52. In its report to the General Assembly, the Commission wrote that ‘Although a few governments indicated a preference for allowing a larger role to preparatory work…the majority appeared to be in agreement with the Commission's treatment of the matter’, YILC, 1966, vol. II, p 220, para. 10. 12 See for instance A. Favre, ‘L'interprétation objectiviste des traités internationaux’, ASDI, 1960, p 97, who writes that: On a dit que l'interprétation d'un traité est une opération d'art juridique, plutôt que science, que les règles d'interprétation peuvent seulement avoir le caractère de directives, non de prescriptions impératives. Il paraît certain que ces règles ne sont pas des normes juridiques, puisqu'elles ne sont pas de nature à créer des droits ou à fonder des obligations pour les sujets de droit, mais qu'elles doivent être observées dans la mesure où elles s'imposent comme règles du raisonnement juridique. En tout cas il ne saurait être question d'une application automatique des règles d'interprétation. Ainsi que le dit justement Schwarzenberger, chacune des diverses techniques d'interprétation est un bon serviteur, mais un maître dangereux. 13 Lord A. McNair, The Law of Treaties (Oxford: Oxford University Press, 1961), who writes at p 411: It is not possible to state any rules of law governing the question whether, and, if so, to what extent international courts and tribunals (and, not so often nationals courts when dealing with international instruments) are entitled to look at ‘preparatory work’… 14 See eg G. Fitzmaurice, ‘The Law and Procedure of the International Court of Justice, 1951– 1954’, BYBIL, 1957, p 212. 15 Report of the Commission to the General Assembly, supra n 1, p 200, para. 6. 16 Ibid, pp 204–5, para.1 5. 17 PCIJ, 1927, Series A, no. 10, p 12. However, at the Vienna Conference, the United States noted that even in this case ‘the Permanent Court of International Justice did in fact look at the preparatory work’, Official Records, Report of the Committee of the Whole, 1st session, 31st meeting, p 167, para. 43; see also Interpretation of the Statute of the Memel Territory (Preliminary Exceptions) in which the PCIJ stated: ‘As regards the arguments based on the history of the text, the Court must first of all point out that, as it has constantly held, the preparatory work cannot be adduced to interpret a text which is, in itself, sufficiently clear’, PCIJ, 1932, Series A/B, no. 47, p 249; see also Jurisdiction of the European Commission of the Danube between Galatz and Braia, PCIJ, 1927, Series B, no. 14, p 28. 18 ICJ Reports 1948, p 63. See also the Advisory Opinion of 1949 on Competence of the General Assembly for the Admission of a State to the United Nations, ICJ Reports 1950, p 8; and case Ambatielos, Preliminary Exception, ICJ Reports 1952, p 45. 19 See, among others, the Advisory Opinion on the Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory, PCIJ, 1933, Series A/B, no. 44, p 33. 20 See Polish Postal Service in Danzig, PCIJ, 1925, Series B, no. 11, p 39: ‘It is a cardinal principle of interpretation that words must be interpreted in the sense which they would normally have in their context, unless such interpretation would lead to something unreasonable or absurd’; Designation of the Workers' Delegate at the Third Session of the International Labour Conference, PCIJ, 1922, Series B, no. 1, p 22; Competence of the General Assembly for the Admission of a State to the United Nations, supra n 17. 21 See E. Canal-Forgues, ‘Remarques sur le recours aux travaux préparatoires dans le

contentieux international’, RGDIP, 1993, p 911; A. Aust, supra n 9, p 245; see also Rosenne, YILC, vol. I, 1964, p 283, para. 17, who notes that in many decisions the ICJ and arbitral tribunals have had recourse to preparatory work to confirm the meaning of a provision. He adds however that, in reality, these preparatory works could have played a role in initially determining the meaning of the provision. On this issue see infra n 34. 22 PCIJ, 1932, Series A/B, no. 50, p 380; see also the Case concerning the Payment of Various Serbian Loans, PCIJ, 1929, Series A, no. 20, p 30. 23 Legality of Use of Force (Serbia and Montenegro v Canada), 15 December 2004, para. 99, available at: http://www.icj-cij.org/docket/index.php? p1=3&p2=3&k=07&case=106&code=yca&p3=4 Avena and Other Mexican Nationals (Mexico v United States of America), 31 March 2004, para. 83, available at: http://www.icjcij.org/docket/files/128/8188.pdf; Sovereignty over Pulau Litigan and Pulau Sipadan (Indonesia/Malaysia), 17 December 2002, available at: http://www.icjcij.org/docket/files/102/7714.pdf; Oil Platforms (Islamic Republic of Iran v United States of America), ICJ Reports 1996, p 812, para. 23; Territorial Dispute (Libyan Arab Jamahiriya v Chad), ICJ Reports 1994, pp 21–2, para. 41; Arbitral Award of July 31 1989 (Guinea-Bissau v Senegal), ICJ Reports 1989, p 70, para. 48. In his dissenting judgment in the Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Jurisdiction and Admissibility, ICJ Reports 1995, p 28, Judge Schwebel notes that the Vienna Convention is accepted by the Court ‘as an authoritative codification of international law’. He makes this observation despite the fact that he also notes that the provisions on the interpretation of treaties ‘were particularly contested, to some extent in the International Law Commission which composed them, and much more acutely in the United Nations Conference on the Law of Treaties itself’. See also Certain Matters of Mutual Assistance in Criminal Matters (Djibouti v France), 4 June 2008, para. 153, available at: http://www.icjcij.org/docket/files/136/14550.pdf. 24 In the Beagle Channel Arbitration (Argentina v Chile), the tribunal referred to the ‘traditional canons of treaty interpretation now enshrined in the Vienna Convention on the Law of Treaties’, ILR, 1979, p 127. Likewise, the majority in the Young Loan Arbitral Award stated that ‘the Convention properly reflects both the present and the past state of international treaty law since, as regards interpretation at least, it is restricted to the codification of customary law in force’, ILR, 1980, p 529. 25 Japan—Alcoholic Beverages, WT/DS/8/AB/R, Report of the Appellate Body of the Dispute Settlement Mechanism, 6 October 1996, p 10. 26 Golder case, 21 February 1975, Series A, no. 18, pp 13–14, paras 29–30: The Court is prepared to consider, as do the Government and the Commission, that it should be guided by Articles 31 to 33 of the Vienna Convention of 23 May 1969 on the Law of Treaties…[which] enunciate in essence generally accepted principles of international law to which the Court has already referred on occasion. 27 J. Combacau and S. Sur, Droit international public (6th edn, Paris: Montchrestien, 2004), p 172: ‘Les dispositions de la Convention de Vienne, bien qu'elles ne visent que les traités, sont en l'occurrence coutumières et s'appliquent au processus interprétatif dans son ensemble’. Ian Sinclair, on the basis of the statements by the various international tribunals mentioned supra, writes that: ‘Accordingly, there is now strong judicial support for the view that the rules of treaty interpretation incorporated in the Convention are declaratory of customary international law’, I. Sinclair, supra n 7, p 19. 28 See Ago, YILC, 1964, vol. I, 765th meeting, p 280, para. 78; see also Verdross, ibid, p 279, para. 61. 29 We note, as mentioned by Rosenne, that some Articles of the Vienna Convention will indeed require, by their own wording, recourse to preparatory works in a given treaty. He mentions, eg Art. 14(1)(d), which refers expressly to the intent of parties ‘as expressed during the negotiation’, YILC, 1966, vol. I, 872nd meeting, p 220, para. 30. 30 Supra n 27. 31 This is supposing that such an intent exists. As E. Beckett writes, supra n 8: On sait par expérience que souvent la divergence qui surgit entre les parties à des traités résulte de quelque chose à quoi les parties n'ont jamais songé lorsque le traité a été conclu et que, par conséquent, elles n'avaient absolument aucune intention commune à ce sujet. Dans d'autres cas, les parties peuvent constamment avoir eu des intentions divergentes sur la question qui fait l'objet du différend. Chacune des parties s'est délibérément abstenue de soulever la question, espérant peut être que si elle se posait, le texte adopté donnerait le résultat souhaité par elle. The representative from Uruguay at the Vienna Conference shared this view, Official Records, Report of the Committee of the Whole, 1st session, 31th meeting, p 170, para. 64, as did the representative of the United Kingdom, ibid, 33rd meeting, p 177, para. 4. See also K. J. Vandevelde who, in a very interesting article, mentions various scenarios where, at the end of the negotiations, the parties probably do not share a common intention on a provision of a treaty: ‘Treaty Interpretation from a Negotiator's Perspective’, Transnat'l L, 1988, p 281. 32 E. Canal-Forgues, supra n 21, pp 910 and 915. See Legality of Use of Force (Serbia and Montenegro v Canada), supra n 23, para. 102; Sovereignty over Pulau Litigan and Pulau Sipadan (Indonesia/Malaysia), supra n 23, para. 53; Arbitral Award of July 31 1989 (GuineaBissau v Senegal), supra n 23, p 72, para. 54; Territorial Dispute (Libyan Arab Jamahiriya v Chad), supra n 23, p 27, para. 55; Border and Transborder Armed Actions (Nicaragua v

Honduras), ICJ Reports 1988, p 85, para. 37; Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Palestinian Occupied Territories, 4 July 2004, paras 95 and 109, available at: http://www.icj-cij.org/docket/files/131/1671.pdf; in the case LaGrand (Germany v United States of America), 27 June 2001, para. 104, available at: http://www.icjcij.org/docket/files/104/7736, the Court, having interpreted a provision according to Art. 31, nonetheless added that the relevant preparatory works had not prevented its conclusion. In the case Maritime Delimitation and Territorial Questions between Qatar and Bahrain, supra n 23, pp 21–2, paras 40 and 41, the Court examined various elements in the preparatory works to try to confirm its interpretation but found that none were conclusive. 33 Ch. de Visscher, supra n 3, p 117. 34 E. Canal-Forgues, supra n 21, pp 911–12. 35 See Rosenne, YILC, 1964, vol. I, 766th meeting, p 283, para. 17. For a similar view see also de Luna, YILC, 1964, vol. I, 766th meeting, p 285, para. 40. However, see Aréchaga, who, while acknowledging this difficulty, was nevertheless of the view that preparatory work should only play a secondary role: As for the preparatory work, it was not always easy to draw the line between confirming a view previously reached and forming a view, but that depended on the inner mental processes of the interpreter. However, the distinction was necessary and would reinforce the Commission's 1964 thesis that the terms of a treaty might possess an objective meaning of their own which was independent of the psychological intentions of the authors (YILC, 1966, vol. I, 872nd meeting, p 201, para. 41). 36 See a mention of this scenario in H. Kindred et al, International Law Chiefly as Interpreted and Applied in Canada (5th edn, Toronto: Emond Montgomery, 1993), p 103 and D. J. Harris, Cases and Materials on International Law (London: Sweet & Maxwell, 1998), p 819. 37 E. Canal-Forgues, supra n 21, p 913. 38 Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Jurisdiction and Admissibility, supra n 23, p 39. See also S. Schwebel, ‘May Preparatory Work be Used to Correct Rather than Confirm the “Clear” Meaning of a Treaty Provision?’ in J. Makarczyk (ed.), Theory of International Law at the Threshold of the 21st Century (The Hague: Kluwer Law International, 1996), pp 173–81. 39 A. Aust, supra n 9. 40 M. K. Yasseen, supra n 1, p 80. 41 This scenario, as well as the one previously mentioned, are discussed in K. J. Vandevelde, supra n 31, pp 296–7. 42 See the doubts expressed by some commissioners, eg Ruda, YILC, 1964, vol. I, 766th meeting, p 283, para. 11: ‘If the general rule of article 70 was applied and a clear conclusion was reached there was no need for confirmation. The need for recourse to other methods arose only if the matter was unclear’. See also at YILC, 1964, vol. I, 769th meeting, p 314, para. 63 as well as Rosenne, YILC,1964, vol. I, 769th meeting, p 314, para. 64. 43 Report of the ILC to the General Assembly, YILC, 1964, vol. II, p 175, para. 15 and Report of the ILC to the General Assembly, YILC, 1966, vol. II, pp 222–3, para. 18. See also the Third Report of Waldock, 1964, vol. II, p 58, para. 20 and his comments at YILC, 1964, vol. I, 767th meeting, p 328, para. 65; see also Ago, YILC, 1964, vol. I, 766th meeting, pp 287–8, para. 64. However, the Commission decided not to use the term ‘verify’ instead of ‘confirm’ because, as explained by Waldock, this ‘would have gone near to bringing preparatory work in the first processes of interpretation’, Official Records, Report of the Committee of the Whole, 1st session, 33rd meeting, p 184, para. 69. 44 See the statement by the representative of Poland, Official Records, Report of the Committee of the Whole, 2nd session, 13th meeting, p 58, para. 68; see also the intervention by the representative of Portugal, Official Records, Report of the Committee of the Whole, 1st session, 33rd meeting, p 183, para. 56 who also mentioned this hypothesis in connection with the circumstances existing at the time of the conclusion of the treaty. 45 See the Report of the Commission to the General Assembly, YILC, 1966, vol. II, p 220, para. 10: At the same time, it pointed out that the provisions of Article 28 by no means have the effect of drawing a rigid line between the ‘supplementary means’ of interpretation and the means included in article 27. The fact that article 28 admits recourse to the supplementary means for the purpose of ‘confirming’ the meaning resulting from the application of article 27 establishes a general link between the two articles and maintains the unity of the process of interpretation. This compromise made the task of the Special Rapporteur easier by the time of the Conference when he had to justify the supplementary role of preparatory works to confirm a text. Referring to this function of preparatory works, he explained that the Commission certainly did not have the ‘intention of discouraging automatic recourse to preparatory work for the general understanding of a treaty’, Official Records, Summary Records of the plenary meetings and the Committee of the Whole, 1st session, 33rd meeting, p 184, para. 69. 46 K. J. Vandevelde, supra n 31, p 296, explains this dilemma well: it is unclear that courts in practice really adhere to international law as codified in articles 31 and 32 of the Vienna Convention. The cornerstone of the Vienna Convention is its requirement that courts refrain from inquiring into the parties' actual

intentions if the provision to be interpreted is clear on its face. The Vienna Convention does allow a court to refer to the negotiating history, however, even when the treaty text is clear, in order to confirm its interpretation—a rule that borders on the absurd. If the meaning is clear, a court need not confirm it, and examining the negotiating history serves no point. If a court examines the negotiating history anyway but in fact disconfirms the plain meaning, the court has no basis for following the interpretation that the history reveals. This absurdity is not manifest in practice because courts probably scrutinize the negotiating history whether the text seems clear or not. If the negotiating history supports a court's first impression, then the court labels the text as clear and can cite the negotiating history as confirming that meaning in accordance with article 32. If the negotiating history disconfirms the court's first impression, it can disregard it and cite the negotiating history in accordance with article 32. Of course, this procedure is contrary to the law as codified in articles 31 and 32, under which the negotiating history cannot vary the meaning of a clear textual provision. See also M. Ris, ‘Treaty Interpretation and ICJ Recourse to Travaux Préparatoires: Towards a Proposed Amendment of Articles 31 and 32 of the Vienna Convention on the Law of Treaties’, Boston Coll Int'l & Comp LR, 1991, p 129. 47 Official Records, Report of the Committee of the Whole, 1st session, 31st meeting, p 167, para. 41; cf Lord A. McNair, supra n 13, p 372. 48 Article 32 states that the interpreter ‘may’ have recourse to the supplementary means to determine the meaning. However, it seems that if an interpreter has not been able to find an acceptable meaning through the use of Art. 31, he or she has no other choice but to ‘have recourse’ to Art. 32. 49 U. Linderfalk, On the Interpretation of Treaties: The Modern International Law As Expressed in the 1969 Convention on the Law of Treaties (Dordrecht: Springer, 2007), p 45: Saying that the meaning of a treaty is ‘ambiguous’ is tantamount to saying that the first-order rules of interpretation laid down in international law can be used to support two conflicting interpretation rules. If a meaning is ‘obscure,’ it means that none of the first-order rules of interpretation laid down in international law are applicable. 50 Report of the Commission to the General Assembly, YILC, 1966, vol. II, p 219, para. 6. 51 See E. Canal-Forgues, supra n 21, p 915. This is somewhat surprising as one would expect that a skilled interpreter could find an ambiguity since a term is generally susceptible to having more than one ‘ordinary’ meaning as noted by Vandevelde, supra n 31, pp 287–8; see also A. Aust, supra n 9, p 230: ‘For multilateral treaties, the greater the number of negotiating States, the greater is the need for imaginative and subtle drafting to satisfy competing interests and concerns. The process inevitably produces some wording that is unclear or ambiguous’. See also R. Sullivan, Driedger on the Construction of Statutes (3rd edn, Toronto: Butterworths, 1994), pp 430–1, who observes the same phenomena in legislative interpretation. In the case of Sovereignty over Pulau Litigan and Pulau Sipadan (Indonesia/Malaysia), supra n 23, para. 53, the Court noted the ambiguity of the words ‘across the Island of Sebittik’. According to Malaysia, this expression was only meant to delimit the land territory of the island in question while Indonesia was of the view that the intent was to delimit beyond it. However, the Court did not endorse either of these competing interpretations. It limited itself to comment that: the word is not devoid of ambiguity and is capable of bearing either of the meanings given to it by the Parties. A line established by treaty may indeed pass ‘across’ an island and terminate on the shores of such island or continue beyond it. See also the decision of a Panel of the Dispute Settlement Mechanism of the World Trade Organization (WTO), in the case of Chile—Price Band System and Safeguard Measures Relating to Certain Agricultural Products, 3 May 2002, WT/DS207/R, para. 7.35, where it concluded that the text and context for the words ‘variable import levy’ and ‘minimum import price’, included in a note to Art. 4.2 of the Agreement on Agriculture, do not enable us to determine the meaning of those terms without ambiguity. The determination of their meaning should therefore include an analysis which ‘go[es] beyond a purely grammatical or linguistic interpretation.’ Pursuant to Article 32 of the Vienna Convention, we will take recourse to supplementary means of interpretation. Note, however, that the Appellate Body decided subsequently that the panel did not make proper use of Art. 32. See WT/DS207/AB/R, para. 230. The Appellate Body found however an ambiguity in the cases of United States—Measures Affecting the Cross Border Supply of Gambling and Betting Services, 7 April 2005, WT/DS285/AB/R, para. 195, stating that the application of the general rule of interpretation found in Art. 31 did not allow it to determine if the expression ‘other recreational services’ included ‘gaming and betting’. It had to have recourse to supplementary means to answer that question. 52 See U. Linderfalk, supra n 49, p 45: ‘If a meaning is “absurd or unreasonable,” it means that it cannot be rationally defended’. 53 O. Corten, L'Utilisation du ‘raisonnable’ par le juge international (Brussels : Bruylant, 1997), p 53. See also Waldock, YILC, 1966, vol. I, 873rd meeting, p 206, para. 39, who gives as an example ‘a drafting error which might give, as a matter of language, a perfectly possible interpretation, but one which was “absurd” in the light of the object of the particular treaty’. 54 ICJ Reports 1961, pp 32 and 33. In that case Thailand had renewed a declaration of acceptance of jurisdiction of the PCIJ, a court that no longer existed at the time of the renewal.

Cambodia argued that this declaration was invalid and could not confer jurisdiction to the ICJ. The Court rejected this argument, noting that: ‘Thailand, which was fully aware of the nonexistence of the former Permanent Court, could have had not other purpose…than to recognize the compulsory jurisdiction of the present Court…’ In the case of Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Jurisdiction and Admissibility, supra n 23, p 19, para. 35, the Court had to determine the meaning and scope of the following sentence: ‘Once that period has elapsed, the two Parties may submit the matter to the International Court of Justice.’ In reaching the conclusion that the segment of the sentence ‘Once that period has elapsed’ necessarily implied a right by a party to seize the Court on its own, the Court wrote: ‘Any other interpretation would encounter serious difficulties; it would deprive the phrase of its effect and could well, moreover, lead to an unreasonable result’. See O. Corten, supra n 53. 55 Reuter, YILC, 1966, vol. I, 771st meeting, p 215, para. 22. 56 Tsuruoka, YILC, 1966, vol. I, 872nd meeting, p 200, para. 28; Rosenne, YILC, 1966, vol. I, 873rd meeting, p 205, para. 30. Waldock, supra n 53, acknowledges that in practice there will be very few cases where the interpretation will lead to a result that is either manifestly absurd or unreasonable but he is of the view that it was nevertheless necessary to provide for this possibility. 57 Report of the ILC to the General Assembly, YILC, 1966, vol. II, p 223, para. 19. 58 M. K. Yasseen, supra n 1, p 79: Cet article ne donne pas d'énumération exhaustive de ces moyens; il en mentionne les plus importants, les travaux préparatoires et les circonstances dans lesquelles le traité a été conclu. Il nous semble que cette technique s'accommode du rôle secondaire assigné aux moyens complémentaires. Il est utile de donner à l'interprète, dans un cas qui se relève compliqué, une certaine liberté dans le choix des moyens qui pourraient jeter quelque lumière sur le sens du traité. 59 See Ago, YILC, 1966, vol. I, 872nd meeting, p 202, para. 50, who noted that it was desirable to identify expressly preparatory works and the circumstances surrounding the conclusion of a treaty as these are the ‘most often used’. 60 Report of the ILC to the General Assembly, YILC, 1966, vol. II, p 223, para. 20. However, given that the means expressly mentioned in Art. 32 are not meant to be exhaustive, the fears of the Commission are probably exaggerated since the interpreter could consider other relevant evidence as ‘other supplementary means’. See infra. 61 As noted by Linderfalk, supra n 49, p 241: The reasonable conclusion is that the parties to the Convention simply wished to allow negotiating States, by freely choosing the particular making process, to determine themselves what the meaning of ‘the preparatory work’ would be for their specific treaty. 62 YILC, 1966, vol. I, 872nd meeting, p 201, para. 35; see also Linderfalk, supra n 49, p 240: The problem is that in international law, no general rule can be found stating the procedure for making a treaty. In principle, negotiating States are free to choose the mode that they consider best suited to their particular task. 63 D. J. Harris, supra n 36, p 818; A. Aust, supra n 9, p 246. 64 See Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Jurisdiction and Admissibility, supra n 23, pp 21–2, para. 41, where the Court examined, as preparatory work, two draft texts. See also Avena and Other Mexican Nationals (Mexico v United States of America), supra n 23, para. 86; A. Aust, supra n 9. 65 See the statement by the representative of the United Kingdom, Official Records, Report of the Committee of the Whole, 1st session, 33rd meeting, p 177, para. 2. 66 See Sovereignty over Pulau Litigan and Pulau Sipadan (Indonesia/Malaysia), supra n 23, para. 54. 67 I. Sinclair, supra n 7, p 130; A. Aust, supra n 9, p 246. 68 See eg Frontier Dispute (Burkina Faso v Republic of Mali), ICJ Reports 1986, p 608, para. 100. In this case the Court studied many documents which it considered as preparatory work, including a ‘geographical outline’ and maps transmitted by letter-telegram. See also Sovereignty over Pulau Litigan and Pulau Sipadan (Indonesia/Malaysia), supra n 23, para. 54. 69 Report of the ILC to the General Assembly, YILC, 1964, vol. II, p 203, para. 13 and Report of the ILC to the General Assembly, YILC, 1966, vol. II, p 221, para. 14. See also the Third Report of Waldock, YILC, 1964, vol. II, pp 57–8, para. 19. According to the representative of Uruguay at the Vienna Conference, some elements that are now part of the context were traditionally regarded as preparatory work. As a result of the Vienna Convention, agreements of States with regard to some documents can now be considered as part of the context. Official Records, Report of the Committee of the Whole, 1st session, 32nd meeting, p 170, para. 66. 70 Ago had suggested, without success, to add to the text the following words: ‘and drawn up before or in connection with its conclusion’, YILC, 1964, vol. I, 766th meeting, p 284, para. 32. See also the commentary on Art. 31 in this work. 71 M. K. Yasseen, supra n 1, p 37. 72 U. Linderfalk, supra n 49.

73 D. J. Harris, supra n 36, p 818, suggests that, in some cases, the work of independent expert bodies can be considered as preparatory work, in particular those of the ILC and the Human Rights Commission (since replaced by the Human Rights Council). It seems incorrect, however, to qualify this latter Commission as an expert body as it was composed of States representatives. Having said that, one could still ask the question whether the debates and resolutions of this Commission could be considered, in some cases, as preparatory work. The ICJ seems to have answered this question affirmatively in an Advisory Opinion, Legal Consequences of the Construction of a Wall in the Palestinian Occupied Territories, supra n 32, para. 109 when, to determine the scope of Art. 2 of the International Covenant on Civil and Political Rights, it relied on a discussion of a preliminary draft of the Covenant in the Human Rights Commission to confirm its interpretation. 74 Ch. de Visscher, supra n 3, p 115. 75 See Yasseen who, as a member of the Commission, considered as preparatory work: ‘all the material which the parties had had before them when drafting the final text’. He adds the following concerning the treaties that resulted from the work of the Commission: The text of a convention of the kind in question was adopted by a conference of plenipotentiaries which took the Commission's draft as a basis for discussion. The articles and the accompanying commentaries were discussed at some length and it quite often happened that one of the Commission's articles was adopted as it stood… (YILC, 1966, vol. I, 873rd meeting, p 226, para. 25) See also M. Yasseen, supra n 1, p 84. Articles 31 and 32 of the Convention are a case in point as their wording is essentially the one recommended by the Commission. For a different view see Rosenne, YILC, 1966, vol. I, 872nd meeting, p 222, para. 35, who raised the two following arguments: ‘the first was that the Commission's drafts were rather remote from diplomatic conferences and the second that the members of the Commission did not represent States, but acted in their personal capacities’. For an approach in between those taken by Yasseen and Rosenne, see Tunkin who, while accepting that the work of the Commission can be considered as preparatory work, was of the view that one must first have recourse to the documents produced during the diplomatic conference leading to a treaty since the conference could have decided not to adopt or substantially to modify a project of articles prepared by the Commission, YILC, 1966, vol. I, 873rd meeting, p 227, para. 26. 76 See eg A. Aust, supra n 9, p 198; Linderfalk, supra n 49, pp 17 and 242–3. Likewise, the representative of the United States at the Vienna Conference seemed to share the view that the ILC debates would be part of the preparatory work of an eventual Convention on the Law of  Treaties. Official Records, Report of the Committee of the Whole, 1st session, 31st meeting, p 168, para. 45. 77 Kasikili/Sedudu Island (Botswana/Namibia), ICJ Reports 1999, p 1075, para. 49. Moreover, in their Individual Opinions, some judges of the ICJ have qualified the work of the ILC as preparatory work. See the Dissenting Opinion of Judge Schwebel in Territorial Questions between Qatar and Bahrain, Jurisdiction and Admissibility, supra n 23, pp 28–9, where he refers to the debates within the Commission as preparatory work to the Vienna Convention on the Law of Treaties; see the Dissenting Opinion of Weeramantry in Kasikili/Sedudu Island (Botswana/Namibia), supra n 23, pp 1159–61, paras 23–5. 78 See Territorial and Maritime Dispute (Nicaragua v Honduras), 8 October 2007, para. 280, available at: http://www.icj-cij.org/docket/files/120/14075.pdf. 79 Linderfalk, supra n 49, p 17 includes within ‘preparatory work’ documents produced outside the diplomatic negotiations ‘insofar as states can arguably be said to have had the possibility and a reasonable cause to comment upon them’. 80 Territorial Dispute (Libyan Arab Jamahiriya v Chad ), supra n 23, pp 27–8, para. 55. In the case Border and Transborder Armed Actions (Nicaragua v Honduras), supra n 32, pp 86–7, para. 39, the Court mentioned the report on the Conference of Bogota prepared by the delegation of the United States. 81 M. Ris, supra n 46, p 133. This means that these documents are outside the definition of preparatory work documents that are, eg, subsequently part of the States' ratification process. See Linderfalk, supra n 49, pp 244–5 and 249. However, this type of document could be qualified as ‘other supplementary means’ and could be particularly relevant when it contradicts a position put forward by a State which drafted it. See infra. 82 M. K. Yasseen, supra n 1, p 83; M. Ris, supra n 46, p 112. 83 Ch. de Visscher, supra n 3, p 115. 84 E. Canal-Forgues, supra n 21, p 907. 85 See the representative from France, who, in arguing that preparatory work should play a secondary role, considered some of them as ‘unilateral’ documents. Official Records, Report of the Committee of the Whole, 1st session, 32nd meeting, pp 175–6, para. 47. See the decisions of the Supreme Court of Canada in the cases Canada v Ward [1993] 2 SCR 689 and Pushpanathan v Canada [1998] 1 SCR 982, in which the court took into account the statements by States' representatives during the negotiations for the adoption of the 1951 Refugee Convention to interpret some provisions of the Convention. 86 A. Aust, supra n 9, p 246. 87 See Ago, YILC, 1964, vol. I, 766th meeting, p 301, para. 65; R. Jennings and A. Watts, Oppenheim's International Law (9th edn, Harlow: Longman, 1992), p 1277. 88 Of course, States also expect international tribunals to explain why they are not convinced of the relevance of ‘preparatory work’ in a given case. See Ch. de Visscher, supra n 3, p 117,

where he writes: Un jugement n'est pas la démonstration d'un théorème de géométrie. Sa valeur convaincante en fait tout le prix et, pour y atteindre, il lui faut tenir compte de l'argumentation des plaideurs. La Cour ne peut pas laisser sans réponse une argumentation largement appuyée sur les travaux préparatoires; elle se doit de la rencontrer pour peu qu'elle soit plausible, tant pour achever de former sa conviction personnelle que par égard pour les gouvernements représentés devant elle. 89 Oil Platforms (Islamic Republic of Iran v United States of America), supra n 23, p 814, para. 29. 90 Report of the ILC to the General Assembly, YILC, 1964, vol. II, p 205, para. 17. On this issue Rosenne observes that ‘With regard to multilateral treaties, his own experience suggests that States subsequently acceding to a treaty did not show any hesitation in making use of the preparatory work done at a conference in which they had not participated’, YILC, 1966, vol. I, 872nd meeting, pp 200–1, para. 34. 91 Territorial Jurisdiction of the International Commission of the River Oder, PCIJ, Series A, no. 23, p 42. 92 See M. K. Yasseen, supra n 1, p 89. We note that some writers, despite the comment by the ILC, are nevertheless of the view that preparatory works cannot be used against States that were not part of the negotiations. See eg J. Combacau and S. Sur, supra n 27, p 177. 93 M. K. Yasseen, supra n 1, pp 89 and 90; E. Canal-Forgues, supra n 21, p 906; Linderfalk, supra n 49, pp 243–4. 94 In its report to the General Assembly, the Commission mentions, as supplementary means, preparatory works that, without having been published, were nevertheless accessible. Report of the ILC to the General Assembly, YILC, 1966, vol. II, p 223, para. 20. 95 See, among others, the view of Rosenne that only ‘published and available preparatory work…’ and not ‘other material not made available before the State concerned became a party to the treaty’ are opposable: YILC, 1966, vol. I, 872nd meeting, p 201, para. 34; see also Castrén, YILC, 1964, vol. I, 766th meeting, p 285, para. 34; A. Aust, supra n 9, p 247: ‘In the case of a multilateral treaty which is open to states which did not take part in its negotiation, the travaux can probably be invoked in a dispute to which they are parties, at least if they have been published or were otherwise available before those states became parties’ (emphasis added). See Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Jurisdiction and Admissibility, supra n 23, p 22, para. 41 in which Qatar argues that a draft text prepared by Saudi Arabia could not be considered as preparatory work on the basis that ‘it was never sent the draft in question’. The Court noted Qatar's objection but did not reply as it did not rely on the text in question. In his Dissenting Opinion, Judge Schwebel, who wanted to rely on preparatory work, noted that the works in question were neither secret nor known by only one of the parties: ibid, p 39. 96 See Rosenne, YILC, 1966, vol. I, 872nd meeting, p 200, para. 33, who, while supporting the recourse to preparatory works, notes that in some cases these prove ‘quite inconclusive’. See also the representative from Uruguay at the Vienna Conference who observed that ‘there was generally something in the preparatory work that could be found to support almost any contention’, Official Records, Report of the Committee of the Whole, 1st session, 31st meeting, p 170, para. 64; see a similar statement by the representative of Argentina, ibid, 33rd meeting, p 180, para. 25. See Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Jurisdiction and Admissibility, ibid, p 21, para. 40, where the Court examined elements of the preparatory works in looking for confirmation of its interpretation. However, it did not find these conclusive. Among the publicists, see E. Canal-Forgues, supra n 21, p 912; I. Sinclair, supra n 7, p 116: ‘If the intentions of the parties, or the object or purpose of a treaty, do not reveal themselves from a careful analysis of the text, it is unlikely that the travaux préparatoires will shed a pellucid light upon the matter’. See also A. Aust, supra n 9. 97 See the comment by the representative of France, Official Records, Report of the Committee of the Whole, 1st session, 32nd meeting, pp 175–6, para. 47. 98 M. K. Yasseen, supra n 1, p 85. 99 See Bartoš, YILC, 1964, vol. I, 766th meeting, p 287, para. 57; see Ch. de Visscher, supra n 3, p 116 who relies on the Advisory Opinion on the Interpretation of the Convention of 1919 Concerning Employment of Women during the Night, supra n 22, in which the PCIJ concluded from its examination of preparatory works that: ‘As many phrases can be found which tell one way as the other’; see also M. K. Yasseen, supra n 1, p 85, who explains as follows the ambiguity in some texts: il est à remarquer que l'obscurité du texte trouve souvent son origine dans les travaux préparatoires. D'ailleurs, cette obscurité peut n'être que le résultat d'une situation qui n'a pas été clarifiée ou n'a pu être clarifiée lors des négociations. Le désir, combien justifié, de faire réussir une conférence, d'assurer la majorité requise, aboutit parfois à l'adoption de formules vagues ou ambiguës. Il ne faut surtout pas écarter la possibilité qu'à dessein les parties évitent une certaine précision afin de se ménager à l'avenir une échappatoire commode, pour se dérober à une obligation gênante. See also A. Aust, supra n 9, p 247. 100 See the comment by the representative of the United Kingdom, Official Records, Report of the Committee of the Whole, 1st session, 33rd meeting, p 178, para. 8; M. K. Yasseen, supra n 1; M. Ris, supra n 46, p 113.

101 M. Bartoš, YILC, 1966, vol. I, 870th meeting, p 199, paras 95–6; see also his comments in YILC, 1964, vol. I, 766th meeting, p 287, para. 57. A. Aust, supra n 9, p 246, recalls eg how chaotic the negotiations of Art. 3bis of the Chicago Convention 1944 were and, as a result, he is of the view that the wording of the provision is not as clear as it should have been. 102 See the Report of the ILC to the General Assembly, YILC, 1966, vol. II, para. 10 where the Commission mentions the gaps existing in negotiating documents; see also de Luna, YILC, 1964, vol. I, 766th meeting, p 285, para. 36; see comments by the representative of France, Official Records, Report of the Committee of the Whole, 1st session, 32nd meeting, pp 175–6, para. 47, of the United Kingdom, supra n 9, 33rd meeting, p 178, para. 8, of Kenya, ibid, p 180, para. 29; see also M. K. Yasseen, supra n 1, p 85; A. Aust, supra n 9, who gives as an example the negotiations during the Third Conference of the United Nations on the Law of the Sea, which lasted from 1973 to 1982. In the case Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Jurisdiction and Admissibility, supra n 23, p 21, para. 41, the Court noted that the preparatory work ‘must be used with caution in the present case, on account of their fragmentary nature’. Note, however, that in their Dissenting Opinions, Judge Schwebel (p 39) and Shahabuddeen (p 58) both considered the preparatory works sufficient. 103 See the comment by the representative of the United Kingdom, Official Records, Report of the Committee of the Whole, 1st session, 33rd meeting, p 178, para. 8. 104 M. K. Yasseen, supra n 1, p 85. On this issue, A. Aust, supra n 9, p 246, writes: The summary record of a conference prepared by an independent and skilled secretariat, such as that of the United Nations, will carry more weight than an unagreed record produced by a host state or a participating state. However, even the records of a conference served by an independent and expert secretariat will generally not tell the whole story. See also I. Brownlie, Principles of Public International Law (5th edn, Oxford: Oxford University Press, 1998), p 636: ‘In the case of multilateral agreements, the records of conference proceedings, treaty drafts, and so on may be confused or inconclusive’. 105 See the comment by the representative of the United Kingdom, Official Records, Report of the Committee of the Whole, 1st session, 33rd meeting, p 178, para. 8. For a similar point of view see Amado, YILC, 1966, vol. I, 873rd meeting, p 207, para. 45 and at the Vienna Conference in his quality as representative of Brazil, Official Records, Report of the Committee of the Whole, 1st session, 32nd meeting, p 191, para. 53. 106 J. Combacau and S. Sur, supra n 27, p 177; in its Advisory Opinion on the Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, ICJ Reports 1989, p 193, para. 46, the Court stated: Nor is there really any guidance in this respect to be found in the travaux preparatoires of the General Convention. The Convention was initially drafted and submitted to the General Assembly by the Preparatory Commission set up at San Francisco in June 1945; that initial draft did not contain anything corresponding to the present Article VI. That article was added by the Sub-Commission on Privileges and Immunities established by the Sixth Committee to examine the draft, but the contemporary official records do not make it possible to ascertain the reasons for the addition. 107 See the statement of the representative of the United Kingdom: ‘If preparatory work were to be placed on equal footing with the text of the treaty itself, there would be no end to debate at international conferences’: Official Records, Report of the Committee of the Whole, 1st session, 33rd meeting, p 178, para. 8. See also the statement by the representative of Madagascar, ibid, p 183, para. 61. 108 See the statement of the representative of the United Kingdom explaining that he could not support the US proposal to confer the same value to preparatory work as to the text because such a proposal ‘was likely to open the door to a never-ending stream of inquiry for would-be interpreters, and to encourage unnecessary disputes’, Official Records, Report of the Committee of the Whole, 1st session, 33rd meeting, p 178, para. 10. 109 See the statement by the representative of the United Kingdom, ibid; see also the statement by de Luna, YILC, 1966, vol. I, 871st meeting, p 194, para. 16. 110 See the statement by the representative of the United Kingdom, supra n 108. 111 P. M. Dupuy, supra n 2, p 300; Bartoš, YILC, 1964, vol. I, 766th meeting, p 300, para. 57; see also the statement by the representative of Trinidad and Tobago, Official Records, Report of the Committee of the Whole, 1st session, 33rd meeting, p 183, para. 59. This opinion is not however shared by all the publicists. See, among others, M. K. Yasseen, supra n 1, p 92: ‘Mais ni la doctrine ni la jurisprudence ne semblent être concluantes en ce qui concerne la valeur de ce procédé et l'importance de son rôle dans le processus interprétatif’. See Territorial Questions between Qatar and Bahrain, Jurisdiction and Admissibility, supra n 23, p 23, para. 42, where the Court found that, in this case, the circumstances did not ‘provide any conclusive supplementary elements for the interpretation’. 112 However, as noted by the commentary on Art. 31 in this work, there is sometimes a fine line between the ‘context’, as defined in Art. 31, and the circumstances surrounding the conclusion of a treaty. See also Linderfalk, supra n 49, pp 248–9: Many of the phenomena that are merely closed to being defined as the context or the object and purpose of the treaty, and thus cannot be taken into account by appliers using these means of interpretation, can instead be considered at the stage when

appliers use ‘the circumstances of [the treaty's conclusion].’ Examples of such phenomena include the cause for the treaty; agreements relating to the treaty, made in connection with the treaty's conclusion, but which are not governed by international law, or which are not made by all treaties parties; and international agreements entered into either before or in connection with the conclusion of a treaty, but which are not governed by international law, or which are not applicable in the relationship between all the treaty parties. 113 This does not mean that this circumstance needs to come into existence at the time of the conclusion of the treaty, but rather that it had to exist at the time. As Linderfalk, supra n 49, p 246 notes: Several authors refer to ‘the circumstances of [the treaty's] conclusion’, both as ‘the circumstances of the Parties at the time [it] was entered into…—which comprises, among other things, the cause of the treaty—and as ‘the historical background of the treaty.…’ However, as will be seen, the interpreter could, as part of his or her assessment of the relative relevance of a circumstance, take into account the length of time between a circumstance and the conclusion of a treaty. See infra. 114 eg in the case of the Aegean Sea Continental Shelf (Greece v Turkey), ICJ Reports 1978, p 41, paras 100 ff, where the Court considered the circumstances surrounding the conclusion of the ‘Brussels communiqué’ to conclude that Greece and Turkey had an obligation to negotiate. The Court took a detailed look at the circumstances, examining various events, notably an exchange of notes between the two governments, a statement made in the Turkish National Assembly and many notes verbale. See also Arbitral Award of July 31 1989 (GuineaBissau v Senegal), supra n 23, p 71, para. 53. 115 In the case Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Jurisdiction and Admissibility, supra n 23, p 23, para. 42, the Court noted that the main concern of the parties at the time when the minutes were signed was the Gulf War and not the dispute between Qatar and Bahrain. Therefore, the circumstances existing at the time did not help the Court to confirm the meaning of some provisions. On the contrary, the Court stated that the Gulf War ‘could explain why the Parties could not reach agreement on a more explicit text’. See also Sovereignty over Pulau Litigan and Pulau Sipadan (Indonesia/Malaysia), supra n 23, para. 56 where the Court examined the nature of the territorial tensions that existed at the time of the conclusion of the treaty. 116 See eg the decision of the Appellate Body of the Dispute Settlement Mechanism of the WTO in European Communities—Customs Classification of Certain Computer Equipment, 1998, WT/DS/68/AB/R, para. 92, where the Body found that the Panel did not sufficiently take into account the classification practice of the European Communities during the WTO negotiations. 117 In this regard, Bartoš is of the view that: ‘In seeking the meaning of terms, the time at which the text has been drawn up and the atmosphere in which the treaty had been concluded must always be taken into account’, YILC, 1966, vol. I, 872nd meeting, p 202, para. 53. 118 European Communities—Custom Classification of Frozen Boneless Chicken Cuts, 12 September 2005, WT/DS286/AB/R, para. 289. 119 Ibid, para. 291. 120 On this issue, see the Appellate Body, ibid, para. 293, which, borrowing in part from a statement by the Panel in the same case, wrote as follows: ‘the further back in time that an event, act or other instrument took place, was enacted or was adopted relative to the conclusion of a treaty’, the less relevant it will be for interpreting the treaty in question. See also the decision of the Appellate Body in United States—Final Anti-Dumping Measures on Stainless Steel from Mexico, 30 April 2008, WT/DS286/AB/R, para. 54, where it rejected the relevance of a 1960 Group of Experts Report submitted as ‘circumstances’, noting, among other things, that the treaty to be interpreted, the Anti-Dumping Agreement, had entered into force long after the report. 121 The Appellate Body writes in European Communities—Custom Classification of Frozen Boneless Chicken Cuts, ibid, p 117, para. 297: As far as an act or instrument originating from an individual party may be considered to be a circumstance under Article 32 for ascertaining the parties' intentions, we consider that the fact that this act or instrument was officially published, and has been publicly available so that any interested party could have acquired knowledge of it, appears to be enough. Of course, proof of actual knowledge will increase the degree of relevance of a circumstance for interpretation. 122 Ibid, p 114, para. 291. This factor seems to suggest that it will sometimes be difficult to determine if documents or instruments are ‘circumstances’ or ‘preparatory work’. In the case United States—Measures Affecting the Cross Border Supply of Gambling and Betting Services, supra n 51, para. 196, the Appellate Body used as supplementary means ‘guidelines’ and a classification of products without specifying whether they were preparatory work or circumstances. 123 Ibid, p 113, para. 289. In this case the Appellate Body included among the relevant circumstances the classification by custom authorities, the custom legislation of the European Communities, as well as the decisions of the European Court of Justice on the topic. 124 P. M. Dupuy, supra n 2, p 300: ‘Ils sont au nombre de deux’.

125 In French: ‘notamment’. 126 See the comment by the representatives of Sierra Leone, Official Records, Report of the Committee of the Whole, 1st session, 32nd meeting, p 174, para. 28 and of Mexico, ibid, 33rd meeting, p 181, para. 39, who stated as follow: ‘Although article 28 did not say so explicitly, it was to be understood that in that case the interpreter could also make use of the rules of logic and dialectics, legal maxims and all his legal, historical and sociological knowledge’. See also in the Commission the comment by Reuter, YILC, 1964, vol. I, 872nd meeting, p 223, para. 48. See also the decision of the panel in Chile—Price Band System and Safeguard Measures Relating to Certain Agricultural Products, supra n 51, p 143 and, more recently in the decision of the Appellate Body in European Communities—Custom Classification of Frozen Boneless Chicken Cuts, supra n 121, para. 289. 127 Report of the ILC to the General Assembly, YILC, 1964, vol. II, p 204, para. 13. See also the Sixth Report of Waldock, YILC, 1966, vol. II, p 98, para. 18. 128 M. K. Yasseen, supra n 1, pp 52 and 80. 129 See also European Communities—Custom Classification of Frozen Boneless Chicken Cuts, supra n 121, para. 305: In our view, it is possible that documents published, events occurring, or practice followed subsequent to the conclusion of the treaty may give an indication of what were, and what were not, the ‘common intentions of the parties’ at the time of the conclusion. The relevance of such documents, events or practice would have to be determined on a case-by-case basis. 130 Article 31(3)(b) mentions ‘any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation’. A previous version referred to ‘all’ the parties. However, the Commission, in its report to the General Assembly, explained that: By omitting the word ‘all’ the Commission did not intend to change the rule.…It omitted the word ‘all’ merely to avoid any possible misconception that every party must individually have engaged in the practice where it suffices that it should have accepted the practice. (Report of the ILC to the General Assembly, YILC, 1966, vol. II, pp 221–2, para. 15) 131 See Waldock, who specifies that if the subsequent practice ‘did not cover a broad group of parties it would, of course, only serve as an indication, and more evidence would be required in support of the alleged interpretation’ , YILC, 1964, vol. I, 766th meeting, p 282, para. 3. 132 Oil Platforms (Islamic Republic of Iran v United States of America), supra n 23, p 815, para. 30. 133 See Ago, YILC, 1964, vol. I, 766th meeting, p 282, para. 5. See also A. Aust, Modern Treaty Law and Practice (Cambridge: Cambridge University Press, 2000), p 195: ‘if a clear difference of opinion between the parties exists, the practice may not be relied upon as a supplementary means of interpretation’. 134 A. Aust, ibid, p 200: ‘If a party has made plain its understanding of the meaning of a provision, and it later applies it in that sense without objection, other parties may not be able to insist on a different interpretation. Article 31 §3, b) might also apply’. However, this question is not entirely free of controversy. Some members of the Commission voiced their concern on this issue. For instance, Tunkin was opposed to a draft of Art. 32 in which an individual practice could be considered a supplementary means as he feared that such wording could advantage a strong State against a weaker one which would hesitate to express itself: YILC, 1964, vol. I, 769th meeting, p 314, para. 73. 135 See Linderfalk, supra n 49, p 249: ‘it is a fact that ratification work often contains information, based on which the applier more fully than otherwise will be able to form an opinion on how the ratified treaty was perceived when adopted’. 136 See eg Oil Platforms (Islamic Republic of Iran v United States of America), supra n 23, pp 814 and 819, paras 29 and 47; Border and Transborder Armed Actions (Nicaragua v Honduras), supra n 32, para. 280. 137 See A. Aust, supra n 9, p 248. See also Linderfalk, supra n 49, p 255, who notes that ‘Other times the instrument may be considered a part of “the circumstances of [the interpreted treaty's] conclusion.” This is the case, for example, when the interpreted treaty was drafted or designed based on another treaty already in existence’. However, in the Advisory Opinion Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, ICJ Reports 1980, p 184, Judge Sette-Camara, in his Individual Opinion, referred to agreements previously concluded to confirm his interpretation as preparatory works: The ‘travaux préparatoires’ relating to the wording of Section 37 confirm such an interpretation. The formula of Section 37 is a standard text, which appears in a series of similar treaties, going back to an agreement between the Swiss Federal Council and the International Labour Organisation concerning the latter's legal status in Switzerland adopted and signed on 11 March 1946. Others may have concluded that it is a relevant ‘circumstance’. 138 For a detailed analysis of these rules see Linderfalk, supra n 49, ch. 9. See also Aust, supra n 9, pp 248–9. * Professor, Faculty of Law, University of Ottawa, Canada.

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Volume I, Part III Observance, Application and Interpretation of Treaties, s.3 Interpretation of Treaties, Art.32 1986 Vienna Convention Yves le Bouthillier From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Rules of treaty interpretation — Treaties, conclusion

(p. 864) 1986 Vienna Convention Article 32 Supplementary means of interpretation Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable. 1. The wording of Article 32 of the 1986 Convention is identical to that of the 1969 Convention. The Commission did not propose modifications to it and there was no debate on this issue at the Vienna Conference. 2. The drafters of the Convention wanted to extend to agreements of international organizations as many provisions of the 1969 Convention as possible.1 With this objective in mind, the Special Rapporteur, Paul Reuter, identified at the outset the provisions of this Convention that he thought could be integrated without change to the project of Articles.2 The three Articles on the rules of interpretation were among those since, essentially, the rules formulated in these Articles are applicable independently of who are the parties to the agreement. He noted that: Never, to the knowledge of the Special Rapporteur, has it been suggested that the interpretation of treaties to which one of more international organizations are parties presents special features.3 Moreover, as for the form, he observed that the provisions on interpretation of the 1969 Convention did not mention the word ‘State’. He concluded that these provisions could be retained as is in the project of Articles for the 1986 Convention.4

References 3. During the brief debate within the Commission on Article 32, it was mentioned that the participation of international organizations in the development and conclusion (p. 865) of a treaty could generate supplementary means that would reflect the particular nature of an organization, for instance a decision it would have adopted.5 However, the suggestion to mention expressly these means in Article 32 was rejected as it was deemed important to opt for an identical approach to the 1969 Convention which does not list any specific supplementary means other than preparatory work and the circumstances surrounding the conclusion of a treaty.6 4. However, the question is still worth considering: can documents other than those created during the negotiations (eg resolutions, decisions, or other documents of international organizations)7 be taken into account as preparatory work or as other supplementary means? Some commissioners argued that when a document had been produced by only one party, it could not be considered as preparatory work.8 However, would it not be appropriate, in a case where documents have been mentioned directly in a negotiation in which an international organization took part, to consider these as part of the preparatory work? The Commission seems to envisage this possibility in its comment on Article 32, explaining that: The international engagement of an international organization generally entails intervention by a number of bodies and work and discussion in public of a kind likely to confer on the preparatory work various features whose importance should not be underestimated.9 *

YVES LE BOUTHILLIER

References

Footnotes: 1 Second Report on the question of Treaties concluded between States and International Organizations or between two or more International Organizations, YILC, 1973, vol. II, p 60, para. 9. 2 Ibid, p 61, para. 12. 3 Fourth Report on the question of Treaties concluded between States and International Organizations or between two or more International Organizations, YILC, 1975, vol. II, p 43. Reuter mentions that some have, however, argued, based on some decisions of international tribunals (see eg the Advisory Opinion Reparation for Injuries Suffered in the Service of the United Nations, ICJ Reports 1949), that the interpretation of the founding Charter of international organizations had, contrary to the agreements to which these are parties, given a greater importance to a teleological approach to interpretation. See on this the commentary on Art. 31 in this work. Reuter adds however that the rules of interpretation in the 1969 Convention would have been found sufficient even for this type of agreement. He notes that the possible existence of special rules of interpretation for these charters of international

organizations was not mentioned by the ILC or at the Vienna Conference during the development of the 1969 Convention. In fact this question was raised within the Commission, but was not the object of a sustained debate. See, among others, de Luna, YILC, 1964, vol. I, 765th meeting, p 276, para. 18 and p 285, para. 39 and Rosenne, ibid, 765th meeting, p 278, para. 41. 4 Ibid. 5 See Ouchakov, YILC, 1977, vol. I, 1438th meeting, p 123, para. 30 and Calle y Calle, ibid, para. 31. 6 See Riphagen, ibid, para. 33. 7 See eg the Advisory Opinion Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, ICJ Reports 1980, p 91, para. 41, where a summary of negotiations between the Swiss government and the ILO considering a headquarters agreement was argued as part of the preparatory work. 8 See Sette Camara, YILC, 1977, vol. I, 1438th meeting, p 123, para. 35. However, as we have seen for the 1969 Convention, to the extent that, on occasion, some international jurisdictions have considered as preparatory work documents prepared by a State for internal purposes, it would not be surprising that, rightly or wrongly, they do the same for an international organization's internal documents. See the commentaries on Arts 73 and 74 of the 1969 Convention in this work. 9 Report of the Commission to the General Assembly, YILC, 1982, vol. II, Part Two, p 41. * Professor, Faculty of Law, University of Ottawa, Canada.

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Volume I, Part III Observance, Application and Interpretation of Treaties, s.3 Interpretation of Treaties, Art.33 1969 Vienna Convention Alain Papaux, Rémi Samson From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Object & purpose (treaty interpretation and) — Customary international law — UN Charter — Vienna Convention on the Law of Treaties

(p. 866) 1969 Vienna Convention Article 33 Interpretation of treaties authenticated in two or more languages 1. When a treaty has been authenticated in two or more languages, the text is equally authoritative in each language, unless the treaty provides or the parties agree that, in case of divergence, a particular text shall prevail. 2. A version of the treaty in a language other than one of those in which the text was authenticated shall be considered an authentic text only if the treaty so provides or the parties so agree. 3. The terms of the treaty are presumed to have the same meaning in each authentic text. 4. Except where a particular text prevails in accordance with paragraph 1, when a comparison of the authentic texts discloses a difference of meaning which the application of articles 31 and 32 does not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted A. General characteristics 868 Interpretation and the genius of languages 868 Object 869 Purpose 870 Multilingual treaties and general principles of interpretation 871 Customary status 872 B. Scope of Article 873 A ‘textual’ ambiguity 873 The rule of formal preference as prescribed by the treaty or agreed upon by the parties (Article 33, paragraphs 1 and 2) 874 The notion of ‘authoritative text’ 875 The rule of formal preference simpliciter 877 Material rule of reconciliation of meanings or of reconciliation of texts on the basis of the object and purpose of the treaty (Article 33, paragraphs 3 and 4) 879

Bibliography Aceves, W. J., ‘Ambiguities in Plurilingual Treaties: A Case Study of Article 22 of the 1982 Law of the Sea Convention’, Ocean Development and International Law Journal, 1966, vol. 27, pp 187 ff Buffard, I., ‘The “Object and Purpose” of a Treaty: An Enigma?’, Austrian Review of Int'l and European L, 1998, vol. 3, pp 311 ff Crnic-Grotic, V., ‘Object and purpose of treaties in the Vienna Convention on the law of treaties’, Asian Yearbook of Int'l L, 1997, vol. 7, pp 141 ff Dickschat, S. A., ‘Problèmes d'interprétation des traités européens résultant de leur plurilinguisme’, RBDI, 1968, pp 40 ff Dölle, H., ‘Zur Problematik mehrsprachiger Gesetzes-und Vertragstexte’, Rabels Zeitschrift, 1961, pp 4 ff Germer, P., ‘Interpretation of Plurilingual Treaties: A Study of Article 33 of the Vienna Convention on the Law of Treaties’, Harvard Int'l LJ, 1970, vol. 11, pp 400 ff (p. 867) Hardy, J., ‘L'interprétation des traités internationaux rédigés dans plusieurs langues’, thesis Paris, 1960 —— ‘The Interpretation of Plurilingual Treaties by International Courts and Tribunals’, BYIL, 1961, vol. 37, p 72 Hilf, M., Die Auslegung mehrsprachiger Verträge (Berlin: 1973) Knops, E., ‘De l'interprétation terminologique des conventions internationales multilingues’, JT, 1975, pp 421 ff Kuner, C. B., ‘The Interpretation of Multilingual Treaties: Comparison of Texts Versus the Presumption of Similar Meaning’, ICLQ, 1991, vol. 40, pp 953 ff Labuschagne, J. M. T., ‘Interpretation of multilingual treaties’, South African Yearbook of Int'l L, 1999, vol. 24, p 323 Linderfalk, U., On the Interpretation of Treaties. The Modern International Law as Expressed in the 1969 Vienna Convention on the Law of Treaties (Dordrecht: Springer, 2007) Lipstein, K., ‘Some practical comparative law: the interpretation of multilingual treaties with special regard to the EEC treaties’, Tulane L Rev, 1973–74, vol. 48, p 907 Makarov, A. N., ‘Zur Auslegung mehrsprachiger Staatsverträge’, Festschrift Guggenheim (Geneva: Faculté de droit de l'Université de Genève, 1968), pp 403 ff Menezes de Carvalho, E., ‘The Decisional Juridicial discourse of the Appellate Body of the WTO: Among Treaties and Dictionaries as Referents’, International Journal for the Semiotics of Law, 2007, vol. 20, pp 327 ff Moessner, J. M., ‘Die Auslegung mehrsprachiger Staatsverträge’, Archiv des

Völkerrechts, 1971–72, vol. 15, pp 273 ff Ostrower, A., Language, law and diplomacy—a study of linguistic diversity in official international relations and international law (1965), 2 vols Pescatore, P., ‘Interprétation des lois et conventions plurilingues dans la Communauté européenne’, Cahiers de droit, 1984, vol. 25, p 989 Reuter, P., ‘Quelques réflexions sur le vocabulaire du droit international’ in Le développement de l'ordre juridique international. Ecrits de droit international (Paris: Economica, 1995), pp 8–9 Shelton, D., ‘Reconcilable differences? The interpretation of multilingual treaties’, Hastings Int'l and Comp L Rev, 1996–97, vol. 20, p 611 Sørensen, M. (ed.), Manual of Public International Law (1968), ch. 4, ss 4, 4.37 Tabory, M., Multilingualism in international law and institutions (Alphen aan den Rijn and Rockeville, MD: Sijthoff & Noordhoff, 1980) Tuzmukhamedov, B. R., Polish Yearbook of Int'l Law, 1994, vol. 21, p 213 Uruena, R., ‘El problema de la interpretacion de tratados redactados en diversos idiomas, segun el derecho internacional’, Language Problems and Language Planning, 1990, vol. 14, pp 209 ff Yaseen, M. K., ‘L'interprétation des traités d'après la Convention de Vienne sur le droit des traités’, RCADI, 1976, vol. 151, pp 1 ff 1. European countries that saw the birth of international law could conduct their affairs using Latin as a common language. Gradually overwhelmed by domestic idioms, however, the language of Roman law gave way to French, language of the court of the Sun King and, increasingly, of diplomatic relations. Still, not until the early twentieth century did multilateral instruments use more than one language. With the rise of English on the international stage, the number of multilingual treaties increased, along with a variety of diverging interpretations which international arbitrators and courts worked to resolve on a case-by-case basis, one case at a time. Faced with an incredibly diverse jurisprudence, the ILC attempted, with considerable courage and some success, to construct and develop, in addition to the general directives of Articles 31 and 32, some rules for the interpretation of treaties authenticated in two or more languages, which now constitute Section 3 of the Vienna Convention.

(p. 868) A. General characteristics Interpretation and the genius of languages 2. While interpretation problems appear technical at first glance (albeit important), they strike at the heart of a culture and of its understanding of the world. One cannot grasp the scheme of Article 33 without a clear awareness of the fact that any interpreter is culturally inscribed and that this represents a relativist threat to the unity, uniqueness, and univocality of international law. In his Cours Général of 1961 in The Hague, in a subdivision entitled La société internationale et l'expression du droit, P. Reuter synthesizes clearly how language influences what is at stake in international engagements: Law rests on a certain use of language, which itself represents an accumulation of collective experiences and traditions corresponding to a concrete mentality. When a human community has its own language, the expression of legal rules in this language takes place naturally. But international society is a superimposed society: it is separated from the human milieu by a shield of national societies; the international Community does not call any citizen or any language its own. The rules of international law will be expressed, for lack of a better medium, in national languages, which results in: slow forming of the law, ambiguous wording, and poor and empirical instantiation.1 3. Article 33 was developed precisely to guard against the risk of ambiguity or equivocality inherent in multilingual treaties. The difference in linguistic genius that is reflected and compounded by legal systems and their distinctive languages indicates that the heart of the problem lies not in a divergence of form or expression, but rather points towards a divergence of substance, or meaning. 4. Indeed, a divergence of formal expression is really only an indication, not the proof, of a difference of meaning: It often happened that there was no legal concept in one system which corresponded to a legal concept in the other. An equivalent term was employed, but it rarely expressed the legal concept in question. The term ‘trustee’ as used in financial agreements was a case in point.2 For example, the Charter of the United Nations uses both ‘trusteeship’ and ‘tutelle’ to refer to a particular administration regime for non-autonomous territories (Chapter XII), which constitutes a divergence of expression with no consequences regarding the meaning: this regime is unique and the fact that it has been referred to by two terms that are not a translation of one another is abundant proof that neither the term ‘trusteeship’ nor the term ‘tutelle’ refers to the legal institutions they designate in English and French law respectively.3 5. Thus can be seen the problem inherent to every domestic legal idiom; that of ‘double lexicon’, ie the ‘splitting of domestic terms into a dual set of legal meanings, one domestic the other international’.4 Article 33, as a matter of logic, does not address this (p. 869) duality.

While it sheds some light on one of the sources of divergence of meaning in international law, it offers no principle to solve the divergence itself. 6. Article 33 provides two modes for solving the divergences caused by the difference in the genius of languages. First, one can render the divergence of meaning virtually irrelevant by preferring one or a few texts over all others, thus creating a ‘monopoly’ that will limit the possibilities for conflicts of interpretation. Second, one can engage in a genuine exercise of interpretation and deal with the divergence directly. Here, however, there are no prescribed methods except for a regard to the ‘object and purpose of the treaty’, where the underlying goal is to reconcile the texts, not simply to discover their meaning. This perspective is similar yet not identical to that prescribed by Articles 31 and 32, as we shall see.

Object 7. The First Report of Special Rapporteur Sir Humphrey Waldock (ie the third report on the law of treaties) was devoted to questions of application, interpretation, and effects of treaties. In it, Sir Humphrey Waldock distinguished between treaties in one language and multilingual treaties. The latter gave rise to two specific Articles in the Report's third section— Interpretation of treaties: Article 74 ‘Treaties drawn up in two or more languages’ and Article 75 ‘Interpretation of treaties having two or more texts or versions’.5 8. In adopting two series of Articles, the first on the interpretation of treaties in general, the second on treaties in multiple languages, the ILC noted that: for the purpose of formulating the general rules of interpretation the Commission did not think it necessary to make any other distinction between different categories of treaties other than that between unilingual and plurilingual treaties.6 9. Because it dismisses important classical distinctions such as law-making treaties and other treaties,7 this assertion by the ILC gives special prominence to Articles dealing with the interpretation of multilingual treaties. 10. Pragmatic considerations also reinforce this: The phenomenon of treaties drawn up in two or more languages has become increasingly familiar since 1919 and, with the advent of the United Nations, general multilateral treaties drawn up, or finally expressed, in five different languages have become not uncommon.8 Further accentuating this phenomenon are the universalization of international law and the intensification of regional inter-national law (eg the creation of ‘common markets’ or of partially supra-national entities such as the European Union).9 11. A major theoretical preoccupation is common to all Articles dealing with the interpretation of multilingual treaties. More than being a simple composite of texts in different languages, a treaty must transcend the sum of its parts in the name of unity. This is the fundamental principle from which the scheme of Article 33 unfolds.10 Even the (p. 870) terms of Article 33 convey this unity: paragraph 1 refers to ‘a treaty’; paragraph 2 to ‘a version of the treaty’; paragraph 3 is perfectly explicit by referring to the treaty and ‘each authentic text’; paragraph 4 ‘the object and the purpose of the treaty’. 12. Thus the object of Article 33 seems clear: one treaty with texts in multiple languages which risk introducing divergences of interpretation, to be minimized by the use of a given number of particular rules of interpretation destined to ensure the treaty's unity. 13. Even though the title of Article 33 appears unproblematic, the English version did at one time raise some concerns.11 Its predecessor, Article 29, was entitled ‘Interpretation of treaties in two or more languages’. The issue was whether the expression ‘two or more languages’ applied to the treaties themselves or to their interpretation. The Drafting Committee eliminated the problem by adding the qualifier ‘authenticated’ to the noun ‘treaties’, thus indicating that the fact of linguistic multiplicity—ie ‘two or more languages’ (and any resulting difficulties)—related to the treaty itself, which now enjoys a multiplicity of versions, and not to the interpretations that can be proposed for it. The language in which the interpretation is conducted is therefore of no consequence whatever. French, Russian, and Spanish versions were modified accordingly, and the current title of the Article more accurately circumscribes its object: a treaty authenticated in two or more languages.12 14. Authentication, however, is not its object proper. Problems of interpretation do not arise (or at least seldom do) with respect to authentication. Rather, they are a matter of its consequences in terms of conventional logic: faced with the problem of interpreting a multilingual treaty, how does one identify the authoritative ‘authenticated’ version, and how does one solve the problem of multiple ‘authentic’ versions each equally authoritative yet each giving rise to a different interpretation of the treaty? 15. The equal authority recognized to each version of an authenticated treaty represents a clear threat to the contractual fabric since it compromises the cardinal principle of the unity of the treaty and, consequently, the community of legal regime which the treaty aimed to create.13 Left unchecked, the equal legitimacy recognized to the texts renders insurmountable the problem of divergence flowing from an authenticated treaty's multiple languages. If no text can claim victory over another, each can claim to represent the true common intentions of the parties.

Purpose 16. From the points made supra, one can infer the following dual purpose for Article 33:

(1) to circumscribe the different instances of ‘authentic texts’ (para. 1, 1st sentence; para. 2) available for a treaty's interpretation; (2) to define the principles to be used in the case of divergences of meaning (para. 1, last sentence; para. 4) between each equally authoritative text (para. 1, 2nd sentence; para. 3). 14 17. These purposes were reiterated many times during the ILC's project, to the extent that two distinct Articles were envisaged. That they were ultimately conflated into a (p. 871) single Article was first a result of their internal logic.15 Secondly, the Commission found that the presentation of the rules in a single Article would help to avoid any appearance of overemphasizing the significance of the multilingual character of a treaty as an element in treaty interpretation.16 18. Thus Special Rapporteur Sir Humphrey Waldock intended to stress that Article 33 was to be included in the general principles of interpretation ultimately enshrined in, notably, Articles 31 and 32. On the whole then, Article 33 is to be understood as a particular application of those principles as it brings into play a more specific notion of comparison between texts.17

Multilingual treaties and general principles of interpretation 19. By referring to Articles 31 and 32 along with the object and purpose of the treaty, paragraph 4 of Article 33 confirms that the interpretation of treaties authenticated in two or more languages is nested within general principles of interpretation.18 20. Criticism and scepticism with respect to Articles 31 and 32 are thus also applicable to Article 33.19 Sir Humphrey Waldock accurately described their spirit, which incidentally surrounds the problem of multilingual treaties: ‘recourse to many of these principles is discretionary rather than obligatory, and the interpretation of documents is to some extent an art, not an exact science’.20 But also: ‘[s]ome element of subjectivity is inherent in the process of interpretation’.21 21. Sir Humphrey Waldock characterized the issue of treaties in multiple languages as a ‘special problem’ in reference to this particular context.22 The artistic nature of interpretation, or ars interpretandi, is more readily apparent when faced with the issue of multilingualism, since every language has its own ‘genius’, its own particular way of capturing reality: ‘[e]ach language has its own genius, and it is not always possible to express the same idea in identical phraseology or syntax in different languages’.23 22. The awareness that language (here legal language) translates or realizes, in a fundamental sense, different legal systems and conceptions of law increases the risk of divergence with respect to a treaty. In his Sixth Report, Sir Humprey Waldock described the then Yugoslav government's concerns in this respect: the Yugoslav Government considers it necessary to envisage the case of an international instrument produced by several States having different legal systems and concepts in which the interpretation of the agreement must conform to the legal concepts of all the contracting Parties.24 (p. 872) 23. The inevitable reality of textual diversity resulting from linguistic diversity, and more fundamentally of the diversity of legal conceptions within nations, becomes particularly complex when confronted by the principle of the primacy of the text. 24. According to this principle, which most authors along with the Institute of International Law accept,25 the text is the main basis for the interpretation of treaties, since it is considered a proof of the intentions of the parties. In his Third Report, Sir Humphrey Waldock describes the principle as follows: It accepts the view that the text must be presumed to be the authentic expression of the intentions of the Parties; and that, in consequence, the starting point and purpose of interpretation is to elucidate the meaning of the text, not to investigate ab initio the intentions of the Parties.26 The ILC was of the same mind in its Report to the General Assembly.27 25. Therefore, theoretically at least, a diversity of texts should have a corresponding diversity of intentions of the parties, which undermines the unity of the treaty and weakens the authority that flows from it. 26. The role of Article 33 is precisely to rehabilitate or maintain the unity of meaning of a multilingual treaty. This is achieved either by favouring one version over another (pursuant to the treaty itself or according to the will of the parties), or by reconciling the texts. This last method entails (1) an analysis of the texts, (2) with regard to the object and purpose of the treaty. Thus it confirms two cardinal aspects of the presumption that the text represents the authentic expression of the parties' intentions. 27. One final element confirms that the scheme of Article 33 fits that of more general principles of interpretation. By requiring the interpreter (1) to start from the texts, (2) to better reconcile them, (3) with regard to the object and purpose of the treaty, this scheme seems to refer to and accept the three most classic methods of interpretation, ie the textual, subjective, and teleological methods of interpretation.28 There is no doubt, then, that Article 33 represents a particular application of general principles of interpretation. 28. Its specificity rests on the requirement that texts be compared. This is why a reference to the object and purpose of the treaty (para. 4) was necessary. Object and purpose in the perspective of Article 33 are considered not as principles for the elaboration of one meaning,

but as a principle of reconciliation of different, ‘concurrent’ meanings obtained by application of the directions or methods already prescribed by Articles 31 and 32 and that also refer to object and purpose, albeit not in the context of a scheme geared towards textual harmonization. It is therefore important not to mistake one use—or context—of ‘object and purpose of a treaty’ (in Arts 31 and 32) with the other (in Art. 33).29

Customary status 29. Since Article 33 appears to be a particular application of Articles 31 and 32, the uncertainty surrounding the status of customary law with respect to the more general (p. 873) principles of interpretation carry over to the more specific context. This is especially true of the fine (in practice often irresolvable) distinction between custom and practice.30 30. The multiplicity of cases submitted to international tribunals show that the case law is not, quantitatively speaking, simply voluminous but also extremely heterogeneous from a qualitative point of view. 31. Formidably scattered, the judicial decisions lead neither to serene analysis nor to firm judgment, at least with respect to opinio juris, about the possible customary nature of the rules found at Article 33. 32. One should not, however, judge the case law harshly. On the contrary, it evidences the great pragmatism of international judicial decision-makers,31 and explained with finesse by J.M. Sorel: ‘the major stakes reside, not in the interpretation stricto sensu, but in what the interpretation conditions: the application of law’.32 33. We will analyse the typical cases when examining the particular rules of Article 33. 34. From a general point of view, it is noteworthy that these rules did not give rise to acrimonious debates, which only really concerned their formulation. This suggests that the admittedly general principles, as synthesized, were already subject to a large consensus reflecting for the most part judicial and arbitral practice concerning multilingual treaties. 35. This is particularly the case for the core of Article 33: the rule prescribing the reconciliation of divergent texts. Both the authors of the ILC project and the negotiators of the Convention surely had in mind the solution developed by the Permanent Court of International Justice (PCIJ) in the Mavrommatis Palestine Concessions case, wherein: The Court is of opinion that, where two versions possessing equal authority exist one of which appears to have a wider bearing than the other, it is bound to adopt the more limited interpretation which can be made to harmonise with both versions and which, as far as it goes, is doubtless in accordance with the common intentions of the Parties. In the present case this conclusion is indicated with especial force because the question concerns an instrument laying down the obligations of Great Britain in her capacity as Mandatory for Palestine and because the original draft of this instrument was probably made in English.33 36. The idea of reconciling texts ‘as far as possible’ was explicitly confirmed by the European Court of Human Rights in the Wemhoff case (27 June 1968), where it was linked to the idea of the object and purpose of the treaty.34

References

B. Scope of Article A ‘textual’ ambiguity 37. The reader of Article 33 is immediately confronted with uncertainty. The notion of text seems to cover two ‘incompatible’ realities. Under a formal conception, the text is (p. 874) understood as an expression, or signifier. Under a materialist (substantive) conception, it is viewed as meaning. 38. This tension is released, somewhat, by the underlying scheme of Article 33, the centre of gravity of which is the conflict of meanings between authenticated texts and to which paragraph 4 seeks to respond. 39. To understand the scheme of the provision properly, three elements must be emphasized: the general framework requiring the unity of the treaty in the face of divergences in the genius of languages; principles of conflict avoidance by application of a rule of preference (Art. 33, paras 1 and 2); and, by default, a principle of conflict resolution by reconciliation of authentic texts (Art. 33, paras 3 and 4). 40. While the unity of the treaty requires a solution to the problem of divergences in the genius of languages, this basic premise does not entail that any (formal) difference in the text will amount to a divergence of meaning. In other words, all divergences are not all relevant. As paragraph 4 of Article 33 implies, only a ‘difference of meaning’ arising from a comparison of authentic texts (in this specific interpretive context as compared to that of Arts 31 and 32) will be relevant. 41. To ensure that the texts (ie objects) compared are homogenous, which is indispensable since the common intentions of the parties and the unity of the treaty are at stake, it was necessary to devise an indisputable method of identification. In principle, only the texts of the authenticated treaty are compared. The process of authentication determines which texts are authentic and which one can then be preferred, pursuant to the rule of preference, for the

sake of preserving the unity of the treaty. 42. So much is clear. Yet which text is it really? Authentication, by definition, deals with texts viewed from a formal perspective. While the core of Article 33 (ie para. 4) does deal with the comparison of authentic texts, this comparison is relevant only if it ‘discloses a difference of meaning’, hence an appeal to a substantive conception of the text. 43. Thus are revealed the intimate workings of Article 33: a rule of formal preference (dealing with texts understood formally) and, in the absence of preference, in the case of a difference in meaning, a substantive rule of reconciliation of meaning. 44. In the next section, we analyse, first, the rule of formal preference, and in particular its two aspects: the notion of ‘authoritative text’ and the rule itself; and secondly, the substantive rule of reconciliation of meanings.

The rule of formal preference as prescribed by the treaty or agreed upon by the parties (Article 33, paragraphs 1 and 2) 45. With respect to multilingual treaties, paragraphs 1 and 2 adopt a formal point of view. They do not take into consideration issues of meaning but prescribe ‘exclusively’ the rule through which the authentic texts (ie those relevant for the interpretation) are determined. These genuine authentic texts are either identified by and through the authentication process (para. 1) or given the rank of authentic text by a provision of the treaty or by an agreement of the parties (para. 2). 46. In conformity with the logic of synallagmatic conventions, paragraph 1 prescribes the immediate consequence of a multiplicity of authentic texts as determined by paragraphs 1 and 2: each of those texts is equally relevant for the purposes of interpretation. 47. The consequences of this equality become problematic when the relevant texts diverge. Anticipating this risk, paragraph 1 prescribes a rule of preference, ie an exception (p. 875) (‘unless’) to the principle of equality: a provision of the treaty or an agreement by the parties can give precedence to one of the texts.

The notion of ‘authoritative text’ 48. The elaboration of a draft convention is often conducted in many languages which may or may not cover the same parts of the proposal. 49. Yet using a high number of languages increases the risk of divergence in the versions of the multilingual treaty, with the corresponding adverse effect on the treaty's unity. 50. To prevent this, it was deemed important to limit the number of texts that could be used predominantly—or even exclusively—to establish the common intentions of the parties.35 Thus, only the text(s) in language(s) in which the treaty has been authenticated will be considered authoritative.36 This principle is enshrined in Article 33, paragraph 1, 1st sentence. The Charter of the United Nations, for example, provides in Article 111 that only ‘…the Chinese, French, Russian, English, and Spanish texts are equally authentic…’.37

References 51. In theory, the diversity inherent in the presence of many authenticated texts in different languages does not affect the unity of the treaty. This is why even though delegations were free to abstain from signing one of the authentic texts of the Charter (provided they agreed to sign it later at the official ceremony), none exercised this right. All the parties signed the Charter as constituting a whole that transcended the multiplicity of languages.38 52. Paragraph 2 completes the list of texts to be considered in priority—and even exclusively —when establishing the true intentions of the parties to a multilingual treaty. The restrictive phrase ‘shall be considered an authentic text only if’ indicates an intent to limit the number of texts that are authoritative for the purposes of interpretation. 53. In light of this principle of formal hierarchy, therefore, a number of versions in which the treaty was elaborated upon and/or written cannot be used, at least as the main source, to interpret a treaty authenticated in two or more languages. 54. Thus are hierarchically inferior, with respect to the actual text, the versions in an official language or in a working language, along with those obtained as a result of translation, official or not. 55. The ILC distinguished clearly the text from its versions: …there were versions known as ‘official versions’ which were not authoritative, and as the International Law Commission had established a difference between authentication and adoption and had made authentication a separate process in the conclusion of treaties, the distinction between a ‘text’ and a ‘version’ must be maintained, the ‘text’ being a document which had been authenticated.39 (p. 876) 56. One must distinguish, further, between working language and official language. The latter is defined by the ‘Basdevant Dictionnary’40 as a ‘language whose use is prescribed in the deliberations, minutes and documents of an international conference or body’. From an operational standpoint, it is also necessary to restrict the number of working languages, ie those languages used during discussions and to record minutes and those for which services of simultaneous translation will be provided. 57. Hence working languages are fewer than official languages. The San Francisco Conference, for example, prescribed English, Chinese, Spanish, French, and Russian as official

languages, but chose to work in English and French only. This difference had a pragmatic consequence. All documents and all interventions made in a working language were automatically translated into the other working language. Also, any document or intervention made in an official language that was not a working language was systematically translated into both working languages. Hence, it was decided that only certain classes of documents would be translated into official languages other than French and English, and only upon request by one of the parties. It is noteworthy that every organ of the UN, either principal or subsidiary, has adopted detailed internal regulations and particular practices with respect to the distinction between working and official languages.41 58. Thus official texts are not, in and of themselves, authentic, as the peace treaties concluded after the Second World War demonstrate. Such is the case, for example, with the Italian text of the Peace Treaty with Italy. Article 90 prescribes that only the French, English, and Russian texts are authentic. An analogous situation is found in the Peace Treaties with Bulgaria (Art. 38), Hungary (Art. 42), Romania (Art. 40), and Finland (Art. 36). While the practice at the UN is favourable towards official texts, it is far from uniform. While no clause of the agreements approved by the General Assembly provides that the texts in the six official languages are authentic texts, the General Secretary usually considers them as such. Yet treaties as important as the Convention on the Privileges and Immunities of the United Nations (1946), for example, do not benefit from the rule. Neither any text nor any version is considered authentic. Any divergence in interpretation must be settled through other means.42

References 59. It is important not to confuse, then, a treaty concluded in the working language of body or conference and the treaty authenticated in many languages and for which each version is considered authoritative. This distinction, relevant for the preparation of the different versions of multilingual treaties by the UN Secretariat, is emphasized in the Summary of the Practice of the Secretary-General as Depositary of Multilateral Agreements.43 (p. 877) 60. This myriad of available languages raises a delicate question about the use of the various ‘versions’ (ie official texts or translations or other versions in a working language) for the purposes of interpretation within the framework of Articles 31 and 32. The task is made particularly daunting since ‘…the Secretary-General is sometimes requested to prepare “authoritative” translations which are added to the “authentic” texts in the certified copies’.44 61. Because only a certain number of languages are considered official and are used as working languages, and in light of a limited number of authentic texts, it is necessary to produce official translations of draft conventions and/or of the actual treaties. These translations are prepared by the parties, a government, or an organ of an international body. For example, the Swiss government explains that: The Rome Statute, of which the English, Arabic, Chinese, Spanish, French and Russian texts are equally authoritative, is deposited with the UN Secretary-General (art.128). For Switzerland, the French version is therefore an original. The German translation was made during a translation Conference between Germany and Austria.45 Also, the four Geneva Conventions (1949) on international humanitarian law, while providing that the English and French texts are equally authoritative, also instruct the Swiss Conseil fédéral to provide official translations in Russian and Spanish. Finally, the European Convention on Human Rights, in its last paragraph, provides that only the English and French versions are authoritative, even though many translations were made for the use of the various domestic legal systems involved.

References 62. It is noteworthy that the status of authoritative text is not necessarily given to one single text. In practice, one particular text is considered authoritative as between certain parties whereas another in a different language is authoritative as between others. Such is the case, for example, with the 1918 Peace Treaty of Brest-Litovsk (Art. 10).46

References

The rule of formal preference simpliciter 63. Article 33, in the last part of the first paragraph, clearly expresses the rule of formal preference: a provision of a treaty or an agreement between parties can provide that a particular text will prevail in case of a divergence. This is an exception (‘unless’) to the principle that the versions in which the treaty was authenticated are equally authoritative. 64. This rule of formal preference comes up against two problems. 65. On the one hand, there is a theoretical problem. Does a treaty authenticated in more than one language have one text in many languages, or many texts (the multiplicity being suggested by the use of the expression ‘a particular text’)? Unity as a principle of utmost importance to multilingual treaties requires, ideally, a single text. The expression ‘a particular text’ will refer, then, simply to a version in which the treaty was authenticated and whose language is to be subjected to an application of the rule of formal preference. (p. 878) 66. In practice, such primacy is achieved through various means that illustrate in their own ways the instantiations of the general rule of preference. For example: • A bilateral treaty provides that a text in a language other than those of the parties is

authoritative in cases of divergence. Such is the case with the Treaty of Friendship between Japan and Ethiopia signed in 1957. The French text is designated as authoritative ‘in case of any divergence of interpretation’ (Art. 6) and thus trumps the Japanese and Amharic texts. 47 • A text in a given language is considered authoritative, except for a particular chapter. Such is the case with the Peace Treaty of St-Germain, Neuilly and Trianon. While it is drafted in French, English, and Italian, the treaty provides that the French version is authoritative, except for Parts I and XIII, which contain, respectively, the Covenant and Articles concerning the International Labour Organization. 48 • The authoritative text can even be a simple translation annexed to the treaty. For example, the Border Treaty of 1897 between Great Britain and Ethiopia, with authentic texts in English and Amharic, provides that the French translation in the Annex is authoritative in case of divergence of interpretation. 49

References 67. On the other hand there is a pragmatic problem. When should the rule of formal preference apply? Should the ‘master’ text be applied automatically as soon as the slightest difference appears in the wording of the texts? Or should recourse first be had to all, or at any rate some, of the normal means of interpretation in an attempt to reconcile the texts before concluding that there is a case of ‘divergence’?50 68. This problem has not been solved by international jurisprudence, chiefly because concrete, contextual considerations are so pervasive. Indeed, even the excessive generality of the exception in paragraph 1 mirrors the need for a pragmatic case-by-case approach. It confirms this provocative claim, by J. Hardy, that ‘the notion of divergence is essentially subjective’.51 69. In fact, it is so subjective that it was possible to make it ‘disappear’. For instance, it was claimed, with respect to the Peace Treaty of St-Germain, Neuilly and Trianon, that the French version, which prevails in case of divergence, could be authoritative all the time and thus become the only relevant version. Indeed, as the argument went, if the French version has the same meaning as the other versions as long as they agree, and if it prevails in a case of divergence, then it would be reasonable—and even practical—to refer to the French from the start. Hardy finds this reasoning specious since it presupposes, wrongly, that the interpretation most compatible with the three versions is necessarily identical to the one that would result from a consideration of the prevailing version. The former is obtained through an ‘inter-determination’ of the three versions each with the others. (p. 879) Some possible meanings in one version are eliminated by reason of their incompatibility with one or the other two versions. Conversely, a judge making an interpretation on the basis of the only prevailing version would be liberated from the constraints represented by this need for compatibility with other non-prevailing versions. Hence we start to understand that the reference to the object and purpose of the treaty in paragraph 4 of Article 33 is not at all redundant with that in Article 31. While Article 31 does refer to the object and the purpose, it does so in an interpretive context that is very different.52 70. This subjectivity of the notion of divergence is manifested in countless ways. A few fragments among a sea of cases can illustrate the extreme variation in nuances. (1) First, since the risks of divergence increases with the number of relevant texts, it is tempting to choose among authentic texts those in a language most familiar to the interpreters. In the 1948 Advisory Opinion on the Conditions of Admission of a State to Membership in the United Nations, a majority of the judges of the ICJ used only English and French to interpret Article 4, paragraph 1 of the Charter. Yet five authentic texts were available (English, French, Russian, Chinese, and Spanish).53 In their Opinion, Judges Basdevant, Winiarski, McNair, and Read, while referring to the same two languages, noted that to their knowledge, their interpretation did not conflict with the versions in the other three languages.54 In his Dissenting Opinion, Judge Krylov, not wanting to select ‘subjectively’ between languages, referred to the five authentic texts.55 (2) Secondly, in Paalen v German Empire, the German-Czech Tribunal Arbitral Mixte found that the word ‘jugement’ in the French version of Article 305 of the Treaty of Versailles should not be given a strictly legal meaning. Its argument was that the English text uses the word ‘decision’.56 Yet, at the end of the English version of Article 305, the word ‘judgment’ is also mentioned.

References 71. Even in the face of such disparity in the case law, the fact remains that Article 33 is linked to general principles of interpretation and, as such, seems to indicate that Articles 31 and 32 should be applied at the initial stage. Indeed, it would be premature to conclude that two given texts are substantially different even before the rules of interpretation which purport to determine the intention of the parties have been applied to those texts. Furthermore, considering that the languages of authentic texts are in principle equal, the application of a rule of formal preference which privileges one language over another should, as far as possible, be delayed. This is compatible with the position of the ILC, which recommends ‘that every effort should be made to find a common meaning for the texts before preferring one to another’.57

Material rule of reconciliation of meanings or of reconciliation of texts on the basis of the object and purpose of the treaty (Article 33, paragraphs 3 and 4) 72. Selecting relevant texts for the purposes of interpretation implies that those texts will in principle be equal, as the latter part of paragraph 1 of Article 33 implies and paragraph 3 (p. 880) confirms. This equality in principle can even result in a presumption that the meanings of the words in the different languages (of authentic texts) are identical. Paragraph 3 reveals what is (logically) implicit in this presumption, ie the cardinal principle of the unity of the treaty. 73. To find a multiplicity of authentic texts of a treaty while claiming its unity is to introduce a specific element to the enterprise of interpreting treaties: a comparison of different relevant versions. 74. Comparison does not, of course, alter the relation of dependence which links Article 33 to general principles of interpretation of treaties. It does, however, colour this relation with the specific requirement of reconciliation, stated at paragraph 4. The ‘object and purpose of the treaty’ must be considered with a view to reconciling texts, not, as in Articles 31 and 32, to simply discovering a text's meaning. 75. Comparison and reconciliation are required by the principle of unity of the treaty, which underpins the first part of paragraph 1 and the presumption, in paragraph 3, that the terms of authentic texts have the same meaning. This principle permeates the spirit of the material rule of reconciliation found at paragraph 4 of Article 33. If no text prevails (either by virtue of the treaty itself or by agreement of the parties (para. 1)) and if (cumulatively) applying the general principles of Articles 31 and 32 does not solve the divergence, the correct interpretation is the one which, in light of the ratio legis (ie the object and purpose of the treaty), ‘best’ harmonizes the conflicting texts, in reality the ‘conflicting interpretations’. 76. This rule, at first glance simple, gives rise to serious problems. 77. First, it must be noted that the difference in meaning at issue must be important, since applying Articles 31 and 32 does not solve the problem. 78. Article 31 prescribes that the treaty should be interpreted in light of its object and purpose. Article 33, paragraph 4, however, sets as a condition for its application the failure to solve the difference of meaning by applying Articles 31 and 32. In such circumstances, it is difficult to understand the scope of the reference to the object and purpose of a treaty for the purposes of reconciliation. 79. Must we conclude that the object and purpose of a treaty indicate different things to the interpreter who seeks to interpret the treaty (Art. 31) and to the interpreter who seeks to remove, through reconciliation, a difference of meaning arising out of a multiplicity of authentic texts (Art. 33)? 80. To the extent that this latter possibility is considered only after Articles 31 and 32 are applied (unsuccessfully), does this not amount to saying that both conflicting interpretations have already benefited from the object and the purpose? How, then, could the object and purpose help the reconciliation enterprise? It is certainly open to think that an interpreter who notices a difference of meaning between authentic texts would apply the general principle in Articles 31 and 32 comprehensively and thus use the object and purpose of the treaty to illuminate the conflicting versions. 81. To understand the reference to the object and the purpose of the treaty in para. 4, therefore, one must view those notions not as univocal, but rather as analogical. They both project a similar (as opposed to identical) light and therefore a different light. Their insight varies according to the cognitive context in which they are considered, ie the interpretation of the treaty (to discover one meaning) or the resolution of a difference between texts of a multilingual treaty.58 Moreover, since the general principles of interpretation are not (p. 881) simply methods to follow slavishly but rather represent guiding principles, and since there is a va-et-vient between the rules of interpretation and the texts to which they apply, one must infer that the object and the purpose of the treaty do not illuminate each version with a perfectly identical, homogenous, light. To reconcile texts, object, and purpose must be considered in their own light, so to speak. Thus, in Young Loan Arbitration (Belgium and Others v Federal Republic of Germany), the arbitral tribunal could state: The repeated reference by Article 33(4) of the VCT to the ‘object and purpose’ of the treaty means in effect nothing else than any person having to interpret a plurilingual international treaty has the opportunity of resolving any divergence in the texts which persists, after the principles of Articles 31 and 32 of the VCT have been applied, by opting, for a final interpretation, for the one or the other text which in his opinion most closely approaches the ‘object and purpose’ of the treaty.59

References 82. An analogical conception of the object and purpose of a treaty, varying according to the cognitive context of the interpreter, accounts for the expression ‘having regard’ in paragraph 4, which marks a certain flexibility in the consideration of both object and purpose. 83. This point of view is confirmed by the fact that the ratio legis, rather than being an objective datum that is imposed from above, is already the result of an interpretation. For example, should giving a treaty some useful effect dictate the meaning of the ratio legis?60 Or should this meaning be ascertained in the light of a ‘rule’ of reconciliation by which, of two versions of differing scope, the most restrictive interpretation should prevail, as occurred in 61

the case of the Mavrommatis Palestine Concessions?61 Privileging a restrictive interpretation appears obvious in the case Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium.62 There the European Court of Human Rights was faced with two diverging versions of Article 14 of the Convention. The French version provided as follows: ‘[l]a jouissance des droits et libertés reconnus dans la présente Convention doit être assurée, sans distinction aucune, fondée notamment sur le sexe …’ (emphasis added). The English version read as follows: ‘[t]he enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex …’ (emphasis added). The French version prohibits all forms of discrimination without making a distinction between those distinctions which are discriminatory and those that are not. In other words, the French version would appear to prohibit any legal distinction, even one which purports to correct real inequalities.63 The Court, in the end, rejected the expansive interpretation of the French version and opted for a more restrictive one.

References (p. 882) 84. The position of the PCIJ in the Mavrommatis case may have been viewed as standing for the proposition that the more restrictive of two possible interpretations should, as a general rule, be preferred. In light of the case law generally, this view appears exaggerated. Indeed, there are instances where the more encompassing interpretation prevailed. The PCIJ's Advisory Opinion on the Competence of the ILO in regard to International Regulation of the Conditions of the Labour of Persons Employed in Agriculture is a case in point. The French government observed that the French text of the Treaty of Versailles did not refer specifically to agriculture, only to ‘industrie’ and ‘industriel ’. The Court noted that the word ‘industrial’ in the English text that had served as a basis to the discussions covered both ‘industrie’ and ‘agriculture’. It decided that the real scope of the treaty was to be found in the English version, and thus gave a broader interpretation to the French expressions ‘industrie’ and ‘industriel’. This was done even in the face of the principle which prescribes a restrictive interpretation of agreements which restrict inherent sovereignty rights.64 Here again, however, one should not confer on this solution the status of a rule of general application. The intention of the parties at the time of signing and/or authentication may be different from the one manifested during the travaux préparatoires.

References 85. In any case, when either a restrictive or expansive interpretation is preferred, there is no authentic reconciliation. One text simply takes precedence over another. In the case of Article 14 of the European Convention on Human Rights, for example, ‘without discrimination on any ground’ trumps ‘sans distinction aucune’.

References 86. Another uncertainty with respect to the rule of reconciliation is even more problematic. The meaning of ‘best’ in paragraph 4 remains undetermined. According to what is one interpretation judged preferable to another? During the first session of the UN Conference on the Law of Treaties, the representative for the United States, Mr Kearney, noted that the last part of the sentence was a simple invitation to reach a kind of compromise, without indicating the basis of that compromise.65 87. Also, ‘in many cases reconciliation was impossible’.66 In the Mavrommatis case, for example, the PCIJ reconciled the English ‘public control’ with the French ‘contrôle public’67 according to its own understanding of the object and purpose of the treaty. 88. The Dissenting Opinion of Judge Schwebel in Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) is a perfect example of an application of the general scheme of Article 33, paragraph 4. The issue was with the words ‘still in force’ and ‘pour une durée qui n'est pas encore expirée’. The latter expression had replaced the original ‘encore en vigueur’: Now it has been shown that the object and purpose of Article 36, paragraph 5, of the Statute was to ‘continue’ or to ‘preserve’ declarations made under the Optional Clause of the Statute of the Permanent Court by which States Party to that Statute were ‘bound’.…That is, the object and purpose are expressed by the narrower interpretation only. Moreover, if one takes the narrower ground which is held by the English text, it is also quite reasonably understood to be held by the French text; that is to say, both texts can be ‘best reconciled’ on this narrower ground. But if one ascribes the broader interpretation to the French text, then one must leave the English text—not to speak of the texts in the three other authentic languages…—out of account. For it is undeniable (p. 883) that the meaning which attaches to the English text, and to the Spanish, Russian and Chinese texts, is that Article 36, paragraph 5, encompasses only declarations which are ‘still’ in force, a term which surely imports that such declarations came into force in the first place. Accordingly, by dint of application of the rules of the law of treaties governing interpretation of different language texts, it is not possible to sustain the contention that Article 36, paragraph 5, was meant to give force to ineffective declarations.68

References 89. In sum, Article 33, paragraph 4 is ‘weak’ only in appearance. Language specialists in

fields such as semantics, hermeneutics, literary criticism, or translation will understand that the ILC's chosen formulation evidences an acute awareness of the genius of languages and of the impossibility for interpreters to make pure (formal) comparisons by slavishly following methods of interpretation to somehow ‘decode’ meaning. This clear-sightedness also translates into a humble intellectual attitude that recognizes the inescapably subjective (but not arbitrary!) influence of the interpreter. Hence the great value attributed to the ‘object and purpose’ of the treaty, where ‘object and purpose’ is understood not as a concept with invariable, univocal meaning, but as an analogical notion ‘more or less the same’ depending on the context in which it is considered. In short, we are dealing not with static ratio legis, ie Reason, but with telos, ie an end for which the interpreter strives, especially when called upon to reconcile diverging texts. 90. Lastly, this commentary should not give the impression that Article 33 has merely a supporting role. Having more than one text does not necessarily complicate the task of interpretation—quite the contrary. It can help disambiguate one version with the help of the ‘clear’ text of another, as some of the examples supra show. J. Hardy illustrates this with the differences between the English and French versions of Article 14 of the Covenant of the League of Nations. The French text provides that ‘Cette Cour connaîtra de tous les différends d'un caractère international que les Parties lui soumettront’. The reference to the Parties is somewhat ambiguous: does it refer to the parties to a dispute or to the parties to the Covenant? The English version sheds light on this issue with its more precise wording: ‘any dispute of an international character which the Parties thereto submit to it’.69

References 91. Again, however, no general principle should be formulated. It is quite possible that an ambiguity is put in a text on purpose,70 or that the distortion is in the more precise version. (p. 884) 92. The interpreter faced with a treaty authenticated in many languages knows that his or her task is very delicate irrespective of the applicable multilingual regime: ‘[because] every speech form and symbolic code is open to contingencies of memory and of new experience, semantic values are necessarily affected by individual and/or historical-cultural factors’.71 * RÉMI SAMSON **

ALAIN PAPAUX

Footnotes: 1 P. Reuter (1961 II), ‘Principes de droit international public’, RCADI, vol. 103, p. 435 (own translation). 2 A/CONF.39/11, 1st session, 1968, p. 189. Also, how does one translate into legal English the French expression ‘droit subjectif ’? And conversely, in French, expressions such as ‘common law’ or ‘tort’? 3 P. Reuter, supra n 1, p. 436 (own translation). 4 P. Reuter, ‘Quelques réflexions sur le vocabulaire du droit international’ in Le développement de l'ordre juridique international. Écrits de droit international (Paris: Economica, 1995), pp 8–9 (own translation). 5 A/CN.4/167 and Add.1–3, YILC, 1964, vol. II, pp 5 ff, in particular the Table of Contents, p 6. 6 YILC, 1964, vol. II, p 201. 7 See eg Ch. Rousseau, Principes généraux du droit international public (Paris: Pédone, 1944), p 677 (own translation). 8 Third Report on the Law of Treaties, A/CN.4/167 and Add.1–3, YILC, 1964, vol. II, p. 62. 9 Anthony Aust stresses that multilingual treaties have now become the rule, Modern Treaty Law and Practice (2nd edn, Cambridge: Cambridge University Press, 2007), p 250. 10 See infra Section B, ‘Scope of Article’. 11 On this point, see A/CONF.39/11/Add.1, 2nd session, 1969, p 57. 12 On the notion of authentication, see the commentary on Art. 10 in this work. 13 See infra Section B, ‘Scope of Article’. 14 Ibid. 15 Ibid. 16 Sixth Report on the Law of Treaties, A/CN.4/186 and Add.1–7, YILC, 1966, vol. II, p 103. 17 See infra Section B, ‘Scope of Article’. 18 The ILC uses the words ‘special problem’ to describe the interpretation of multilingual treaties, YILC, 1964, vol. II, p 55. 19 See the commentaries relating to these Articles in this work. 20 Third Report on the Law of Treaties, A/CN.4/167 and Add.1–3, YILC, 1964, vol. II, p 54. This was confirmed and further developed recently: ‘…the Vienna Convention's function is primarily heuristic’, E. Criddle, ‘The Vienna Convention on the Law of Treaties in US Treaty Interpretation’, VaJIL, 2004, vol. 44, p 495. 21 Third Report on the Law of Treaties, A/CN.4/107 and Add.1–3, YILC, 1964, vol. II, p 57. 22 Ibid, p 55. 23 Sixth Report on the Law of Treaties, A/CN.4/186 and Add.1–7, YILC, 1966, vol. II, p 100. In

a recent work, semiotician Umberto Eco illustrates, with many examples, this impossibility inherent to languages, Dire quasi la stessa cosa. Esperienze di traduzione (Milan: Bompiani, 2003). 24 Ibid, p 93. 25 Third Report on the Law of Treaties, A/CN.4/167 and Add.1–3, YILC, 1964, vol. II, p 54. 26 Ibid, p 56. 27 YILC, 1964, vol. II, p 204. 28 Third Report on the Law of Treaties, A/CN.4/167 and Add.1–3, YILC, 1964, vol. II, p 54. 29 In fact, Linderfalk, in ch. 11 of his recent work, maintains the distinction between these two understandings of ‘object and purpose’, even in the face of arguments by opposing authors who find incoherence between Arts 31–32 and Art. 33: U Linderfalk, On the Interpretation of Treaties. The Modern International Law as Expressed in the 1969 Vienna Convention on the Law of Treaties (Dordrecht: Springer, 2007). We will show that this duality, far from being incoherent, reveals the true originality of Art. 33. 30 See the commentaries on Arts 31 and 32 in this work. 31 This is obvious from J. Hardy's learned works, in which he proposes very detailed analyses of decisions, which we cannot undertake in this commentary. 32 See the commentary on Art. 31 by J.-M. Sorel in this work at para. 3. 33 PCIJ, 1924, Series A, no. 2, p 19 (emphasis added). 34 Yearbook of the European Convention on Human Rights, 1968, Wemhoff case, pp 796 ff, esp. no. 7, p 802. The same finding was made in the Sunday Times case, see ibid, 1979, pp 402 ff. 35 Indeed, other formulations of the treaty, eg in working languages, official languages, official translations, etc., can serve as a support for determining these intentions (see Arts 31 and 32 of the Convention). 36 Authentication is a ‘procedure by which it is declared that a written text corresponds to the intentions of those who negotiated it and that they deemed it definitive’, Nguyen Quoc Dinh, P. Dailler, and A. Pellet, Droit international public (7th edn, Paris: LGDJ, 2002), p 134 (own translation). See esp. the commentary of Art. 10 in this work. 37 Arabic as an official language and as a working language of the General Assembly was added in 1973. 38 See Preparation of Multilingual Treaties: Memorandum by the Secretariat, A/CN.4/187, YILC, 1966, vol. II, pp 106 ff. 39 A/CONF.39/11, 1st session, 1968, p 190. 40 J. Basdevant (ed.), Dictionnaire de la terminologie du droit international (Paris: Sirey, 1960), p 365 (own translation). 41 See Preparation of Multilingual Treaties: Memorandum by the Secretariat, A/CN.4/187, YILC, 1966, vol. II, pp 106 ff. 42 Section 30 of this Convention provides that: All differences arising out of the interpretation or application of the present convention shall be referred to the International Court of Justice, unless in any case it is agreed by the Parties to have recourse to another mode of settlement. If a difference arises between the United Nations on the one hand and a Member on the other hand, a request shall be made for an advisory opinion on any legal question involved in accordance with Article 96 of the Charter and Article 65 of the Statute of the Court. The opinion given by the Court shall be accepted as decisive by the Parties. 43 See, for details, Preparation of Multilingual Treaties: Memorandum by the Secretariat, A/CN.4/187, YILC, 1966, vol. II, pp 107–8. 44 Preparation of Multilingual Treaties: Memorandum by the Secretariat, A/CN.4/187, YILC, 1966, vol. II, p 108, citing the Summary of the Practice of the Secretary-General as Depositary of Multilateral Agreements, ST/LEG/7, para. 3. 45 Rapport explicatif relatif au Statut de Rome de la Cour pénale internationale, à la loi fédérale sur la coopération avec la Cour pénale internationale ainsi qu'à une révision du droit pénal, Section 2.12 ‘Clauses finales (chap. XIII, art. 119 to 128)’, Département fédéral des affaires étrangères, June 2000, p 57 (own translation). 46 The text of the treaty between Austria-Hungary, Bulgaria, Germany, Turkey, and Russia, signed 3 March 1918, is reproduced in J. A. S. Grenville, The Major International Treaties 1914–1973 (London: Methuen, 1974), pp 34 ff. 47 Treaty of Friendship Between Japan and Ethiopia (Addis-Ababa, 19 December 1957, UNTS, vol. 4695, p 325), which came into force 10 May 1958. 48 Peace Treaty (adopted 30 October 1918, entered into force 31 October 1918) is reproduced in J. Hurewitz, The Middle East and North Africa in World Politics, A Documentary Record (New Haven, CT: Yale University Press, 1979), no. 128, pp 2 ff. 49 Treaty of 14 May 1897, reproduced in CTS, vol. 184, pp 431 ff. 50 Report of the ILC on the Work of its Eighteenth Session, Geneva, 4 May–19 July 1966, YILC, 1966, vol. II, p 224, para. 4. 51 J. Hardy, BYIL, 1961, p 126.

52 See infra, para. 78. 53 Admission of a State to the United Nations (Charter, Art. 4), Advisory Opinion, ICJ Reports 1948, pp 56 and 62. 54 Ibid, p 86. 55 Ibid, pp 110 and 112. 56 German-Czech Tribunal Arbitral Mixte, 27 April 1923, see G. Gidel (ed.), Recueil des decisions des Tribunaux Arbitraux Mixtes institués par les Traités de Paix, 10 vols (Paris: 1922–30), vol 3, p. 997. 57 Report of the ILC on the Work of its Eighteenth Session, Geneva, 4 May–19 July 1966, YILC, 1964, vol. II, p 2259. 58 Faced with this dual use of ‘object and purpose’, Linderfalk, supra n 29 (pp 364 ff), notes and criticizes the sceptical stance taken by some authors, notably Hummer and Hilf. His position is summed up as follows: At the application of Article 31 § 1, appliers always work with a material consisting of several meanings ascribed to one text; at the application of Article 33 § 4, appliers have several meanings to examine, but also several texts, and more than one meaning is never ascribed to a text. Clearly the two acts of interpretation are not identical. (p 366) 59 Arbitral Tribunal for the Agreement on German External Debts, 16 May 1980, ILR, vol. 59, p 495, at p 548 (emphasis added). 60 On the notion of useful effect, see the commentary on Art. 31 in this work. 61 PCIJ, 1924, Series A, no. 2. Then again, it is not certain that it is a jurisprudential rule, ie a judicial decision with a certain degree of generality, as opposed to a solution tailored to the particular situation with which the PCIJ was confronted. See Report of the ILC on the work of its eighteenth session, Geneva, 4 May–19 July 1966, YILC, 1964, vol. II, p 225, para. 8, where the ILC supported the latter position (ibid). J. Hardy criticizes even the merits of the in casu restrictive interpretation solution; see BYIL, 1961, vol. 37, p 72, at pp 76 ff, esp. p 80. 62 Case ‘Relating to certain aspects of the laws on the use of languages in education in Belgium’ v Belgium, Application no. 1474/62, ECHR, Series A, vol. 6, 23 July 1968. 63 Ibid, para. 38. 64 PCIJ, Advisory Opinion, 12 August 1922, Series B, no. 2, pp 32 ff. 65 A/CONF.39/11, 1st session, 1968, p 188. 66 Ibid. 67 PCIJ, 1924, Series A, no. 2, p 20. 68 ICJ Reports 1984, p 392, 27 June 1986, pp 575–6. And the French version: Or il vient d'être démontré que l'objet et le but de l'Article 36, paragraphe 5, du Statut étaient de ‘maintenir’, ou de ‘préserver’ les déclarations faites en vertu de la disposition facultative du Statut de la Cour permanente, par lesquelles les Etats Parties à ce Statut étaient ‘liés’.…Autrement dit, l'objet et le but étaient ceux qui correspondent à l'interprétation restrictive du texte. De plus, si l'on retient cette interprétation restrictive du texte anglais, il est tout à fait raisonnable de conclure que c'est aussi celle du texte français; autrement dit, que c'est cette interprétation qui ‘concilie le mieux’ les deux textes. Si par contre on interprète le texte français de façon large, il faut alors écarter le texte anglais—sans parler des trois autres textes officiels.…Il est en effet indéniable que le sens du texte anglais, ainsi que des textes espagnol, russe et chinois, est que l'Article 36, paragraphe 5, ne s'applique qu'aux déclarations toujours (still) en vigueur, ce qui sous-entend assurément que les déclarations en question étaient en vigueur au départ. Par conséquent, si l'on applique les règles du droit des traités sur l'interprétation des textes rédigés en plusieurs versions, l'idée que l'Article 36, paragraphe 5, avait pour objet de donner vie à des déclarations dénuées de valeur n'est pas soutenable. 69 Emphasis added. See J. Hardy, BYIL, 1961, p 73, fn 2. 70 This is far from being a theoretical possibility. In the highly sensitive context of disarmament, eg, B. R. Tuzmukhamedov notes: ‘Khlestov, who in 1973–76 headed the Soviet delegation at the Vienna talks on mutual force reductions in Central Europe told me that there appeared to be two German translations of the final communiqué of the first stage of negotiations. The delegation of the former GDR used the Russian version to make a translation, while the delegation of FRG based its translation on the English version. That resulted in a discrepancy in a particular provision of a text in the German language. As Khlestov explained, ‘terms and expressions used in the Russian and English versions were not precisely identical, but that was a result of a certain compromise reached by negotiators’: interview with O. Klestov, 28 December 1933 (on file with author). Polish Yearbook of Int'l L, 1994, p 218. For more on deliberate ‘grey zones’, see ibid, p 235. The famous Res. 242 of the Security Council provides an emblematic illustration of ‘intentional’ vagueness and divergence within and between texts, here in French and English: ‘Withdrawal of Israel armed forces from territories occupied in the recent conflict’ contrasts with ‘Retrait des forces israéliennes des territoires occupés lors du récent conflit’. The French version may suggest that all occupied territories fall under the rule, whereas the English version appears more restrictive, suggesting that only some territories are concerned.

71 G. Steiner, After Babel. Aspects of Language and Translation (Oxford: Oxford University Press, 1976), p 171. * Professor, Faculty of Law and Criminal Justice and Faculty of Geosciences and Environment, University of Lausanne, and European Academy of Legal Theory, Brussels, Belgium. ** Legal Counsel, Supreme Court of Canada.

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Volume I, Part III Observance, Application and Interpretation of Treaties, s.3 Interpretation of Treaties, Art.33 1986 Vienna Convention Alain Papaux, Rémi Samson From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Object & purpose (treaty interpretation and) — Pacta sunt servanda

(p. 885) 1986 Vienna Convention Article 33 Interpretation of treaties authenticated in two or more languages 1. When a treaty has been authenticated in two or more languages, the text is equally authoritative in each language, unless the treaty provides or the parties agree that, in case of divergence, a particular text shall prevail. 2. A version of the treaty in a language other than one of those in which the text was authenticated shall be considered an authentic text only if the treaty so provides or the parties so agree. 3. The terms of the treaty are presumed to have the same meaning in each authentic text. 4. Except where a particular text prevails in accordance with paragraph 1, when a comparison of the authentic texts discloses a difference of meaning which the application of articles 31 and 32 does not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted. 1. Article 33 of the 1986 Convention adopts word for word the text and title of Article 33 of the 1969 Convention. This strict correspondence evidences the spirit in which the Articles dealing with interpretation in the two Conventions were drafted. The text of a treaty was recognized as primary, as the crux of the whole process of interpretation. In a sense, the text ‘speaks’ by and for itself. Therefore, the nature of the parties becomes a secondary consideration. Whether faced with a State or an international organization, the text of the treaty, along with the agreement it is supposed to express, is not affected. This holds true for any of the many legal forms of international organizations. Since the notion of ‘authentic text’ is fundamentally the same whether the parties who have authenticated it are States and/or international organizations (in their myriad of legal forms), elaborating Article 33 of the 1986 Convention could not pose a serious problem: No observation has been made on Articles 31, 32 and 33, which are identical to the corresponding texts in the Vienna Convention, and they require no comment or change.1 2. The Articles were not commented upon in writing by governments, and were sent back to the Drafting Committee as they were.2 The Special Rapporteur, P. Reuter, explains why, ultimately, Section 3 of the Vienna Convention was not adapted to the particular legal situation of international organizations: (p. 886) Five Articles involve no change in relation to the provisions of the 1969 Convention: Article 26 (Pacta sunt servanda), Article 28 (Non-retroactivity of treaties) and the whole part III, section 3, of the Convention (Articles 31, 32 and 33) concerning interpretation of treaties. These are very general rules relating to the very essence of the conventional mechanism.3 * RÉMI SAMSON **

ALAIN PAPAUX

Footnotes: 1 Tenth Report on the Question of Treaties Concluded Between States and International Organizations or Between Two or More International Organizations by P. Reuter, Special Rapporteur, YILC, 1981, vol. II, Part One, p 65. 2 YILC, 1982, vol. II, Part One, p 8. 3 YILC, 1975, vol. II, p 27. * Professor, Faculty of Law and Criminal Justice and Faculty of Geosciences and Environment, University of Lausanne, and European Academy of Legal Theory, Brussels, Belgium. ** Legal Counsel, Supreme Court of Canada.

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Volume I, Part III Observance, Application and Interpretation of Treaties, s.4 Treaties and Third States, Art.34 1969 Vienna Convention Eric David From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Treaties, effect for third states — Customary international law — Object & purpose (treaty interpretation and)

(p. 887) 1969 Vienna Convention Article 34 General rule regarding third States A treaty does not create either obligations or rights for a third State without its consent. A. General characteristics 887 Object 887 Customary status 888 B. Interpretation of the Article 890 The notion of treaty 890 The notion of ‘rights’ and ‘obligations’ 892 The third State 895 Consent 896

Bibliography Simma, B., ‘From Bilateralism to Community Interest in International Law’, RCADI, 1994-VI, vol. 250, pp 217–384 Smets, P.-F., Les effets des traités internationaux à l'égard des tiers, Université de Paris, Institut des hautes études internationales, 1965–66 Tomuschat, Ch., ‘Obligations Arising for States without or against their Will’, RCADI, 1993-IV, vol. 241, pp 195–374 Weil, P., ‘Vers une normativité relative en droit international?’, RGDIP, 1982, pp 5–47

A. General characteristics1 Object 1. Article 34 of the Vienna Convention enunciates the classic principle of the relative effect of treaties, namely, that a treaty only creates rights and obligations for the States that are parties to it. However, according to the principle pacta tertiis nec nocent nec prosunt, third States still maintain a res inter alios acta. 2 Although within municipal legal orders3 the rule expresses a classic principle of the law of contracts, in international (p. 888) law it is based on the sovereignty and independence of States,4 as remarked by the Permanent Court of International Justice (PCIJ) in the case Status of Eastern Carelia.5 In that case, it was decided that Russia did not have to submit to the dispute resolution regime of the Covenant of the League of Nations unless it had accepted it. For the Court: This rule, moreover, only accept[ed] and applie[d] a principle which [was] a fundamental principle of international law, namely, the principle of the independence of States.6 In other words, the relativity of treaties is only an expression of voluntarism in international law, and more specifically, of the fact that ‘The rules of law binding upon States…emanante from their own free will’.7 The application of the principle of the relative effect of treaties is also an expression of the overall relativity of international law, notably of custom8 or judicial decisions (relative binding force of res judicata) (Statute of the Internationa Court of Justice (ICJ), Art. 59).9

References 2. The Vienna Convention refers to the principle of relativity in various parts of the text, notably regarding acceptance of reservations (Art. 20, para. 4), successive treaties (Art. 30, para. 4), and amendment and modification of treaties (Art. 40, para. 4; Art. 41). Obviously, such relativity does not create an obstacle to the enforcement of a treaty rule against a third State as a customary rule, which in any case does not constitute an exception to the principle of relativity of treaties.10 3. States parties to a treaty may ‘reinforce’ its relativity; for example, the Convention (IV) of The Hague of 18 October 1907 on the laws and customs of war on land contains a si omnes clause in its second Article, according to which the Convention does not apply ‘except between Contracting powers, and then only if all the belligerents are parties to the Convention’.11

References

Customary status 4. The customary character of the rule is not in doubt. International jurisprudence often refers to it. Some examples, among many others, are:12 • The arbitral award rendered in the Island of Palmas case (4 April 1928): ‘It is evident

that whatever may be the right construction of a treaty, it cannot be interpreted as disposing of the rights of independent third Powers’. 13 • The arbitral award of the France/Mexico Claims Commission in the Pablo Nájera case (19 October 1928): ‘There is no doubt that Article 18 [of the Covenant of the League (p. 889) of Nations] is irrelevant for conventions concluded between two States not members of the League…’. 14 • The judgment of the PCIJ in the case Certain German Interests in Polish Upper Silesia (25 May 1926): ‘A treaty only creates law as between the States which are parties to it; in case of doubt, no rights can be deduced from it in favour of third States’. 15 • The judgment of the PCIJ in the case Free Zones of Upper Savoy and the District of Gex (7 June 1932). For the Court, Article 435 of the Treaty of Versailles of 1919 ‘is not binding upon Switzerland, who is not a Party to that Treaty, except to the extent to which that country accepted it’. 16 • The judgment of the ICJ in the Anglo-Iranian Oil Company case (22 July 1952): ‘A third-party treaty, independent of and isolated from the basic treaty, cannot produce any legal effect as between the United Kingdom and Iran: it is res inter alios acta’. 17 • The judgment of the European Court of Justice (ECJ) in the Brita case (25 February 2010), which relied on Article 34, observed that: even though the Vienna Convention does not bind either the Community or all its Member States, a series of provisions in that convention reflect the rules of customary international law which, as such, are binding upon the Community institutions and form part of the Community legal order… • In its commentary, the ILC declared: ‘There is abundant evidence of the recognition of the rule in State practice and in the decisions of international tribunals, as well as in the writings of jurists’. 18 This issue was never contested or challenged during the work of the two sessions at the Conference of Vienna on the law of treaties (1968–69).19

References 5. Even when the doctrine seems to consider that treaty rules could be binding upon third States, this occurs in cases where those rules are similar to general customary rules,20 which of course is not an exception to the principle of relativity of treaties. That said, P. Weil is concerned that in asserting the general character of a rule, the jurisprudence ignores its relativity and imposes the rule on States which would not want to accept it.21 The examples he cites, however, are not very convincing. Although it is true that the ICJ invokes rules it characterizes as general in nature, there are no examples of the Court imposing any such rule on a State which did not accept it.22

(p. 890) B. Interpretation of the Article The notion of treaty 6. Treaties covered by Article 34 are obviously those contemplated and defined in Article 2(1) (a) of the Vienna Convention. 7. For certain so-called ‘objective’ treaties, the question posed is whether those treaties constitute an exception to the principle of the relative effect of treaties, as they define and establish regimes applicable to subjects of law which would not formally have agreed to them.23 For example, this would be the case of transportation and communication treaties and of treaties granting a territorial or political status; namely, of treaties applicable erga omnes.24 8. Transportation and communication treaties are, notably, those that regulate the use of international waterways or straits; for example, for European international rivers, the Final Act of the Congress of Vienna of 9 June 1815 (Art. 109);25 for the Strait of Magellan, the Treaty of Buenos Aires of 23 July 1881 (Art. 5);26 for the rivers Congo, Niger, the General Act of the Berlin Conference of 26 February 1885 (Arts 13 ff,27 and 26 ff);28 for the Suez Canal, the Convention of Constantinople of 29 October 1888 (Art. 1);29 for the Dardanelles and Bosporus Straits, the Montreux Convention of 20 July 1936 (Art. 1);30 etc.

References 9. Treaties granting a territorial or political status are notably treaties of neutralization,31 demilitarization and/or internationalization,32 boundary delimitation and cession,33 and creation of an international entity (eg the constitutive act of an international organization).34

References 10. The assertion that the treaties mentioned supra would contain provisions binding upon third States is not convincing, as the jurisprudence offers several examples refusing the enforceability against third parties of so-called ‘objective’ treaties. Such was the case of the Barcelona Convention of 20 April 1921 on the regime of navigable waterways of international concern, which the PCIJ held inapplicable to Poland because it had not ratified it.35 Similarly, in the Island of Palmas case, the arbitrator Max Huber indicated that the treaties concluded by

Spain with several States recognizing its sovereignty over the Philippines were not binding on the Netherlands, as it was not a party to those treaties.36 It is also worth noting, mutatis mutandis, that when the ICJ is called upon to demarcate a boundary or when the interests of a third State to a proceeding are at issue, the Court proceeds to that delimitation taking great care in ensuring that the rights of the third State (p. 891) are not encroached upon.37 The source of the error consisting in considering objective treaties as enforceable against third States undoubtedly lies in the fact that when a State is in a situation governed by a so-called objective treaty, it must submit to it. For example, foreign vessels utilizing an international waterway regulated by a treaty must submit to that regime. The ‘objectivity’ of the regime is implied from the fact that the third State ‘cannot contest that which has been validly established without its agreement’.38 Since in that particular case, the regime at issue was determined by the States which were, a priori, the only ones holding any jurisdictional power to that effect, there is no reason why a third party could find a ground for an infringement of its rights within the treaty. If, for example, an area is subject to the sovereignty of two or more States, only those States may regulate its use. This is owing to the rights they possess over that area ab initio. The ILC wrote: For example, in the case of a provision allowing freedom of navigation in an international river or maritime waterway, the territorial State has the right in virtue of its sovereignty to lay down relevant conditions for the exercise of the right provided, of course, that they are in conformity with its obligations under the treaty.39 The rules adopted by the States concerned apply to all users of that space exactly in the same manner as the laws of a State apply, in principle, to its entire territory; hence becoming binding on anyone in it. Using the same analogy, no one would dare say that the territorial application of the law violates the principle of relativity in international law.

References 11. In the jurisprudence, the only case that sanctioned the idea of an ‘objective’ treaty was the Reparations case. In that well-known judgment, the ICJ declared that the UN, owing to the number of States members of this organization, had an existence which could be established even against third States: …fifty States, representing the vast majority of the members of the international community, had the power, in conformity with international law, to bring into being an entity possessing objective international personality, and not merely personality recognized by them alone.40 In other words, the ICJ considered that the UN had a distinct legal personality allowing it to act as an entity vis-à-vis non-member States; hence establishing its ‘objective’ legal existence. It followed that in the Court's view, the Charter implied that the UN could directly negotiate with third States and that they were, in a way, ‘obliged’ to recognize that fact. In any event, that is an isolated case. Moreover, it is noteworthy that whenever the Court enforces a rule against a State, no matter how little support it has received from the rest of the international community, the Court still attempts to show that the State had actually accepted that rule.41 Ultimately, neither the ILC nor the Vienna Convention retained the idea that objective treaties could be binding on third States.42

References

(p. 892) The notion of ‘rights’ and ‘obligations’ 12. The rights and obligations mentioned in Article 34 must be given their ordinary meaning; as either a subjective legitimate interest or prerogative recognized by law (here, international law),43 or an obligation similarly established and defined by a rule of international law. It may be referred to as a ‘legal relation by which a subject of international law is obliged to adopt or abstain from adopting a given behaviour in respect of one or more other subjects’.44 The rule sometimes led to unexpected results. For example, in the Brita case, the question submitted to the ECJ concerned the refusal by Germany to grant preferential tariff arrangements to products coming from Israeli settlements of the West Bank and imported in the EU. This preferential treatment was provided for by the 1995 EC-Israel Association Agreement but the EC had concluded a similar agreement in 1997 with the PLO. The territorial scope of these Agreements was Israel for the 1995 one, and the West Bank and the Gaza Strip for the 1997 one. In both agreements, the preferential treatment for exports was to be made out by an exporter who has been approved by the ‘customs authorities of the exporting [State]’.45 As the Israeli and Palestinian customs authorities had ‘exclusive competence—within their territorial jurisdiction—to issue movement certificates EUR.1 or to approve exporters based in the territory under their administration’,46 the ECJ concluded that the refusal of the preferential treatment to the products coming from Israeli settlements was a result of the relative effect of treaties. According to the ECJ, to interpret the EC-Israel Association Agreement as meaning that the Israeli customs authorities enjoy competence in respect of products originating in the West Bank would be tantamount to imposing on the Palestinian customs authorities an obligation to refrain from exercising the competence conferred upon them by virtue of the abovementioned provisions of the EC-PLO Protocol. Such an interpretation, the effect of which would be to create an obligation for a third party without its consent, would thus be contrary to the principle of general international law, ‘pacta tertiis nec nocent 47

nec prosunt’, as consolidated in Article 34 of the Vienna Convention.47 It would probably have been simpler to refuse the preferential treatment on the basis of ‘ex injuria jus non oritur’48 rather than on the basis of ‘pacta tertiis…’

References 13. ‘Stand guarantee’ obligations:49 although the relative effect of treaties excludes the possibility that they may confer rights or obligations to States not parties to them, clauses requiring that States parties obtain a specific behaviour from a third State are sometimes presented as exceptions to that principle. Such is the case of Article 2(6) of the Charter of the United Nations, mistakenly referred to by India as imposing ‘corresponding obligations upon non-member States’.50 It is obvious that this provision does not constitute an exception to the principle of the relative effect, since there is no obligation being imposed (p. 893) on third States. According to the terms of Article 6(2), only the UN is obliged to ensure that nonmember States comply with the principles of the maintenance of international peace and security; the Article does not imply that non-member States are bound by those principles.51 Despite this, it must be noted that in practice, the Security Council does not forego the multiplication of resolutions requiring that ‘all States’52 do or abstain from doing something, without concern as to whether the addressees of those resolutions are members of the United Nations.53 Even if there are not many third States to the UN, could it be said that they are bound by its mandatory resolutions? Notably, before Switzerland became a member of the United Nations in 2002, it reserved the right to carry out, or not carry out, those resolutions.54

References 14. Most-favoured-nation clause: this type of clause is not an exception to the principle of the relative effect either. The right that a given State A may draw from a treaty concluded by two other States thanks to a most-favoured-nation55 clause finds its source in the original treaty containing the clause, concluded between State A and one of the two other States. In the Anglo-Iranian Oil Company case, the United Kingdom intended to avail itself of treaties concluded by Iran with third States by invoking the respective most-favoured-nation clause included in each of those treaties. The ICJ explained the operation of the clause in the following manner: But in order that the United Kingdom may enjoy the benefit of any treaty concluded by Iran with a third party by virtue of a most-favoured-nation clause contained in a treaty concluded by the United Kingdom with Iran, the United Kingdom must be in a position to invoke the latter treaty. The treaty containing the most-favoured-nation clause is the basic treaty upon which the United Kingdom must rely. It is this treaty which establishes the juridical link between the United Kingdom and a third-party treaty and confers upon that State the rights enjoyed by the third party. A third-party treaty, independent of and isolated from the basic treaty, cannot produce any legal effect as between the United Kingdom and Iran: it is res inter alios acta.56

References 15. Rights recognized by a treaty to third States: although there are no known exceptions to the principle of the relative effect of treaties with regard to obligations, the matter is more nuanced regarding rights conferred to third States by a treaty. As the ILC recognized in its commentary: The division of opinion related to the question whether a treaty may of its own force confer rights upon a non-party. One group of members considered that, if the parties so intend, a treaty may have this effect, although the non-party is not, of course, obliged to accept or exercise the right. Another group of members considered that no actual right exists in favour of the non-party unless and until it is accepted by the nonparty.57 (p. 894) 16. It is not necessary to go into a detailed analysis of that debate which, in any case, does not have much practical application58 and was resolved in the sense indicated in Article 36 of the Vienna Convention.59 Suffice it to say that it is perfectly logical to support the thesis according to which, in the case of rights recognized to third States, there is an exception to the principle of the relative effect of treaties. This recognition does not call into question the sovereignty of beneficiary States; it is simply a corollary of the fact that the holder of a right is free to choose whether or not it wishes to exercise it, while the holder of an obligation, by definition, does not have the freedom to choose whether it wishes to submit to it. This situation is much more common than one may imagine.60 One may think of final clauses of treaties providing that they are open, subject to the fulfilment of certain conditions, to States other than those which participated in the creation of the treaty. When a treaty provides that it is open ‘for signature by all States Members of the United Nations…’61 or ‘for signature by all States’,62 it directly confers upon all the States concerned the right to sign it. This right is conferred upon by ‘law’ (in this case, the treaty). It exists independently of its acceptance63 and exercise by the beneficiary of the right. Actual or latent right? The distinction is irrelevant as it is clear that this right does not produce any effect so long as the right holder does not exercise it. It is true that the Vienna Convention requires the consent of the beneficiary State. However, it is revealing that, contrary to what the Convention prescribes regarding the acceptance of obligations, where, rightly so, express and written consent is required (Vienna Convention, Art. 35 in fine), with regard to the acceptance of rights, tacit consent satisfies the 64

requirement under the Convention (Art. 36(1), 2nd sentence).64 A comparison with the stipulation for the benefit of a third party in civil law65 is justified. As it is the case for the latter, the consequences of a treaty conferring a right upon third parties are subject to the exercise of that right. For example, in international law a treaty open to all States may, surely, be abrogated by the sole action of the States parties to it, without the authorization of third States which have not exercised their right to become parties to it.66 The latter only have a say on the matter if they exercise their right to become parties to the treaty, hence ceasing to be third States.

References 17. Another classic example of a treaty recognizing rights to a third State is Article 35(2) of the Charter of the United Nations, which authorizes any State non-member of the United Nations, subject to certain conditions, to ‘bring to the attention of the Security Council or of the General Assembly any dispute to which it is a party’.

References

(p. 895) The third State 18. A third State is a State which is not a party to the treaty concerned.67 19. ‘Witness’ state: certain treaties are co-signed by a State acting as a ‘witness’. This was the case of the Peace Accords concluded at Camp David on 17 September 1978 by Egypt and Israel, co-signed by the United States (J. Carter) in the capacity of ‘witness’.68 Similarly, the Peace Accord concluded at Algiers on 12 December 2000 by Eritrea and Ethiopia was cosigned in the capacity of ‘witnesses’ by Algeria (A. Bouteflika), the United States (M. Albright), the UN (K. Annan), the Organisation of African Unity (S. Ahmed Salim), and the European Union (R. Serri).69 Are those witnesses parties or third parties to the treaty? Witnesses do not seem to be parties to the treaty and simply remain ‘witnesses’ to it. The treaties (in the examples supra) do not include any provisions creating obligations for witnesses. The only engagement they have entered into consists of bearing witness to what is established in the treaty and, if necessary (although this is not specified anywhere), to what would have been said during its negotiation. Therefore, in this type of situations, witnesses remain third parties to the treaty despite the fact that they have co-signed it. 20. Aggressor state: the principle of the relative effect does not invalidate a treaty establishing obligations for a third State responsible of an act of aggression, as it follows from Article 75 of the Vienna Convention.70 21. All States not parties to the treaty: the principle of the relative effect is, in principle, incompatible with the notion of obligations ‘erga omnes’. That is, a treaty can only produce erga omnes obligations if it has been accepted by all States, of course without prejudice to the case envisaged in Article 38 of the Vienna Convention (treaties becoming binding on third States through international custom) and the case of rights recognized by a treaty to all third States to the treaty, as indicated supra.71 It follows that, when the ICJ notes the existence of erga omnes obligations arising for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination72 it is referring to customary rules which, owing to their general character, unavoidably have an effect erga omnes. In contrast, it would seem more questionable to contend that in that case the Court took notice of the existence of ‘erga omnes treaty regimes’.73 As already observed,74 when the ICJ intends to enforce a rule against a State which refuses to implement it, while at the same time the remaining of the international community stands in its favour, the Court does not speak of a rule applicable erga omnes, but of a rule also recognized by the State concerned. The reasoning in the Namibia case serves as a model75 in this regard and is coherent with the recognition by the Court of the ‘persistent objector’76 theory, namely, that as long as a State persists in rejecting a rule (ab initio, of course), it is not subject to it.

References

(p. 896) Consent 22. Consent by a third State to the legal effects of a treaty can only arise from the rules enunciated in Articles 35 and 36 of the Vienna Convention.77 23. The obligations following from a treaty cannot bind a third State to the treaty without its consent. In the Status of Eastern Carelia case, the PCIJ indicated that States not members of the League of Nations were not bound by the Covenant, and from this fact the Court deduced that: ‘The submission, therefore, of a dispute between [third States] and a Member of the League for solution according to the methods provided for in the Covenant, could take place only by virtue of their consent’.78

References 24. In conclusion, the relative effect of treaties may not be as absolute (!) as some may have

imagined. This notwithstanding, the fact that a treaty cannot impose obligations on a third State does not exclude that it may confer rights upon it, as the latter situation is perfectly compatible with the sovereignty of the third State. *

ERIC DAVID

Footnotes: 1 The commentary on this provision must obviously be read taking into account the commentary on Arts 35–8. 2 G. Fitzmaurice, ACDI, 1956, vol. II, p 111; ibid, 1960, vol. II, pp 68 ff; Sir H. Waldock, ACDI, 1964, vol. II, pp 15 ff; Report of the ILC, ACDI, p 188; ibid, 1966, p 246. 3 At least, for States under the civil law tradition; eg Art. 1165 of the Napoleonic Code provides that: Agreements produce effect only between the contracting parties; they do not harm a third party, and they benefit him only in the case provided for in 1121 [case of the stipulation for the benefit of a third party]. 4 Report of the ILC, ACDI, 1966, vol. II, p 246. 5 PCIJ, Advisory Opinion of 23 July 1923, Series B, no. 5, p 27. 6 Ibid. 7 PCIJ, case of the SS Lotus, judgment of 7 September 1927, Series A, no. 10, p 18. 8 Cf Judgment of 18 December 1951 (United Kingdom v Norway), ICJ Reports 1951, p 131. 9 See esp. Judgment of 11 June 1998, Land and Maritime Boundary between Cameroon and Nigeria, ICJ Reports 1998, p 292, para. 28. 10 See infra para. 20, and the commentary on Art. 38 in this work. 11 Emphasis added. 12 See for other examples from the practice and jurisprudence, P.-F. Smets, Les effets des traités internationaux à l'égard des tiers, Université de Paris, Institut des hautes études internationales, 1965–66, pp 4–17. 13 RGDIP, 1935, p 168. English version of the text available at: http://www.haguejusticeportal.net/eCache/DEF/5/184.TD1GUg.html. 14 Own translation: RIAA, vol. V, p 471; see also Clipperton Island, 28 January 1931, RIAA, vol. II, p 1110; Forests in Central Rhodophia, 29 March 1933, RIAA, vol. III, p 1417. 15 Series A, no. VII, pp 28–9. 16 Series A/B, no. 46, p 141; see also Series A, no. 22, p 17. 17 Judgment of 22 July 1952, Anglo-Iranian Oil Company case, ICJ Reports 1952, p 109; also, judgment of 20 February 1969, North Sea Continental Shelf, ICJ Reports 1969, p 25. 18 ACDI, 1966, vol. II, p 246. 19 Official Records, CRA, 1st session, 26 March–24 May 1968, pp 206–9, 482; ibid, 2nd session, 9 April–22 May 1969, pp 62–3 and 164. 20 Ch. Tomuschat, ‘Obligations Arising for States without or against Their Will’, RCADI, 1993-IV, vol. 241, pp 269 ff; B. Simma, ‘From Bilateralism to Community Interest in International Law’, RCADI, 1994-VI, vol. 250, pp 340 ff. 21 P. Weil, ‘Vers une normativité relative en droit international?’, RGDIP, 1982, pp 30 ff. 22 See infra para. 11. 23 P.-F. Smets, supra n 12, pp 31 ff; comments by the Netherlands to the draft Articles of the ILC on the law of treaties, cited in Sir H. Waldock, Sixth Report on the Law of Treaties, ACDI, 1966, vol. II, p 72. 24 Sir H. Waldock, Third Report on the Law of Treaties, ACDI, 1964, vol. II, p 27. 25 CTS, vol. 64, p 490. 26 Ibid, vol. 159, p 52. 27 Ibid, vol. 165, pp 494–9. 28 Ibid, pp 499–501. 29 Ibid, vol. 171, p 243. 30 LNTS, vol. 173. 31 eg Treaty of London of 19 April 1839 guaranteeing Belgium's neutrality, Article 7 (CTS, vol. 88, p 432). 32 eg Paris Convention of 30 March 1856 on the Demilitarisation of the Aaland Islands (CTS, vol. 114, p 406); Treaty of Washington of 1 December 1959 on the Antarctic (UNTS, vol. 402, p 71). 33 eg Treaty of Versailles of 28 June 1919, Arts 34 (Eupen and Malmedy), 51 ff (AlsaceLorraine), 80 ff (Austrian, Czechoslovak, and Polish boundaries), 109 ff (Slesvig), etc. (International Legislation, vol. I, pp 1 ff). 34 Along the same lines, P.-F. Smets, supra n 12 , pp 42–3. 35 Judgment of 10 September 1929, Territorial Jurisdiction of the International Commission of the River Oder, PCIJ, Series A, no. 23, p 19.

36 Judgment of 4 April 1928, RIAA, vol. II, p 850. 37 Cf Judgment of 3 June 1985, Continental Shelf (Libyan Arab Jamahiriya/Malta), ICJ Reports 1985, p 26, para. 21; judgment of 22 December 1986, Frontier Dispute (Burkina Faso/Mali), ICJ Reports 1986, p 579, para. 49. 38 Own translation: J. Verhoeven, Droit international public (Brussels: Larcier, 2000), p 417. 39 ACDI, 1966, vol. II, p 250. 40 Advisory Opinion of 11 April 1949, ICJ Reports 1949, p 185; that opinion was even invoked by the High Court of the Chancery Division in the case International Tin Council, 22 January 1987, ILR, vol. 77, p 26. 41 See how the Court, in its Opinion on Namibie, based the majority of the rules which it enforced against South Africa on the acceptance of those rules by South Africa (Advisory Opinion of 21 June 1971, ICJ Reports 1971, pp 29, 31, 34, 37, 39–43, 57, paras 47, 53, 63, 72, 74–8, 81, 83, 131). 42 According to the interventions by India and Uruguay (Official Records, CRA, 1st session, 26 March–24 May 1968, pp 208–9). 43 J. Salmon (ed.), Dictionnaire de droit international public (Brussels: Bruylant/AUF, 2001), p 368. 44 Own translation, ibid, p 765. 45 ECJ, Case C-386/08, 25 February 2010, para. 49. 46 Ibid, para. 51. 47 Ibid, para. 52. 48 On the illegality of the Israeli settlements in the Palestinian occupied territories, ICJ, Wall, Advisory Opinion, ICJ Reports 2004, 9 July 2004, para. 120. 49 Cf French Civil Code, Art. 1120: ‘One may, nevertheless stand guarantee for a third party, by promising his acting…’. 50 Intervention by India (Official Records, CRA, 1st session, 26 March–24 May 1968, p 208). 51 For other similar examples, Washington Treaty of 1 December 1959 on the Antarctic, Art. X (UNTS, vol. 402, p 81); Canberra Convention of 20 May 1980 on the Conservation of Antarctic marine fauna and flora, Art. XXII (UNTS, vol. 1329, p 68). 52 Emphasis added. 53 eg in the case of Sierra Leone, SC Res. 1132, 8 October 1997, paras 5, 6, 11, etc.; Ethiopia-Eritrea, SC Res. 1227, 10 February 1999, para. 7; Afghanistan, SC Res. 1267, 15 October 1999, para. 3; etc. 54 Ch. Tomuschat, supra n 20, pp 254–6. 55 The ILC defined the clause as follows: ‘…a treaty provision whereby a State undertakes to accord most-favoured-nation treatment to another State in an agreed sphere of relations’, Draft Articles on the most-favoured-nation clause, ACDI, 1976, vol. II, Part Two, p 13. 56 ICJ Reports 1952, p 109. 57 ACDI, 1966, vol. II, p 247. 58 Ibid, pp 248–9. 59 See infra the commentary on that provision. 60 J. Verhoeven, supra n 38, p 416. 61 Vienna Convention on the Law of Treaties, Art. 81. 62 Montego Bay Convention on the Law of the Sea of 10 December 1982, Art. 305, para. 1a (UNTS, vol. 1834). 63 Contra P.-F. Smets (supra n 12, p 55) who, in a different text, nevertheless concluded that objective treaties had effects erga omnes (loc. cit., p 45). 64 See infra the commentary on those provisions in this work. 65 French Civil Code, Art. 1121: One may likewise stipulate for the benefit of a third party, where it is the condition of a stipulation which one makes for oneself or of a gift which one makes to another. He who made that stipulation may no longer revoke it, where the third party declares that he wishes to take advantage of it. 66 Cf supra, French Civil Code, Art. 1121, 2nd sentence; see also Nguyen Quoc Dinh, P. Dailler, and A. Pellet, Droit international public (7th edn, Paris: LGDJ, 2002), para. 159. 67 Vienna Convention, Art. 2(1)(h). 68 ILM, 1978, p 1469. 69 UNTS, vol. 2138, p 85. 70 See infra commentary on this provision. 71 See supra para. 16. 72 Judgment of 5 February 1970, Barcelona Traction, ICJ Reports 1970, p 32, para. 34. 73 Nguyen Quoc Dinh, P. Dailler, and A. Pellet, supra n 66, para. 160. 74 See supra para. 11.

75 Cf supra n 20. 76 Judgment of 18 December 1951, Fisheries (United Kingdom v Norway), ICJ Reports 1951, p 131. 77 See infra the commentaries on those provisions in this work. 78 Advisory Opinion of 23 July 1923, Series B, no. 5, pp 27–8. * Professor Emeritus, l'Université libre de Bruxelles (ULB), Brussels, Belgium.

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Volume I, Part III Observance, Application and Interpretation of Treaties, s.4 Treaties and Third States, Art.34 1986 Vienna Convention Emmanuel Klimis From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Treaties, interpretation — Treaties, effect for third states

(p. 897) 1986 Vienna Convention Article 34 General rule regarding third States and third organizations A treaty does not create either obligations or rights for a third State or a third organization without the consent of that State or that organization. A. Transposing the provision to international organizations 897 B. The 1986 Convention and the concept of ‘third’ States andorganizations 898 Broad considerations 898 Are member States of an international organization third parties to treaties negotiated by the organization itself? 899 1. The text of Article 34 of the 1986 Convention is rather similar, mutatis mutandis, to Article 34 in the 1969 Convention. It simply enunciates a fundamental principle of international law: consensuality and relativity of treaties. 2. An overview of the discussions carried out by the ILC on this Article shows that its content was not particularly debated, at least with regard to its principles. The debate focused largely on its consequences, as well as the exceptions to the rule it laid out. Indeed, international practice shows several examples of specific situations requiring a certain latitude with regard to consensuality,1 situations which have been included by the 1986 Convention in other Articles of its Title IV (‘treaties and third states or third organizations’). For further details on these specific contexts, reference is made to the comments on the relevant Articles in the present work. 3. Focusing on Article 34 itself, two main questions were raised by the Commission with respect to its formulation. First, how to transpose a rule that had originally been formulated for States to international organizations; second, the exact meaning of the word ‘third’ as used in the wording of Article 34 has also been a subject of debate, particularly regarding the qualification as ‘third States’ of member States of an organization entering into a treaty.

A. Transposing the provision to international organizations 4. The principle of the relativity of treaties in its broad application and its transposition to international organizations has not been questioned by the ILC. On the contrary, it has been acknowledged that, although the agreement given by an international organization to enter a treaty does not place this organization in a situation fully comparable to (p. 898) that of a State, it is nonetheless clear that such an agreement is governed by the same principle of relativity. In the Commission's words: it will be agreed that, in respect of treaties between states and international organisations or between two or more international organisations, there would be no justification for departing from the line followed by the Vienna Convention. Thus the fundamental principle of the relative effect of the treaties will be adhered to, subject to rules of international law relating primarily to subjects other than the law of treaties.2 Up until now, this statement has never been challenged, either by later jurisprudence or by international practice. 5. If the general principles enshrined in the rule do not pose any particular problem, the same cannot be said when it comes to the consequences it generates. Amongst these, the effects on member States of a treaty concluded by an international organization deserve particular attention. The Special Rapporteur extensively discussed this point in his Sixth Report. However, before going into detail, a general question must be raised: can member States of an international organization be considered as third States vis-à-vis that same organization?

B. The 1986 Convention and the concept of ‘third’ States and organizations Broad considerations 6. As raised by the Soviet representative,3 Article 34 is the very first Article of the 1986 Convention to mention ‘third States’ and ‘third organizations’ as defined by Article 2(1)(h) of the Convention. Therefore both Articles must be considered together, and it is precisely because of the debates surrounding Article 34 that Article 2(1)(h) had to be reformulated by the Commission.4 7. The ILC began to realize the inappropriateness of the wording ‘third organization’ in the Convention draft project:5 first, because such an unusual expression was expected to raise interrogation, and because, semantically speaking, a ‘third’ party designates something precise, ie a person within a group of other persons, and of a similar nature; but also, because the Commission originally intended to use the term ‘non-party organization’ rather than ‘third organization’. Indeed: (p. 899) Not to be a party to a treaty is to be foreign to a conventional legal instrument…. It also means, but only inferentially, not to be bound, or at least not to 6

be directly bound by obligations arising from the instrument,6 but it does not imply a total lack of relations with the parties to that treaty. Being a ‘third’ party, therefore, ‘has a technically less precise, yet substantively more radical meaning: a “third” party is foreign to an instrument, its consequences, and all the rules deriving therefrom’.7 8. Now, as explained infra, such a nuanced understanding is particularly relevant when it comes to characterizing the situation of States that are members of an international organization which concludes a treaty that creates obligations towards its member States. Nonetheless, and in spite of a previous draft of Article 34 referring to ‘non-party organizations’, the final wording of the Article replaced that term with ‘third organizations’.

Are member States of an international organization third parties to treaties negotiated by the organization itself? 9. A study of the consequences on third parties of treaties that involve international organizations requires one to deal with an issue which had not—and could not have—been considered by the 1969 Convention: what consequences on the member States of an international organization does a treaty negotiated by the organization entail? Formally, member States are third parties to the treaty itself. Nonetheless, the treaty, because of the internal rules of the organization, may generate direct consequences on the member States.8 10. The question should not arise in theory, as the legal personality of international organizations should provide the answer. It is also clear that, at least in theory, the constituent charter of an international organization would normally require that States be bound by the agreements concluded by the organization. As the ILC stated: The member State is not a third party in relation to the organisation. Not only must it be supposed to know the constitution of the organisation in its entirety, but it has the duty to know it. One must go further; through its representatives in the organisation, the member State contributes to the formation of the will of the organisation.9 11. However, as the Special Rapporteur states,10 the formal legal personality of an organization is challenged by realities: The competence of an international organisation to conclude treaties is often uncertain, extending only to elementary matters or, if covering more important subjects, extremely ill-defined compared with the competence of its member States; in addition, more often than not, the organisation lacks the financial and human resources to ensure the effective performance of its own obligations.11 12. The issue of a treaty concluded by an international organization and creating obligations for its member States shows all its relevance from a practical point of view. (p. 900) However, such a situation is more a matter of pure speculation than of actual practice.12 It therefore seems preferable to examine the issue as it was debated by the ILC itself in its first report, as early as 1972.13 13. First, it must be noted that some organizations, namely the European Community and, to a certain extent, the Council of Europe, solved the problem by resorting to mixed agreements, concluded by the organization and its member States together. However, this type of solution was considered by the ILC as being an exception rather than reflecting the situation of international organizations in general. Therefore, these situations have not been integrated in the discussions on Article 34, and have been treated as exceptions. 14. Keeping in mind the stand it had taken earlier, the ILC decided to distinguish between two groups of situations,14 namely: • Treaties concluded by an international organization and creating only rights for its member States, namely headquarters agreements. Those could be covered by Article 36 of the 1969 Convention, since the States' consent would be presumed. • Treaties concluded by an international organization and creating obligations for the member States of that organization. In the latter case, one must establish whether the obligations are directly binding on the member States in their relations with a third party, implying that the agreement has a direct effect on the member States, or whether they are only binding on the member States of the organization when it comes to implementing the agreement. In such cases—of indirect effect—the obligation of the member States would exist only vis-à-vis the international organization. 15. In other words, agreements concluded by an international organization and engaging each of its member States will be treated differently from situations where an international organization concludes a treaty with a third party, and creates a direct obligation on its member States as a consequence. This latter option is referred to in Articles 35 to 37 of the Convention. 16. This specific question, and all the questions related to the Articles grouped under Title IV of the Convention, were extensively discussed by the ILC when it examined the draft proposal for Article 36bis.15 However, that Article was eventually excluded from the final text of the Convention. 17. To sum up briefly, former Article 36bis was intended to frame the effects, on member States of an international organization, of agreements concluded by that organization.16 The draft assumed several formulations, from an earlier version presuming the tacit agreement of member States, to a later version requiring the explicit consent of each of them. However, the

choice between several versions was avoided during the Vienna Conference, when Article 36bis was considered too theoretical, and excluded from the final document.17 (p. 901) 18. The debate eventually found a particularly careful conclusion with Article 74(3), which states that: The provisions of the present Convention shall not prejudge any question that may arise in regard to the establishment of obligations and rights for States members of an international organization under a treaty to which that organization is a party.18 19. As a matter of conclusion, it can be said that the principle of the relativity of treaties, as enshrined in the 1969 Convention, has—quite naturally—also been transposed to situations considered by the 1986 Convention. Quite apart from the specific situations dealt with in other Articles under Title IV of the Convention, this principle raises the question of the effects on member States of an international organization, of agreements concluded by the organization itself. And this very question, the only one concerning the general rule of consensuality as applied to situations considered by the 1986 Convention, has been avoided in the final text of the Convention. *

EMMANUEL KLIMIS

Footnotes: 1 See the discussions at the ILC, 1439th session, 13 June 1977 (YILC, 1977, vol. I, p 125). 2 Sixth Report of the Special Rapporteur, YILC, 1977, vol. II, Part One, p 121. See also Manin, who considers this application of the relativity of treaties as ‘well known and indisputable’ (Ph. Manin, ‘La Convention de Vienne sur le droit des traités entre Etats et organisations internationales ou entre organisations internationales’, AFDI, 1986, pp 454–73, own translation); the Special Rapporteur himself considers it as ‘a tautology, or, better, another wording of a treaty's definition’ (P. Reuter, Introduction au droit des traités (3rd edn, Paris: PUF, 1995), p 93, own translation). And Dailler and Pellet state that if the rule of relativity of treaties cannot be founded on sovereignty and equality when the treaties are agreed with international organisations, there is, nonetheless, no specific reason to challenge the rule itself: international organisations are subject to international law, and therefore bound to conventional consensuality. (Droit international public (7th edn, Paris: LGDJ, 2002), p 242, own translation) 3 YILC, 1982, vol. I, p 23. 4 For further details, see the commentary on this Article in the present work. 5 YILC, 1977, vol. II, Part One, p 129. 6 Ibid, p 125. 7 Ibid. 8 See Dailler and Pellet, supra n 2, p 244. 9 YILC, 1973, vol II, p 91. 10 YILC, 1977, vol. II, Part One, p 126. 11 Ibid. 12 Mentioning the question of obligations imposed on the State members of an international organization by agreements concluded by that organization, the ILC (YILC, 1972, vol. II, p 184) states that it ‘has not attracted much notice’ (See also Manin, supra n 2, p 470). 13 YILC, 1972, vol. II, p 197. 14 YILC, 1973, vol. II, pp 91–2. 15 As an illustration, see the debates within the ILC (YILC, 1982, vol. II, pp 24–5). 16 On the opposite question—the effects on an international organization of treaties concluded by its member States—see E. David, ‘Le droit international applicable aux organisations internationales’ in Mélanges en hommage à Michel Waelbroeck, vol. I (Brussels: Bruylant, 1999), pp 8 ff. 17 Its very principle was contested, since it appeared to target only one situation—that of the European Community—and had thus no relevance in a treaty carrying a much larger range of applications. Also, the EC itself ended up contesting the adoption of Art. 36bis in the final text of the Convention, since it carried a risk of binding it in the future, by putting in question the autonomy of international organizations (on this specific point, see Reuter, supra n 2, pp 107 ff). 18 See infra, commentary on this Article. On Art. 36bis and the many debates it generated, see also P. Klein, La responsabilité des organisations internationales dans les ordres juridiques internes et en droit des gens (Brussels: Bruylant, 1998), pp 442 ff. * Research fellow at the Research Centre for Political Science (CReSPo) of the Facultés Universitaires Saint-Louis, Brussels; visiting researcher at the Centre for International Law of ULB, Brussels, Belgium.

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Volume I, Part III Observance, Application and Interpretation of Treaties, s.4 Treaties and Third States, Art.35 1969 Vienna Convention Caroline Laly-Chevalier From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Treaties, effect for third states — Responsibility of states — Pacta sunt servanda — Customary international law — Travaux préparatoires

(p. 902) 1969 Vienna Convention Article 35 Treaties providing for obligations for third States An obligation arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to be the means of establishing the obligation and the third State expressly accepts that obligation in writing. A. General characteristics 903 Object and purpose 903 Customary status 903 B. Conditions to hold a State accountable for an obligation arising from a treaty to which it is not a party 905 The will of the parties to create a legal obligation 905 The consent of the third State 907 The need for consent 907 The reality of consent 911 C. The legal effects of the consent by the third party 914 The legal basis of the obligation of the third State 914 The scope of the obligation for the third State 918

Bibliography Braud, P., ‘Recherches sur l'Etat tiers en droit international public’, RGDIP, 1968, pp 17– 96 Cahier, Ph., ‘Le problème des effets des traités à l’égard des Etats tiers', RCADI, 1974III, vol. 143, pp 589–736 Chinkin, Ch., Third Parties in International Law (Oxford: Clarendon Press, 1993) Fitzmaurice, M., ‘Third Parties and the Law of Treaties’, Max Planck UNYB, 2002, pp 37–137 Geiser, H.-J., Les effets des accords conclus par les organisations internationales—Etude en droit international des Organisations Internationales à la lumière de la Convention de Vienne de 1969, thesis, Geneva, IUHEI, 1972 Gellermann, K.-P., Völkerrechtliche Verträge zu Lasten Dritter (Göttingen, Dissertations/Munich, Druckerei Charlotte Schön, 1963) Napoletano, G., ‘Some Remarks on Treaties and Third States under the Vienna Convention on the Law of Treaties’, IYBIL, 1977, pp 75–91 Prevost, J.-F., Les effets des traités conclus entre Etats à l'égard des tiers, thesis, Paris II, 1973 Roucounas, E. J., ‘Le traité et les Etats tiers (Quelques approches subjectives et objectives)’, RHDI, 1964, pp 299–365 Roxburgh, R. F., International Conventions and Third States (London: Longman, 1971) Rozakis, Ch., ‘Treaties and Third States: A Study in the Reinforcement of the Consensual Standards in International Law’, ZaöRV, 1975, pp 1–40 Tomuschat, Ch. ‘Obligations Arising for States without or against their Will’, RCADI, 1993-IV, vol. 241, pp 195–374

(p. 903) A. General characteristics Object and purpose 1. A third party cannot be bound against its will. Unquestionably, the drafters of Article 35 of the Vienna Convention intended to reassert this well-established principle of international law.1 As defined in Article 2, paragraph (1)(h) of the 1969 Vienna Convention,2 a third party is formally a ‘non-party’ to the treaty. Thus, the treaty itself cannot directly impose obligations on a third State.3 Nonetheless, it is not impossible that it accedes to treaty obligations, particularly by consenting to them. 2. Without ever abandoning the idea that a treaty only binds the States that are a party to it, the members of the ILC attempted to ‘lay down the general conditions under which a State may become subject to an obligation…under a treaty to which it is not a Party’.4 Thus, if the treaty binds only those States that are a party to it and if it is accepted that its effects concern, above all, the authors of the treaty obligation, it cannot be affirmed that any entity not a party to the treaty is completely foreign to it. Certain treaties can establish obligations for States which are formally third parties to it. In fact, a third party can have a particular interest in having certain provisions of a treaty apply to it, without wishing to become a party to the treaty.5 A State could in fact be practically unable to respect the treaty as a whole, while having the will specifically to submit to one of its provisions. In this sense, a treaty may affect a third State. However, the treaty is only capable of affecting the legal situation of a third party if it consents to the treaty.

Customary status 3. Article 34 of the Vienna Convention, which is nothing more than the reverse of the rule pacta sunt servanda, as well as an axiomatic foundation of international law for its importance for the security of treaty relations and the respect of the sovereignty of States, codifies the maxim res inter alios acta or pacta tertiis nec nocent nec prosunt.6 In this context, the rule stated in Article 35 must be regarded as a specific illustration of the maxim. To the extent that the source of the obligation continues to be consent, Article 35 cannot be considered as a true exception to the rule pacta tertiis.7 The principle of the relative effect of treaties is hardly called into question, as it is not so much through the effect of (p. 904) the treaty itself as through the effectiveness of consent that the legal status of the third State is affected. 4. Although Article 35 is an application of Article 34, it is more than a mere declension from it. The two provisions are complementary. As mentioned, the Article states the conditions under which an obligation arising from a treaty can be extended to a third State. In this respect, Special Rapporteur Waldock, recalling the principles of sovereignty and independence of States, warned the members of the ILC against the temptation to find inspiration in domestic contract law.8 Indeed, it could be tempting to transpose the classical exception of the stipulation for the benefit of another from private contract law into international law. However, in domestic law the mechanism does not require the consent of the third party beneficiary.9 On the contrary, it was advisable that in the process of codification, the Commission found its inspiration, above all, in the practice of States and international case law.10 For instance, there are no examples in international practice of a treaty creating true obligations for a third State without its consent. It is true that Mr Tabibi cited, during the debates at the Sixth Committee in 1964, the agreements concluded between the United Kingdom and Russia in 1840 to fix the Afghanistan borders, which ceded a section of Afghan territory to Punjab.11 But there is little doubt that these exceptional historical situations, where the signatory States of a treaty had the power to ensure compliance with its provisions affecting the third party, hardly continue to exist in practice.12 In this respect, the case law establishing the principle that ‘a treaty only creates law as between the States which are Parties to it’ is well established.13 In the judgment on the Free Zones of Upper Savoy and the District of Gex rendered on 7 June 1932, it was affirmed that the consent of the third State referred to by the provisions of the treaty was necessary for the provisions to take effect against it. In that case, France had intended to enforce Article 435(2) of the Treaty of Versailles against Switzerland which, according to France, had ended the free zones regime situated in French territory, from which Switzerland was a beneficiary by virtue of an 1815 treaty. Switzerland was not a party to the Treaty of Versailles. However, it had informed the French government that it was in a position to ‘acquiesce’ in Article 435, under certain circumstances. In this manner, the Court rejected the French contention by noting that Switzerland had not accepted the part of Article 435 which abolished the provisions concerning the free zones. Thus, the Court emphasized that ‘…in any case, Article 435 of the Treaty of Versailles is not binding upon Switzerland, who is not a Party to that Treaty, except to the extent to which that country accepted it…’.14

References 5. Therefore, the principle that the provisions of a treaty can only be extended to third parties with their consent flows directly from the principle of the relative effect of treaties. The ILC considers that this rule is ‘one of the bulwarks of the independence and equality (p. 905) of States’.15 From this perspective, Article 35 of the Vienna Convention undoubtedly codifies international custom. However, in deciding the legal mechanism through which the effects of a treaty may be extended to third parties, and by requiring, as it will be shown, that consent be given expressly and in writing, Article 35 goes beyond what is prescribed by practice on this matter, constituting an act of progressive development of the law.16

B. Conditions to hold a State accountable for an obligation arising from a treaty to which it is not a party 6. A third State may be bound by a treaty to which it is not a party if, first, the parties to the treaty had the will to create a legal obligation regarding that State and, secondly, the third State expressly consented to be bound by the obligations of the treaty.

The will of the parties to create a legal obligation 7. In his Third Report on the Law of Treaties, Sir Humphrey Waldock proposed to introduce, in what was then draft Article 62, a first condition to allow a treaty to create obligations for third parties. He drafted it in the following terms: 1. A State is bound by a provision of a treaty to which it is not a Party if— (a)  the Parties to the treaty intended that the provision in question should be the means of creating a legal obligation binding upon that particular State or a class of States to which it belongs.17 The parties to the treaty must have had the will to create a legal obligation with regard to that State. Indeed, the treaty continues to be the parties' instrument and consequently, they must be able to interpret it as they deem appropriate. Incidentally, it must be pointed out that Article 35, as it was adopted at the Conference of Vienna of 1969, only establishes the creation of obligations in respect of one State, even though Article 36 of the Vienna Convention contemplates the creation of rights for a third State or a group of States to which it belongs, or

for all States. It may be thought that the elimination of the terms ‘or a class of States’ in the final draft of Article 35 corresponds to purely formal considerations rather than to a substantive disagreement. In fact, as it appeared in the original draft by the Special Rapporteur, nothing prevents an obligation from being imposed on a class of States.18 8. Therefore, the intention of the parties is a decisive element to take into consideration to determine whether they intended to extend the effects of a treaty to a third State. However, the ILC did not examine the forms in which that intention should be expressed. To this end, it seems reasonable to refer to the principles of interpretation codified in Article 31 of the Vienna Convention. For example, the conduct of the parties or even the travaux préparatoires of the treaty can provide appropriate evidence of the will of the parties to create a legal obligation. In addition, the work of the Commission on the issue (p. 906) of treaties concluded between States and international organizations or between two or more international organizations can help to clarify the required conduct. In 1982 the ILC indeed had the opportunity to specify that: consent given in the abstract to the actual principle that such rights and obligations should be created is not enough; such consent must define the conditions and the effects of the obligations and rights thus created. Normally, the Parties to the treaty will define the regime for these obligations and rights in the treaty itself, but they may come to some other arrangement, in a separate agreement.19 This unusual care taken in specifying the modes in which consent must be given is related to the specificity of the situation of States that are members of an organization with regard to a treaty concluded between that international organization and a State or another international organization to which they are not formally parties. In that context, it is true that the interested parties often feel the need mutually to inform each other of their intentions. Requiring a duly qualified consent, as opposed to an abstract one, for all cases where the offer to enter into the agreement by the parties to the treaty is required before being able to consider whether the third party had the will to enter into legal relations, would permit establishing the existence of such consent. However, positive law does not require as much. 9. The Commission did not further examine the matter of the possible effects of the collective will of the parties before the third party gives its consent to obligations.20 With respect to the non-party, the expression of this collective will may be seen as a common unilateral act subject to meet, only at a later stage, the will of the third party to be bound. The act in question, formally a unilateral one, has the character of a true legal agreement, producing legal effects, independently of the acceptance of the third party concerned.21 These effects only exist in respect of the treaty to which they refer. For this reason, once the parties had unilaterally manifested their intention to bind the third party, the security of international engagements would prevent them from revoking their commitment.

References 10. This being the case, it must be pointed out that, as Mr Yasseen stated, ‘the Parties to a treaty could not create an obligation which was legally binding on a third State; they could only propose an obligation’.22 Their intention to impose an obligation on the third State is a necessary, but not sufficient, condition to creating such an obligation. The offer must be accepted by the third party to take full effect.23

(p. 907) The consent of the third State 11. The origin of any obligations binding the third party stems from its own will, and not from the treaty itself. In other words, the obligation only arises from the consent of the third party and only from the moment it is given.24 Doctrine, practice, and international case law recognize the need and the reality of that consent, ending a controversy which fed the work for the codification of the provision. Pursuant to Article 35, ‘an obligation arises for a third State from a provision of a treaty if…the third State expressly accepts that obligation in writing’.

The need for consent 12. Regardless of its object, a treaty cannot be imposed on a State which refuses to accept its effects.25 For example, although Article 19 of the Convention on psychotropic substances of 21 February 1971 provides that the international body for the control of drugs may request that the government of a ‘country’, including a non-party State, that is not executing the provisions of the Convention, take corrective measures, this cannot be considered an exception to Article 35.26 Indeed, although a third party may sometimes tolerate to submit to unfavourable measures arising from a treaty to which it is not a party, the third State is in no way under an obligation to submit to them.27 Consequently, the case of a treaty establishing clauses which would impose an obligation on certain States, that are not party to the treaty and that have not consented to it, to adopt a certain conduct with regard to States that are a party to the treaty, are excluded from the scope of application of Article 35. They could not be deemed exceptions to the stated principle. For example, the legal mechanisms concerning aggressor States are based on general rules outside the law of treaties. In addition, Article 75 of the Vienna Convention sets forth a general reservation covering any obligation that could arise from a treaty, for an aggressor State, regarding measures taken pursuant to the Charter of the United Nations.28 It is true (p. 908) that the adoption of that Article put an end to a controversy arising from the argument by certain members of the ILC that the obligations arising from treaties concluded between victorious powers could be legitimately imposed on aggressor States without their consent.29 But in all fairness, an objection to this claim had been made

that obligations imposed on aggressor States arose from neither the law of treaties nor the treaty itself,30 but from the law on State responsibility and from the Charter of the United Nations. Thus, it was not possible to deem it an exception to the stated rule.31 The Commission formulated a reservation in its commentary to draft Article 59 regarding the obligations of third parties, specifying that the provisions of treaties imposed on aggressor States did not fall within the scope of the principle stated in that Article.32 That formulation was favourably received by the governments of Hungary, the United States, the USSR, and Ukraine. In their comments, they nevertheless called for the inclusion of the reservation in the text of the Article itself. However, because it could not be considered an exception to the principle of the relative effect of treaties, it was deemed preferable not to prejudge the matter in the Article in question,33 or even in its Commentary.34 In 1966, based on the fact that the obligations of third parties, for cases concerning aggressor States, had been created outside the scope of the treaty, the Commission eventually decided in favour of adopting a different Article to cover such cases.

References 13. It is also undeniable that the measures taken by the Security Council of the United Nations to end a threat or a breach of the peace by a State ensue from the law of the United Nations and not from the law of treaties. The law of treaties intends to determine the rules relative to the content and scope of primary obligations arising from a treaty. It governs the life of the treaty as such. On the contrary, the measures taken by the Security Council, and more specifically the authorizations given to certain States to settle, through a treaty concluded between them, the situation of an aggressor State, or even the injunctions made against States to respect certain treaties, are mandatory for member States of the United Nations, pursuant to Articles 24, 25, and 103 of the Charter. The resolutions of the Security Council based on Chapter VII allow for an extension of the effects of a treaty beyond its parties. Therefore, it may be held that, in those cases, the provisions arising from the treaty which are imposed on a third party are not based on the treaty itself or even on the will of the third State, but on the decision of the Security Council taken for the maintenance of international peace and security which, in turn, gives the (p. 909) provisions their mandatory force.35 Thus, the two bodies of rules are not on the same footing. In consequence, as the obligations imposed on third States are deemed to ensue from international coercive measures, they cannot be reasonably considered as an exception to the rule stated in Article 35 of the Vienna Convention.

References 14. Equally exempt from the remit of Article 35 are treaties to which third States, or indeed the international community, having shown no sign of consent, are bound. Although certain treaties may have been concluded between a limited number of States, they may actually be intended to create rules applicable to all States. In other words, the effects of those treaties are indirectly felt beyond the circle of contracting parties. This can be particularly seen in the case of treaties demarcating maritime or terrestrial boundaries, treaties organizing a neutrality or demilitarization regime, treaties relative to the status of international waterways conferred on certain rivers or international channels, and treaties concerning human rights or the environment. Similarly, it is maintained that ‘objective’ situations are deemed to be binding on States not parties to the treaties establishing them.36 Third States do not accept the obligations set forth in those Conventions expressly and in writing. Also, concerning treaties relative to boundaries, third States waive the possibility of contesting certain claims advanced by the States which are party to the treaty. In consequence, the obligations arising from such treaties with respect to the third party do not ensue from Article 35.37 The obligation imposed on third States is not more than the general obligation to abstain from putting obstacles to the performance of the objectives of the Convention; that is the obligation to recognize the legal situations ensuing from the treaty based on general international law. From the legal viewpoint, the State cannot contest the treaty regime to which the contracting parties have agreed inter se. However, the third State is not bound by the provisions of a general interest treaty and the failure to respect it could not be qualified as a violation of such a treaty. Generally, as pointed out by P.-M. Dupuy, when he asserted that third parties rarely contest treaties relative to the demarcation of boundaries or the territorial status of certain spaces: les différentes raisons que l'on peut avancer pour expliquer de telles situations ne sont pas à trouver dans les vertus dont, par eux-mêmes, ces traités seraient pourvus. Les véritables causes font toutes, à des titres divers, intervenir le constat d'un assentiment des Etats non Parties au traité concerné.38 (p. 910) For the most part, such cases deal with the enforceability of the situation resulting from the treaty. It even appears that the possibility to impose a regime or situation to a third party arises in part from the exercise by a State of a competence which remains alien to the treaty. Article 8(2) of the Brussels Convention of 10 May 1952 relative to the Unification of Certain Rules to the Arrest of Sea-going Ships and Concerning Civil Jurisdiction in Matters of Collisions39 thus provides that: A ship flying the flag of a non-Contracting State may be arrested in the jurisdiction of any Contracting State in respect of any of the maritime claims enumerated in Article 1 or of any other claim for which the law of the Contracting State permits arrest. But this does not in any way derogate from the principle of the relative effect of treaties.

Concerning the performance of the treaty to which it is bound, a State may legally seize a vessel flying the flag of a State which has not ratified the said treaty, based on its internal legislation and in application of international rules relative to territorial jurisdiction.40 What is more, Sir Gerald Fitzmaurice's opinion regarding the Antarctic treaty may give support to the idea that: the fact that the third State is not, and cannot be under any direct obligation in the matter, not being a Party to the treaty concerned, does not of itself absolve the Parties to the treaty, so far as they are able, and can do so without any illegality, from endeavouring to secure that the third State conforms its conduct or action to the provisions of the treaty.41

References 15. In these various situations, third States are not under the obligation to perform the treaty as such, but only to act in good faith and not to impede the treaty's performance. Even more so, the obligatory nature of the provisions of such treaties in respect of non-party States could be inferred from the fact that they have become or codify customary norms. It could be said, as Fitzmauritce did, that the third party is only undertaking its obligations relative to the treaty.42 In any event, it is certain that ‘a “quasi-universal” treaty does not bind third States any more than a bilateral treaty would’.43 It is not necessary to examine this issue further. In addition, Waldock had taken care to specify, in his commentary to draft Article 62 of his Third Report, that, even if the issues could overlap in certain cases, the Article did not deal with the question of whether certain types of treaties had to be considered as having ‘objective’ effects.44 Incidentally, it will be mentioned that (p. 911) the issue of the enforceability against third States of territorial situations arising from a treaty had also been raised in dealing with State succession in respect of treaties. The ILC had considered that such a case could be explained by using the rules regarding State succession and not the law of treaties. For that reason, it set forth a reservation, embodied in Article 73 of the Vienna Convention, providing that the provisions of the Convention are without prejudice to any issue arising from a treaty regarding State succession.45 16. In sum, the explanation for the extension of the effects of a treaty to a third party without its consent falls outside the treaty itself. Thus, those particular situations do not arise from the scope of application of Article 35 and only emphasize the need to obtain the consent of third States in order to make the obligations of the treaty apply to them.

The reality of consent 17. From the examination of the work of the ILC and the analysis made by the doctrine, diverging views appear regarding the form in which the required consent must be given. Encouraged by Special Rapporteur Waldock, who had initially opted for a flexible formulation of the principle,46 Ago defended the idea that consent could be given in a way other than an official response to the parties to the treaty. According to him: …if the Commission retained only the word ‘expressly’, it would be denying forms of consent which were perfectly genuine and acceptable…if the neutralization of a third State was proposed in a treaty and that State established its neutrality by a national law, it clearly gave its consent, even if that consent was not expressed in an official reply to the Parties to the treaty.47 However, the great majority of members of the ILC opposed the idea that consent could be given implicitly.48 Admitting that a presumption of consent could suffice would have been contrary to the principle stated by the Commission, by which an agreement, to be valid, must be fully known to the parties.49 Eager to protect third parties against any obligation arising from a treaty to which consent had not been given, the Commission ultimately adopted in its draft Articles submitted to the General Assembly in 1966 the rule that consent had to be given expressly.50 18. However, there was a lot of criticism by certain States at the Conference of Vienna regarding a text that they considered to be too imprecise. For this reason, the Republic of Vietnam submitted an amendment providing that consent had to be given in writing. According to its delegate: (p. 912) The words ‘expressly accepts’ could be understood in the widest sense as embracing acceptance by solemn declaration or any other form of oral acceptance which did not provide the necessary safeguards. It was therefore desirable that third States, and particularly developing countries, should express their willingness to accept an international obligation in writing only.51 But although some opposed the proposed formulation because it would have been contrary to the fundamental principle of international customary law upon which the Convention is based and by virtue of which States may be bound by non written treaties, the amendment was adopted by 44 votes to 19, with 31 abstentions.52 19. In sum, while in the case of rights the consent by the State is simply presumed in accordance with Article 36 of the Vienna Convention, the acceptance of obligations must be expressly given and requires a certain level of formality to protect the sovereignty of States. This is another example, similar to the drafter's limitation of the scope of application of the Vienna Convention to written treaties, of States' opposition to any engagement lacking a certain level of clarity. In practice, consent is usually enshrined in a separate diplomatic document,53 such as a written note, even an informal one, addressed to the interested

governments. In the aforementioned Free Zones case, it was stated that the Federal Council note, which the Swiss government considered sufficient to acquiesce in Article 435 of the Treaty of Versailles, was annexed to it. Again, the travaux préparatoires of the 1986 Vienna Convention on the Law of Treaties between States and international organizations or between international organizations clarifies an interesting point regarding this issue. According to Special Rapporteur Reuter, Article 35 of the 1969 Vienna Convention could be considered as excluding ‘all cases where there was no formal communication, the written statement simply taking the form of minutes rather than of a document drawn up for the specific purpose of giving written assent’ and where, although consent would have been given in writing, it would have been given in a form alien to the procedure for concluding treaties.54

References 20. It is remarkable that, although in conformity with the non-formalist nature of international law, the law of treaties admits that the will of the parties may be expressed through a purely oral agreement,55 or at least an informal one,56 the legal mechanism to apply Article 35 is surrounded by such a level of formalism. According to Rozakis: (p. 913) By restricting the method of consent-giving under art. 35 only to the written form, the legislators of the Vienna Convention actually struck a serious blow to the informal agreements in international law.57 It may be added that the International Court of Justice (ICJ), in its judgment relative to the Continental Shelf of the North Sea of 20 February 1969, implicitly recognized the possibility that the consent of a third State to Article 6 of the 1958 Geneva Convention on the continental shelf could be given in a manner other than in written form.58 On this point, Article 35 goes beyond customary law.59 Furthermore, an examination of later practice tends to show that the acceptance by third parties can be evidenced in various ways. Hence, in its decision relative to the Blaskic case, rendered on 29 October 1997, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia pointed out that the passing by Switzerland in 1995, at that time not a member of the United Nations, of a law implementing the Statute of the Tribunal clearly implied, in conformity with Article 35, an acceptance of the obligation set forth in Article 29 of the Statute.60 Therefore, the Tribunal's position is similar to that which Ago defended earlier by the ILC.

References 21. But this observation leads to another point. The issue arises as to which is the required form of consent when rights and obligations are intimately correlated in the same treaty. P. Reuter emphasized this point when he said that ‘…si l'on prend les normes d'un traité comme un ensemble elles instituent très généralement à la fois des obligations et des droits’.61 Further, rights and obligations may be formulated in the same provision. In addition, it must be noted that a State accepting rights is often bound by correlative obligations regarding the conditions for the exercise of those rights (Art. 36(2) of the Convention).62 In his first reports, Sir Humphrey had drafted the provisions concerning obligations and rights in two separate Articles; he subsequently consolidated them in a single Article because they were often linked and could be interdependent,63 to end up distinguishing them again in the two provisions adopted at Vienna Conference. Although the majority of members of the ILC pointed out that the distinction was not always clear in practice,64 the agreement eventually reached within the Commission was that in such cases, the strict regime applicable to obligations would prevail so that the explicit consent (p. 914) in writing of the third party would be required.65 However, the Vienna Convention does not specify anything in this respect. 22. Certain members of the ILC had suggested third States to be informed of the treaty being adopted,66 and even proposed that the third State be offered the possibility of participating in the treaty negotiations.67 These proposals were not retained. No other mention is found, either in Article 35 or in the work of the Commission, regarding the time when the consent of the third party must be given.68 It is possible to argue that nothing prevents the third party from accepting obligations that are unknown in advance. Certain States, which are members of an international organization, may in fact manifest, by anticipation, their will to be bound by the obligations arising from a treaty concluded between that organization and other States or organizations to which they are not formally a party.69 Finally, it is not contested that the agreement of the third State to be bound by the provisions of a treaty to which it is not a party would be null if it were obtained in contradiction to general rules protecting consent, notably if it had been obtained under the threat of the use of force.70 23. Once the conditions described supra are fulfilled there is then little doubt that the treaty obligation arises in respect of the third party. In addition, the necessary formulation ‘an obligation arises’ was preferred over the expression ‘an obligation may arise’ which was used in earlier draft Articles.71

C. The legal effects of the consent by the third party 24. The 1969 Vienna Convention hardly explains the legal mechanism through which the effects of a treaty may be extended to a third party. However, the ILC discussed the issue of the legal basis upon which the rules under consideration rested. It is an agreement independent from the main treaty, in which the extension of the obligations results from the will of the third party.

The legal basis of the obligation of the third State 25. For the most part, both the doctrine and the members of the ILC agreed with the opinion of Special Rapporteur Waldock that ‘when these conditions are fulfilled there is, in effect, a second collateral agreement between the Parties to the treaty, on the one hand, and the third State on the other…’.72 This agreement is the result of the coincidence of, (p. 915) on the one hand, the proposal made by the parties to the third party—an offer which, although established in a treaty, constitutes for the third party a common unilateral act—and, on the other, the acceptance of the third party or parties. In this regard, Yasseen preferred to use the expression ‘complementary agreement’, ‘in order to make it clear that the first treaty was only the beginning and that the obligation did not exist until the complementary agreement had been made’.73 In any event, the stipulation only takes legal effect after having been accepted, which necessarily creates a new treaty obligation. It can certainly be considered, as Sir Humphrey did, that in the end ‘a provision of a treaty concluded between certain States is directly binding upon another State without the latter becoming a Party to the treaty itself’.74 But it is also true that the actual legal basis of the obligation of the State is found in the collateral agreement and not in the treaty to which it refers.75 If the third party is actually bound by having consented, its obligations are not of the same nature as those of the contracting parties. The third party does not necessarily consent to be bound by all the provisions of the treaty, and, in any event, it is not bound by the final clauses relative to denunciation and suspension. Even after having accepted certain obligations arising from the treaty, the State does not become a party to the main treaty and it continues to be a ‘third party’.76 26. Guarantee regimes, which are mentioned in Vattel's writings,77 present certain particularities regarding the elements described. The guarantor of a treaty can have the obligation to supervise, by any means, the correct performance of the guaranteed treaty by and for each of the parties; even promise to one of the parties, with a resulting obligation, the correct application of the initial treaty by the other party. Even if the guarantor is among the signatories of the main treaty and the parties designate it as their ‘partner’,78 the (p. 916) guarantor only witnesses the treaty. Its engagement towards one or more parties to the treaty is the object of an annexed declaration to the main treaty.79 Despite formal appearances, the guarantor is not a party to the treaty. However, as Ch. Chinkin points out, with regard to the peace treaty concluded between Israel and Egypt on 26 March 1979, guaranteed by the United States in the capacity of an administering power, ‘[a]lthough the United States remains a third party to the Peace Agreement it therefore has obligations and rights with respect to its performance’.80 Similarly, the scope of the guarantee given in 1995 by Croatia and the Czech Republic to the Republic of Bosnia-Herzegovina, the Republic Srpska, and the Federation of Bosnia-Herzegovina was that of supervising the correct implementation of the Dayton General Agreement and its Annexes.81 The secondary obligation accepted by the guarantor and the parties, both implied by and inseparable from the main treaty, is therefore of a specific nature and only consists in supervising the correct performance of the treaty by the parties in order to preserve its object and purpose. Within the framework of guarantees where a guarantor assures any failure to perform by the third party,82 such a guarantor intends even to be responsible for any damages which could result from the failure to perform the agreement. In such cases, despite the close links between the guarantor and the main treaty, the guarantor remains a third party. Indeed, if the latter failed in its effort to bring the other State, which is a party to the treaty, to execute it appropriately, it could not be held that it would fall upon the guarantor to perform the obligations arising from the main treaty. In fact, it can hardly be imagined that a guarantor of a demilitarization treaty would itself execute the provisions of the treaty in question, if the parties failed to do so. This would make the guarantor a substitute to the parties, which is not satisfactory from the viewpoint of the States' sovereignty, as the parties intend to remain in control of their treaty.83 Even in these specific cases, the consent of the State remains the only legal basis of the obligation.

References 27. In a general way, the collateral obligation accepted by the third party and the parties constitutes in reality an incidental treaty inseparable from the main treaty and together they form a complex agreement.84 In fact, all or part of the text of the main treaty is reproduced in the collateral agreement, to which the third party becomes a party.85 As such, the interconnection of the agreements may be based on general rules of interpretation. If the agreement of the third party is concomitant to the formation of the main treaty, it may be useful to invoke, for the purpose of its interpretation, the context of the treaty including, pursuant to sub-paragraph (b) of Article 31(2), ‘any instrument which was made by one or more Parties in connection with the conclusion of the treaty and accepted by the other Parties as an instrument related to the treaty’. Similarly, the (p. 917) collateral agreement could be opportunely considered as ‘subsequent practice’, within the meaning of sub-paragraph (b) of Article 31(3) of the Convention, to clarify the sense of the initial treaty. 28. In addition, Article 37(1) of the Vienna Convention relative to the revocation or modification of obligations arising for a third State tends to support the proposition that an agreement independent from the main treaty actually exists. Although the revocation or modification of the provision from which the obligations arise only regards those States who are a party to the initial treaty, the revocation or modification of the obligations themselves requires in effect the consent of all the parties of the treaty and of the third State.86 One may agree with Mr de Luna that if ‘the obligation of a third State derived not from the initial treaty, but from the “collateral agreement”, then the obligation was not revocable’ by the parties to the treaty alone.87 The obligations under consideration can only come to an end for the reasons and according to the procedures established in the law of treaties regarding 88

termination.88 29. It should be emphasized that in 1964, draft Article 62(b) entitled ‘abrogation or amendment of the provisions concerning the rights and obligations of third States’, proposed by the Drafting Committee, treated in the same manner the abrogation and modification of the provisions regarding the rights and obligations of a third State. It provided that those provisions could be neither terminated nor modified without the consent of the third State, unless it could be inferred from the treaty that the intention of the parties was that the obligation was revocable.89 Taking into account the specificity of the legal basis of obligations, the issue is whether their termination or modification should be governed by specific rules. In their comments relative to the draft Article, certain States, among them the United Kingdom and the Netherlands, argued that the total or partial withdrawal of an obligation imposed on a third State could be legitimately made without the assent of that third party, unless it appeared that the intention of the parties had been to make that provision irrevocable.90 According to those States, any other proposition would have led to an excessive protection of the position of the third party.91 Special Rapporteur Waldock considered that the parties to the initial treaty should be allowed to unilaterally end the obligation by mere notification as, in that case, ‘the Parties [would be] renouncing in whole or in part their right to call upon the third State for the performance of its obligation’. The Special Rapporteur also pointed out that: (p. 918) it hardly [seemed] consistent with principle to make their action subject to the consent of the State in whose favour the renunciation [had been] made. Simple notice to the third State would appear to be fully sufficient.92 The modification of the scope of the obligation or the conditions that the third State had to fulfil to be discharged from that obligation required, however, the third party's consent. Nevertheless, the formulation of the rule was criticized by some members of the ILC and draft Article 33, proposed by the Commission in 1966, eventually established a presumption of irrevocability of obligations arising from a treaty.93 Therefore, the obligations of the third State can only be revoked or modified by the mutual consent of the parties and the third State, unless it were established that they had agreed otherwise.94 As Reuter pointed out, by doing this ‘l'accord collatéral est consolidé comme un traité indépendant’.95 30. From these different considerations, it appears that the collateral agreement complies with the definition of a ‘treaty’ concluded between States and governed by international law, as established in Article 2(1)(a) of the Vienna Convention. Thus, the agreement is governed by all rules applicable to treaties. Some even suggest that in principle it should be subject to the obligation to be registered under Article 102 of the Charter.96 However, the practice on this point is almost non-existent.97

References

The scope of the obligation for the third State 31. The third party is only bound by the obligation arising from the treaty in conformity with the reservations and obligations which it may have stated when it accepted it. For example, in the aforementioned Free Zones case, the Swiss Federal Council addressed a note to the French government in which it specified the scope of its acceptance of Article 435 of the Treaty of Versailles. Particularly, it stated that it did not want it to be concluded, from its acceptance of the Article, that it supported the abrogation of the regime of free zones. The ICJ therefore affirmed with regard to the note that ‘[i]t is by that instrument, and by it alone, that Switzerland has acquiesced in the provisions of Article 435…under certain conditions and reservations, set out in the said note’.98 Similarly, after the nationalization of the Suez Canal in July of 1956, the Egyptian government expressly accepted and reaffirmed the obligations regarding the freedom of circulation in the canal arising from the 1888 Convention of Constantinople, even though it was not a party to it.99 The will of the Egyptian government to become legally bound (p. 919) also transpires from the note from the Ministry of Foreign Affairs transmitted to the Secretary-General of the United Nations, which was worded as follows: ‘[t]his declaration, with the obligations therein, constitutes an international instrument, and will be deposited and registered with the Secretariat of the United Nations’.100 This declaration is actually among the ‘treaties and international agreements registered with the Secretariat’.101 Since that time, the Egyptian government has been criticized for subjecting navigation through the Suez Canal to constraints which are prohibited by the Convention of Constantinople, particularly with regard to Israel.

References 32. Finally, the third party is only bound, in principle, in respect of the parties which intended to impose obligations on it. It is true that it is not clear whether the separate agreement arising from the interested parties must be concluded with all the parties or whether it can be concluded with one or more of them only.102 From this, should it be established that the offer by the parties as a whole would only be the offer of a ‘collection of individual wills’,103 which would generate a bundle of bilateral relations between each of the parties to the initial treaty and the consenting third party? Or, on the contrary, by reason of convenience and unity, should the parties to the treaty as a whole be regarded as a ‘sole party’, creating the new legal relationship and to which the third party would become bound? The Vienna Convention does not provide an answer to these questions.104 In the context of the inter-dependent obligations of the treaty,105 any party to the initial treaty would have the right to require from the third party compliance with the obligations to which it implicitly consented in respect of the States parties. But generally, wisdom dictates the respect of the sovereign will of the contracting 106

parties to the collateral agreement.106 33. Judging from the lack of precedent, Article 35 has not lived up to the ambition of the drafters of the Vienna Convention and the wealth of discussions that led up to it. The extended enforceability of treaty obligations is usually justified by a cause external to the treaty itself,107 and it is reinforced by the erga omnes or customary character of the norm (p. 920) whose influence surpasses, by definition, the conventional sphere.108 This reluctance on the part of States to bind themselves partially, without having to become parties to a treaty, results in part from the fact that there are many important aspects of this issue which are not dealt with by Article 35 of the Vienna Convention in its current form. *

CAROLINE LALY-CHEVALIER

References

Footnotes: 1 On the principle pacta tertiis nec nocent nec prosunt, see Lord A. McNair, The Law of Treaties (Oxford: Clarendon Press, 1961), p 309. 2 According to sub-para. (h), ‘“third State” means a State not a Party to the treaty’. This subparagraph must be read in conjunction with sub-para. (g): ‘“Party” means a State which has consented to be bound by the treaty and for which the treaty is in force’. The 1986 Vienna Convention takes up these provisions, adapting them to international organizations. 3 Sir G. Fitzmaurice, Fifth Report on the Law of Treaties, A/CN.4/130, YILC, 1960, vol. II, p 68. 4 Sir H. Waldock, Third Report on the Law of Treaties, A/CN.4/167, YILC, 1964, vol. II, p 17. The term ‘obligation’ shall be understood as ‘a subjective situation that is the counterpart of a right in the objective sense’ (own translation), J. Salmon (ed.), Dictionnaire de droit international public (Brussels: Bruylant/AUF, 2001), p 765; see also the commentary on Art. 34 of the Vienna Convention, supra. 5 Intervention by Mr Rosenne during the discussions of the 734th meeting of the ILC, YILC, 1964, vol. I, p 73; YILC, 1964, vol. I, 735th meeting, p 81. 6 YILC, 1964, vol. I, 734th meeting, p 70; along the same lines, intervention by Mr Tsuruoka, YILC, 1964, vol. I, 735th meeting, p 81. J. Barberis considers it a jus cogens norm: J. Barberis, ‘Le concept de “traité international” et ses limites’, AFDI, 1984, p 265. 7 Intervention by Mr Waldock at the 735th meeting, YILC, 1964, vol. I, p 80. See also the interventions by Mr Rosenne (YILC, 1964, vol. I, 735th meeting, p 80) and Jiménez de Aréchaga (YILC, 1964, vol. I, 734th meeting, p 77). 8 Sir H. Waldock, Third Report on the Law of Treaties, A/CN.4/167, YILC, 1964, vol. II, Part One, p 15. 9 Within the framework of a stipulation made for the benefit of another, the beneficiary automatically becomes the holder of a right without having agreed to anything. 10 See, on this issue, R. F. Roxburgh, International Conventions and Third States (London: Longman, 1971), p 31. 11 Intervention by Mr Tabibi, YILC, 1964, vol. I, 735th meeting, p 79. 12 Intervention by Mr Bartoš, YILC, 1964, vol. I, 734th meeting, p 72. 13 Judgment of 25 May 1926, Certain German Interests in Polish Upper Silesia case, PCIJ, Series A, no. 7, p 29; Island of Palmas, RIAA, vol. II, p 850; for other cases, see the commentary on Art. 34. 14 PCIJ, Series A/B, no. 46, p 141. In addition, the Court affirmed that although Switzerland was no longer a party to the 1815 treaty, it could invoke the provisions concerned because it had accepted them expressly (ibid, p 96). 15 Report of the ILC covering the work of its 16th session, A/5809, YILC, 1964, vol. II, p 189. 16 Along the same lines, Ch. Rozakis, ‘Treaties and Third States: A Study in the Reinforcement of the Consensual Standards in International Law’, ZaöRV, 1975, p 25; Sir R. Jennings and Sir A. Watts, Oppenheim's International Law, vol. I, Peace (9th edn, Harlow: Longman, 1992), p 1262, para. 626. 17 Sir H. Waldock, Third Report on the Law of Treaties, A/CN.4/167, YILC, 1964, vol. II, Part One, p 17. 18 This point was not included in draft Art. 59, adopted by the Commission in 1964, Report of the ILC covering the work of its 16th session, A/5809, YILC, 1964, vol. II, Part Two, p 190. See P. Reuter, Introduction au droit des traités (3rd edn, Paris: PUF, 1995), p 94. 19 Commentary on draft Art. 36bis dealing with the ‘Obligations and rights arising for States members of an international organization from a treaty to which it is a Party’, Report of the ILC on the work of its 34th session, A/37/10, YILC, 1982, vol. II, Part Two, p 47. 20 The beginning of a contractual relation after the third party has given its consent results in the loss of specificity of the unilateral collective act; contra, G. Venturini, ‘La portée et les effets juridiques des attitudes et des actes unilatéraux des Etats’, RCADI, 1964-II, vol. 112, p 443. 21 See Nuclear Tests (Australia/France), Judgment of 20 December 1974, ICJ Reports 1974, p 267, para. 43:

It is well recognized that declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations.…When it is the intention of the State making the declaration that it should become bound according to its terms, that intention confers on the declaration the character of a legal undertaking, the State being thenceforth legally required to follow a course of conduct consistent with the declaration. 22 Intervention by Mr Yasseen, YILC, 1964, vol. I, 734th meeting, p 74, emphasis added. 23 See J. Salmon, ‘Les accords non formalisés ou “solo consensu”’, AFDI, 1999, p 14; Ph. Cahier, ‘Le problème des effets des traités à l’égard des Etats tiers', RCADI, 1974-III, vol. 143, p 646; J. Verhoeven, Droit international public (Brussels: Larcier, 2000), p 416. In fact, certain members of the ILC had wanted to invert the order in which the conditions would be presented to insist on the importance of the consent by the third party. 24 This is why the French translation of the title of the draft Article proposed by the Special Rapporteur, (‘Traités créant des obligations…’ (literally, ‘treaties creating obligations’)) which only reflected in an imperfect manner the expression ‘Treaties providing for obligations’, had been criticized (Intervention by Mr Waldock, YILC, 1964, vol. I, 734th meeting, p 75). It had never been envisaged before that a treaty could create in itself obligations for third States. 25 J. Combacau, Le droit des traités (Paris: PUF, 1991), p 94; P. Reuter, supra n 18, p 116; J. Verhoeven, supra n 23, p 417; Ph. Cahier, supra n 23, p 655; M. Sørensen, ‘Principes de droit international public. Cours général’, RCADI, 1960-III, vol. 101, p 77; Sir Gerald Fitzmaurice, Fifth Report on the Law of Treaties, A/CN.4/130, YILC, 1960, vol. II, p 91: ‘[A treaty] never as such directly binds [States] non-Parties…’ (original emphasis). In this sense, see, among others, the International Commission of the River Oder case, in which the Court refused to consider that the 1921 Barcelona Convention concerning the regime of navigable waterways of national concern was binding upon Poland, which had signed but not ratified it (PCIJ, Series A, no. 23, pp 19–22). 26 UNTS, vol. 1019, p 190. 27 Along the same lines, Ph. Cahier, supra n 23, p 654; contra, C. H. Vignes, ‘La Convention sur les substances psychotropes’, AFDI, 1971, p 654. 28 Article 75 provides that: The provisions of the present Convention are without prejudice to any obligation in relation to a treaty which may arise for an aggressor-State in consequence of measures taken in conformity with the Charter of the United Nations with reference to that State's aggression. See the proposal by Mr Reuter, YILC, 1966, vol. I, 853rd meeting, p 76. 29 Interventions by M. Lachs, YILC, 1964, vol. I, 734th meeting, p 76 and by M. Tounkine, YILC, 1964, vol. I, 734th meeting, p 76 and 735th meeting, p 84, as well as YILC, 1966, vol. I, 853rd meeting, p 73. 30 See the intervention by Mr Yasseen, YILC, 1966, vol. I, 852nd meeting, p 69: ‘…the case of a treaty imposing an obligation on an aggressor-State was not an exception to the rule stated in Article 59, since the source of that obligation was not the treaty itself’. 31 Interventions by Mr Ago, YILC, 1966, vol. I, 853rd meeting, p 78; de Luna, ibid, p 78. 32 Report of the ILC covering the work of its 16th session, A/5809, YILC, 1964, vol. II, Part Two, p 190. 33 Sir H. Waldock however proposed that if the ILC deemed such a reservation appropriate, a second paragraph should be added to the draft Article with the following wording: Nothing in the present Article…precludes a provision in a treaty from being binding on an aggressor-State, not a Party to the treaty, without its consent if such provision is imposed on it in accordance with the law of State responsibility and with the principles of the Charter of the United Nations. (Sixth Report on the Law of Treaties, A/CN.4/186, YILC, 1966, vol. II, p 74) See also the interventions by Mr de Luna, YILC, 1966, vol. I, 852nd meeting, p 67, and Mr Castrén, ibid, p 67. 34 Intervention by Mr Ago, YILC, 1964, vol. I, 735th meeting, p 85. 35 It must be noted that, through its Res. 1373 (2001) of 28 September 2001, the Security Council extended to non-party States the effects of the International Convention for the Suppression of the Financing of Terrorism, of 9 December 1999. However, this is a subsitution of a legal basis. 36 More generally, on treaties creating objective regimes, by Sir H. Waldock, Third Report on the Law of Treaties, A/CN.4/167, YILC, 1964, vol. II, p 25. Cf the Aaland Islands issue, where the Council of the League of Nations asked the International Commission of Jurists to render an advisory opinion, JOSdN, suppl. no. 3 (October 1920), pp 3–19, esp. p 18: The recognition of any State must always be subject to the reservation that the State recognised will respect the obligation imposed upon it either by general International Law or by definite international settlements relating to its territory. (V. Coussirat-Coustere and P.-M. Eisemann, Repertory of International Arbitral Jurisprudence, vol. II, 1919–1945 (Dordrecht: Martinus Nijhoff, 1989), p 17, fn 2010.) 37 It is true that certain authors deem that those situations are exceptions to the relativity of

treaties: see eg Ch. Rousseau, Droit international public, vol. 1 (Paris: Sirey, 1970), p 192; Lord A. McNair, supra n 1, p 310; J. A. Barberis, supra n 6, p 265. 38 ‘the different reasons that can be advanced to explain such situations cannot be found in the virtues that, by themselves, these treaties would provide. All the true causes include, each for different reasons, the assent of the States not Parties to the treaty concerned (own translation, P.-M. Dupuy, Droit international public (Paris: Dalloz, 2000), p 283, original emphasis). 39 UNTS, vol. 439, p 202. 40 ContraJ.-F. Lachaume, ‘Chronique de jurisprudence française’, AFDI, 1970, p 894, which deems it an exception to the relative effect of international agreements. 41 Sir G. Fitzmaurice, Fifth Report on the Law of Treaties, A/CN.4/130, YILC, 1960, vol. II, p 83. See Art. X, para. 1 of the 1981 Convention on the Conservation of Antarctic Marine Living Resources (UNTS, vol. 402, p 81): ‘The Commission shall draw the attention of any State which is not a Party to this Convention to any activity undertaken by its nationals or vessels which, in the opinion of the Commission, affects the implementation of the objective of this Convention’; see also Art. XXII, para. 1 of the same Convention. Similarly, it is in this sense that one can interpret common Art. 1 of the 1949 Geneva Conventions (UNTS, vol. 75), pursuant to which the high contracting parties must not only undertake to respect but also ‘to ensure respect’ for the Conventions. 42 Sir G. Fitzmaurice, Fifth Report on the Law of Treaties, A/CN.4/130, YILC, 1960, vol. II, p 82. 43 P. Reuter, supra n 18, p 100 (166). See also on this matter, H. Neuhold, ‘The 1968 Session of the United Nations Conference on the Law of Treaties’, ÖZöRV, 1969, p 77; M. Fitzmaurice, ‘Third Parties and the Law of Treaties’, Max Planck UNYB, 2002, p 66. 44 Sir H. Waldock, Third Report on the Law of Treaties, A/CN.4/167, YILC, 1964, vol. II, p 17; Sir H. Waldock, Sixth Report on the Law of Treaties, A/CN.4/186), YILC, 1966, vol. II, p 72. Draft Art. 63, which specifically dealt with treaties creating objective regimes, exclusively based the effect of these treaties on the consent of third States, YILC, 1964, vol. II, pp 24 ff. 45 See on this issue Sir H. Waldock, Second Report on Succession in Respect of Treaties, A/CN.4/214, YILC, 1969, vol. II, pp 54–62; P. Reuter, supra n 18, p 103 and the commentary on Art. 73 infra. 46 Intervention by Mr Waldock, YILC, 1964, vol. I, 734th meeting, p 71 (5): ‘…the third State must accept or tacitly assent to…’; see similarly his intervention in YILC, 1964, vol. I, 735th meeting, p 83. 47 Intervention by M. Ago, YILC, 1964, vol. I, 734th meeting, p 77. 48 Interventions at the 734th session of the ILC by Messrs Paredes, YILC, 1964, vol. I, p 73; Yasseen, YILC, 1964, vol. I, p 74; de Luna, YILC, 1964, vol. I, p 76; Tounkine, YILC, 1964, vol. I, p 76; Briggs, YILC, 1964, vol. I, p 77; Pal, YILC, 1964, vol. I, p 78. 49 See, however, the more nuanced opinion expressed by Mr Castrén, who deemed that if the Commission admitted that implicit consent could be sufficient, ‘the consent must be so clearly implied that there could be no doubt as to the State's intention…’, YILC, 1964, vol. I, 734th meeting, p 76. 50 Draft Art. 31, which was ultimately adopted by the ILC provided that ‘An obligation arises for a State from a provision of a treaty to which it is not a Party if the Parties intend the provision to be a means of establishing the obligation and the third State has expressly accepted that obligation’ (Report of the ILC on the work of its 18th session, YILC, 1966, vol. II, Part Two, p 247). The Article was adopted with the same wording by the Drafting Committee on 10 May 1968, A/CONF.39/C.1/9. 51 Summary Records, 2nd session, 14th meeting, p 59. The Vietnamese delegation made a proposal to add the terms ‘in writing’ after the word ‘expressly’, A/CONF.39/L.25. 52 14th plenary meeting, A/CONF.39/11/Add.1, p 63. 53 Sir G. Fitzmaurice, Fifth Report on the Law of Treaties, A/CN.4/130, YILC, 1960, vol. II, p 86. 54 P. Reuter, Tenth Report on the Question of Treaties concluded between States and International Organizations or between two or more International Organizations, A/CN.4/341, YILC, 1981, vol. II, Part One, p 70. 55 Lord A. McNair, supra n 1, pp 10 ff; P. Reuter, supra n 18, p 27: …la volonté réelle sur laquelle les deux Parties ont pu s'accorder est la volonté extériorisée. Cette extériorisation a lieu de diverses manières, dont la plus courante et la plus sûre est d'être écrite. Elle peut aussi s'exprimer par une déclaration orale, c'est à dire par un comportement verbal. (…the truthful will on which both Parties may have agreed is their express will. This exteriorization may take place in several ways, of which the most common and reliable it to be in writing. It can also be expressed by means of an oral declaration, that is, through a verbal action.) (own translation) M. Virally, ‘Sur la notion d'accord’ in Le droit international en devenir: essais écrits au fil des ans (Paris: PUF, 1990), pp 135–45, esp. p 144. See also Art. 3 of the Vienna Convention: ‘The fact that the present Convention does not apply…to international agreements not in a written form, shall not affect: (a) the legal force of such agreements…’ and the commentary on this provision, supra.

56 J. Salmon, supra n 23, p 20; M. Bastid, Les traités dans la vie internationale, conclusion et effets (Paris: Economica, 1985), p 115; M. Sur, ‘Quelques observations sur les normes juridiques internationales’, RGDIP, 1985, p 924. 57 Ch. Rozakis, supra n 16, p 13. 58 North Sea Continental Shelf case, Judgment of 20 February 1969, ICJ Reports 1969, p 43. 59 It must be stated that the ILC, in its draft Articles on State succession in respect of treaties (which became the Vienna Convention of 23 August 1978), explained that a unilateral declaration of a newly independent State could have the effect of making all the norms of a treaty to which it was not a party apply to it. The explanation used by the ILC was based on the same mechanisms as those used for Art. 35 of the 1969 Vienna Convention, specifying that ‘The obligation can be accepted expressly but can also result from the conduct of a State Party to the treaty’. 60 Judgment on the request of the Republic of Croatia for review of the decision of Trial Chamber II of 18 July 1997, Judgment of 29 October 1997, IT-95–14-AR, 108bis, para 26. 61 ‘…if the norms of a treaty are taken as a whole, they very generally set forth at the same time both rights and obligations’ (author's translation), P. Reuter, ‘Du consentement des tiers aux normes d'un traité’ in Realism in Law-Making: Essays in International Law in Honour of Willem Riphagen (Dordrecht: Martinus Nijhoff, 1986), p 156. See also on this issue, I. Sinclair, The Vienna Convention on the Law of Treaties (Manchester: Manchester University Press, 1984), p 103. 62 To this end, Jean Salmon speaks of a ‘presumed’ acceptance of ‘obligations’ (cf J. Salmon, supra n 23, p 4). Nevertheless, this is a different problem; see on this matter, commentary on Art. 36, paras 2–24. 63 Intervention by Waldock, YILC, 1964, vol. I, 738th meeting, p 102. 64 Interventions during the 735th session of the ILC by Mr Rosenne (YILC, 1964, vol. I, p 81); Ago (ibid, p 85); intervention by Mr Lachs (ibid, 736th meeting, p 88). 65 See the interventions by Mr Lachs, YILC, 1964, vol. I, 736th meeting, pp 88 and 92. 66 Intervention by Mr Tabibi, YILC, 1964, vol. I, 735th meeting, p 79. 67 Intervention by Mr Rosenne, YILC, 1964, vol. I, 735th meeting, p 81; nonetheless, see the observation by Mr Waldock, ibid, p 83. 68 See on this matter, the criticism by the United States, Sixth Report on the Law of Treaties, A/CN.4/186, by Sir Humphrey Waldock, YILC, 1966, vol. II, p 73. 69 Cf infra, commentary on Art. 35 of the 1986 Vienna Convention. 70 Sir H. Waldock, Sixth Report on the Law of Treaties, A/CN.4/186, YILC, 1966, vol. II, p 73. 71 Ibid, p 74; see also the interventions during the 852nd meeting by Messrs Castrén (YILC, 1966, vol. I, p 67); Yasseen (ibid, p 69); and Reuter (ibid, p 69). 72 Sir H. Waldock, Third Report on the Law of Treaties, A/CN.4/167, YILC, 1964, vol. II, p 18; in his Fifth Report, Fitzmaurice spoke of a ‘separate agreement’ from which the effects of the treaty could arise (A/CN.4/130), YILC, 1960, vol. II, p 82. See J. Combacau and M. Sur, Droit international public (6th edn, Paris: Montchrestien, 2004), p 153; contra Ch. Chinkin, Third Parties in International Law (Oxford: Clarendon Press, 1993), p 33: ‘…since the Convention does not specify that the acceptance be directed towards the treaty Parties it might not be possible to regard it as a collateral agreement’. 73 Intervention by M. Yasseen, YILC, 1964, vol. I, 735th meeting, p 83; see also, during the 735th meeting, the criticism by Mr Amado, YILC, 1964, vol. I, p 83 and by Mr de Luna, ibid, p 84. 74 Sir H. Waldock, Third Report on the Law of Treaties, A/CN.4/167, YILC, 1964, vol. II, p 18. For this reason, Waldock deemed it an exception to the pacta tertiis rule (Report of the ILC covering the work of its 16th session, A/5809, YILC, 1964, vol. II, p 190). 75 Sir H. Waldock, Third Report on the Law of Treaties, A/CN.4/167, YILC, 1964, vol. II, p 18; see also the intervention by Mr de Luna, YILC, 1966, vol. I, 853rd meeting, p 75. 76 See on this issue, Sir Gerald Fitzmaurice, Fifth Report on the Law of Treaties, A/CN.4/130, YILC, 1960, vol. II, p 86; P. Reuter, supra n 61, p 155; A. Aust, Modern Treaty Law and Practice (2nd edn, Cambridge: Cambridge University Press, 2007), p 257; J. Combacau and M. Sur, supra n 72, p 153. Therefore, we do not share the opinion that the 1969 Vienna Convention allows for the extention of the effects of a treaty ‘by eliminating its nature as a third party’ (D. Alland, Droit international public (Paris: PUF, 2000), p 238). See also the proposition held by G. Palmisano, concerning the acceptance by the third party of the ICC's jurisdiction (Art. 12, para. 3 of the Rome Statute): ‘Once a State has accepted the Court's jurisdiction over a specific case, this State should no longer be considered a third State, as its position becomes equivalent to that of a State Party to the Statute’ (‘The International Criminal Court and Third States’ in F. Lattanzi and W. A. Schabas (eds), Essays on the Rome Statute of the ICC (Rome: Editrice il Sirente, 1999), pp 393–4). 77 ‘Convinced by unhappy experience, that the faith of treaties, sacred and inviolable as it ought to be, does not always afford a sufficient assurance that they shall be punctually observed,— mankind have sought for securities against perfidy,—for methods, who[s]e efficacy should not depend on the good faith of the contracting Parties. A guaranty is one of these means. When those who make a treaty of peace, or any other treaty, are not perfectly easy with respect to its observance, they require the guarantee of a powerful sovereign. The guarantee promises to maintain the conditions of the treaty and to cause it to be observed.…The guaranty may be

promised equally to all the contracting Parties, to some of them, or even to one alone: but it is commonly promised to all in general.’ (E. de Vattel, The law of nations, or, principles of the law of nature, applied to the conduct and affairs of nations and sovereigns. From the French of Monsieur de Vattel (London: 1797; Philadelphia: 1863), Book II, ch. XVI, para 235) 78 Notably, that is the case of the Egyptian-Israeli Peace Treaty of 26 March 1979. 79 Memorandum of 26 March 1979 relative to the US engagement towards Israel, ILM, 1979, p 530. 80 Ch. Chinkin, supra n 72, p 46. 81 The signature of the Dayton Agreement by the European Union, the United States, the Russian Federation, Germany, the United Kingdom, and France was more of a political than legal nature, as those States had not agreed to be bound by the obligation to assure the respect of the treaty at issue. On this issue, see P. Gaeta, ‘The Dayton Agreements and International Law’, EJIL, 1996, p 154. 82 Article 1120 of the French Civil Code states that ‘…on peut se porter fort pour un tiers, en promettant le fait de celui-ci…’ (One may…stand in guarantee for a third party, by promising his acting…). 83 See mainly, Fontes juris gentium, 1871–8, Part 1, p 267. 84 On this issue, cf P. Reuter, who defines complex agreements as ‘agreements (which may not bind the same Parties) which to a certain degree that can be very high, are in conformity with each other, with the legal consequences which may ensue from the interpretation of those agreements until they lapse’ (Introduction au droit des traités, supra n 18, p 97). 85 Sir G. Fitzmaurice, Fifth Report on the Law of Treaties, A/CN.4/130, YILC, 1960, vol. II, pp 74, 86. 86 Article 37, para. 1 reads as follows: ‘When an obligation has arisen for a third State in conformity with Article 35, the obligation may be revoked or modified only with the consent of the Parties to the treaty and of the third State, unless it is established that they had otherwise agreed’. According to Malgosia Fitzmaurice, the wording of this provision leaves unclear whether it exclusively covers revocation or modification of obligations of third States of whether it also concerns the original treaty in which they are included (M. Fitzmaurice, supra n 43, p 57). 87 Intervention by Mr de Luna, YILC, 1964, vol. I, 734th meeting, p 75. 88 Intervention by Mr Rosenne, YILC, 1964, vol. I, 735th meeting, p 81: ‘…if a third State consented to accept obligations, it was fully entitled to all the rights specified in the provisions of Part II, more particularly those relating to termination’; see also the intervention by M. Jiménez de Aréchaga, YILC, 1966, vol. I, 868th meeting, p 194. 89 YILC, 1964, vol. I, 868th meeting, p 190. 90 Sir H. Waldock, Sixth Report on the Law of Treaties, A/CN.4/186, YILC, 1966, vol. II, pp 77–8. 91 Comment by the United Kingdom, Sixth Report on the Law of Treaties, A/CN.4/186, by Sir Humphrey Waldock, YILC, 1966, vol. II, p 77. 92 Sir Humphrey Waldock, Sixth Report on the Law of Treaties, A/CN.4/186, YILC, 1966, vol. II, p 78. See also A. Aust, supra n 76, p 260. 93 Report of the Commission on the Second Part of its Eighteenth Session, A/6309/Rev.1, YILC, 1966, vol. II, p 250; cf para. 156 of the Restatement of Foreign Relations Law of the United States of the American Law Institute. 94 We must add that, in its commentary on draft Art. 33, the ILC was careful to specify that the revocation or modification would not affect the initial treaty giving rise to the obligation, YILC, 1966, vol. II, p 250. 95 P. Reuter, supra n 18, p 97; P. Reuter, supra n 634, p 160, (‘the collateral agreement is deemed an independent treaty’, author's translation); Sir R. Jennings and Sir A. Watts, supra n 16, p 1263, para. 626. 96 Ch. Chinkin, supra n 75, p 41. 97 eg we have noted the registration of the declaration by the Egyptian government regarding the Suez Canal and the arrangements concerning its administration of 24 April 1957 (UNTS, vol. 265, no. 3821). 98 Supra n 14. 99 The Convention of Constantinople of 29 October 1888 was concluded between Germany, Austro-Hungary, Spain, the United Kingdom, France, Italy, the Netherlands, Russia, and Turkey (CTS, vol. 171, p 241). See on this issue, J. Dehaussy, ‘La déclaration égyptienne de 1958 sur le Canal de Suez’, AFDI, 1960, pp 169–84. 100 Declaration made by the government of Egypt on the Suez Canal and the arrangements for its operation of 24 April 1957, UNTS, vol. 265, no. 3821, p 306. 101 Ibid, p 299. 102 In the Dictionnaire de droit international public, a collateral agreement is defined as follows: ‘Contractual agreement concluded between, on the one hand the Parties to a treaty establishing obligations or rights for a third State and, on the other, the third State and the object of which is the acceptance by the latter of the said rights and obligations’ (J. Salmon (ed.), Dictionnaire de droit international public, supra n 4, p 10; own translation, emphasis

added). 103 Per P. Reuter, supra n 18, p 96. 104 The 1986 Vienna Convention and its travaux préparatoires are not more explicit on this issue. For example, Mr Sucharitkul was concerned about the question of whether it was necessary to specify which parties to the treaty had to be notified of that acceptance (YILC, 1982, vol. I, 1704th meeting, p 31). However, Fitzmaurice himself considered that this was a question that had little relevance (Fifth Report by Sir Gerald Fitzmaurice, YILC, 1960, vol. II, p 89). 105 The inter-dependent obligation is necessarily subordinated to the corresponding performance of the same obligation by the other party (disarmement treaty, eg); see on this issue, First Report by Sir Gerald Fitzmaurice on the Law of Treaties, YILC, 1957, vol. II, p 62. 106 In this regard, see the exchange of notes concluded between the USSR and the United Kingdom on 14 August 1987, which extended to the United Kingdom the provisions of the agreement concluded on the same date by Belgium, Italy, the Netherlands, and the USSR. ‘If it is acceptable to the Soviet side, this Note and the Note in reply from the Ministry shall constitute an agreement between the two Governments’ (BYBIL, 1988, p 499). 107 Along the same lines, P. Reuter, supra n 18, pp 109 ff; Ph. Cahier, supra n 23, pp 652 ff; J.-F. Prevost, ‘Les effets des traités conclu entre Etats à l’égard des tiers', PhD thesis, Paris II, 1973, pp 415–23 and 477–97; see also the Sixth Report on the Law of Treaties, A/CN.4/186, by Sir Humphrey Waldock, YILC, 1966, vol. II, p 72. 108 For an application to third States of the Hague Convention XIII, which codified customary rules relative to maritime neutrality in war, see P. Leroy, ‘L'affaire de l'“Attilio Regolo” et autres navires’, AFDI, 1965, pp 278 ff. The ILC and the Vienna Conference were careful to leave aside the case where a treaty rule could constitute a precedent for the emergence of a custom and, therefore, become binding upon a third State (see infra the commentary on Art. 38 of the Convention). * Senior Lecturer, Faculty of Law, University of Lille II, France.

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Volume I, Part III Observance, Application and Interpretation of Treaties, s.4 Treaties and Third States, Art.35 1986 Vienna Convention Caroline Laly-Chevalier From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Treaties, effect for third states — Responsibility of states — Treaties, interpretation

(p. 921) 1986 Vienna Convention Article 35 Treaties providing for obligations for third States or third organizations An obligation arises for a third State or a third organization from a provision of a treaty if the parties to the treaty intend the provision to be the means of establishing the obligation and the third State or the third organization expressly accepts that obligation in writing. Acceptance by the third organization of such an obligation shall be governed by the rules of that organization. A. Obligations arising for an organization from a provision of a treaty concluded between States 922 B. The effects of a treaty concluded by an organization in respect of its member States 924 1. Article 35 of the 1986 Vienna Convention is in part a copy of the corresponding provision of the 1969 Convention. The only difference arises from the taking into consideration of the specificities of international organizations and of their limited capacity. Thus, the second sentence of Article 35 of the 1986 Convention specifies that ‘[a]cceptance by the third organisation of such an obligation shall be governed by the rules of that organisation’. The parties to a treaty may therefore impose an obligation on a third organization which can accept it, provided that the obligation arises in an area of activity of the organization.1 The consent of the organization is governed by the rules of the organization and, as for the State, the consent must be given expressly and in writing.2 Only the manifestation of the will of the international organization creates the new legal relationship Thus, in this case again, it is the mechanism of the collateral agreement which justifies the extension of the effects of the treaty to the third organization.3 2. The problem of the effect of treaties involving international organizations in respect of third parties was examined by the ILC, following the First Report written by Reuter in 1972. Different situations were considered. On the one hand, because the 1969 Vienna Convention did not thoroughly examine this issue, the Commission dealt with the (p. 922) obligations arising for a third organization from a treaty concluded between States.4 On the other hand, the issue of the effects in respect of States which are members of the organization, of treaties concluded between the latter and a State, or between organizations has also been studied.

A. Obligations arising for an organization from a provision of a treaty concluded between States 3. In practice, treaties concluded between States frequently impose new functions on an international organization or on one of its organs and, hence, rights and obligations. For example, this is the case of treaties relative to nuclear testing imposing certain obligations on the International Atomic Energy Agency or of Conventions on the settlement of international investment disputes conferring certain responsibilities on the World Bank. The majority of members of the ILC, but also the consulted organizations, were of the opinion that by virtue of the principles of consensualism dominating treaty obligations, the consent of the organization was necessary in those cases.5 Indeed, taking into account its limited capacity, an international organization must be able to verify that the extension of its functions is in conformity with its constituent act. In addition, as Reuter pointed out in his Second Report,6 the States parties to the Convention extending the obligations of the organization may not necessarily be the same as the States which are members of that organization. Therefore, the new financial liabilities resulting from the extension of the obligations of the treaty must be brought to everyone's attention and be shared by all.

References 4. It was inevitable to inquire into the form in which consent had to be established. According to the position initially expressed by the Special Rapporteur, consent did not have to be subject to a specific form.7 Indeed, an examination of international practice seemed to show that the acceptance by the organization or one of its organs of certain obligations could be either formal or implicit. For example, by Resolution 1576 (L) of 20 May 1971, the Social and Economic Council (Ecosoc) of the United Nations expressly accepted the functions assigned to it by the Convention of 21 February 1971 on psychotropic substances.8 But the consent of Ecosoc to fulfil the new functions (p. 923) prescribed in a Convention could also be infered from its concern for States becoming parties to it.9 According to the Special Rapporteur, even in the not so infrequent case where the organization gives its consent in writing, it would be legitimate to question whether to qualify the resolution adopted by the competent organ of the organization as a ‘written instrument’.10

References 5. Taking into account the different legal situations, it was necessary for a while to distinguish the case of States from that of international organizations. For this reason, in his Sixth Report Reuter proposed to reproduce mutatis mutandis in draft Article 35(1) the protective rules

regarding the sovereignty and independence of States formulated in the 1969 Convention. However, because international organizations are neither sovereign nor equal between themselves, and also for reasons of flexibility and rationalization of the functions of the organization, it appeared sufficient, with regard to international practice, to specify that the consent of the organization had to be given ‘in an “unambiguous” manner’ and ‘in accordance with the relevant rules of the organization’.11 This still fell short of the strict requirements of the 1969 Convention in this respect. Nevertheless, according to the Special Rapporteur, it was not excluded that the rules of the organization could require acceptance in writing.12 In any event, where the treaty concluded between States or between a State and an international organization created new functions for the organization mixing rights and obligations, the predominant view was that the stricter rules should apply.13 6. Not convinced by that proposal nor by the report of the Drafting Committee,14 the ILC nevertheless decided, in draft Article 35 adopted during its 30th session, to go back to the text of the 1969 Vienna Convention and, consequently, to require that the acceptance of the organization be given ‘in writing’. In addition, it also recalled that the consent by the organization was governed by the relevant rules of that organization.15 Finally, it was understood that the obligation imposed on the organization had to fall within the sphere of its activities.16 The text of Article 35 submitted to the Conference was only (p. 924) subject to a very slight modification, as the delegations consolidated the two proposed paragraphs into a single provision.

B. The effects of a treaty concluded by an organization in respect of its member States 7. The problem of the effects of a treaty concluded by an organization in respect of its member States raised a lot of controversy, both within the ILC and during the debates at the Sixth Committee and at the Conference of Vienna of 1986. The basic idea is that a third party is not only outside the development of the treaty norm but is also foreign to its author.17 However, in the case of a treaty concluded between an organization and other subjects of international law, although the member States are not themselves parties to the agreement  and are not involved in the creation of the treaty norm, they nevertheless present a special link to the international organization, as a party to the agreement. They are thus linked to the author of the treaty norm. Therefore, although the States are not a party to the treaties concluded within the sphere of jurisdiction of the international organization, they are cognisant of those agreements. In consequence, it seems legitimate to question the accuracy of the ‘third party’ quality attributed to those member States. In that sense, Reuter qualified them as ‘intended third parties’ or ‘false third parties’.18 Those States, to the extent that they are not a party to the treaty instrument, certainly respond to the definition of a third State given by Article 2(1)(h) of the 1986 Vienna Convention, which reads as follows: ‘third State’ and ‘third organization’ mean respectively: (i) a State, or (ii) an international organization, not a party to the treaty However, this ‘legal proximity’ with the treaty concluded by the organization confers a specific status upon them. 8. Before 1972, when the First Report by Professor Reuter on the question of treaties concluded between States and international organizations or between two or more international organizations was published, the basis of the obligations imposed on member States was never discussed from a suitable viewpoint for international organizations. Some authors were content to affirm that States were legally bound by the mere fact of their membership in the organization, with no further explanation.19 Certainly, certain propositions were advanced, notably within the framework of the travaux préparatoires of the 1969 Vienna Convention, but the discussions were only incidental, to the extent that the ILC had decided to exclude from its work agreements concluded by international organizations. For example, Special Rapporteur Waldock invoked the idea of the (p. 925) representation of member States by the international organization (draft Art. 60(2)).20 That proposition did not gain the consent of the majority of members of the ILC and therefore did not give rise to any debate during the Conference of Vienna. Waldock's representation theory can be criticized in more than one respect and it is far from being unanimously accepted by the doctrine.21 In principle, it must be noted that representation presupposes the consent by the representative. However, this mechanism could only result, in the case examined, from a wilful agreement concluded between the represented member States alone. Moreover, in the mechanism of representation, it is the represented party which becomes a party to the treaty negotiated and concluded by the representative. But, here again, it cannot be contested that the member States of an international organization do not become parties to the treaty by the mere fact that the organization has participated in it.22 9. For the most part, it was in his Sixth Report that Reuter completed the analysis relative to the direct international engagement of member States of an organization, party to a treaty,23 essentially based on the practice of the EC. According to him, ‘the real question…is how direct relationships can evolve between States, members of an organisation, and Parties other than the organisation to a treaty concluded by the organisation’.24 In other words, in this context, the issue is whether the partners of the organization can directly require that the States, which are members of that international organization, comply with the treaty and hold them responsible for any breach of the treaty by the organization itself.25 10. It is not very important whether the existence of treaty obligations imposed on a member State which is not a party to a treaty is subject to its express and written consent, as

prescribed in Article 35 of the 1969 Vienna Convention, or whether, to the contrary, less rigorous rules are believed to apply to such cases.26 It is true that certain conventions directly or indirectly imply obligations in respect of States which are members of an international organization without requiring their preliminary written acceptance, even if they are not parties to the treaty. It is the case of headquarters agreements concluded, for example, by the United Nations with the United States on 26 June 1947, by the Food (p. 926) and Agriculture Organization with Italy on 31 October 1950, by UNESCO with France in 1954, and even by the World Health Organization with Switzerland on 17 July 1948.27 The member States are bound by the agreements in question, even if, besides the host State itself, they have not expressly notified their consent.28 But it is indisputably regional integration treaties concluded by international organizations, such as the European Communities, which raise the issue more acutely.

References 11. Reuter successively considered two cases, presented in draft Article 36bis of his Fourth Report.29 In the first case, the manifestation of the consent of the member States to be bound by the treaty obligations of the international organization would take place before the conclusion of the main treaty, by the acceptance of the constitutive act of the international organization, and would produce its effects at the time where the organization concluded a treaty with one or more co-contracting parties. According to the Special Rapporteur, the mere presence in the constitutive act of the organization of a provision, providing that the treaties concluded by the international organization would be binding on its members, would suffice for those agreements to produce such effects. If the acceptance of the treaty regime by the member States and the automatic extension of the effects of the treaty clearly arose from the constitutive act, the reasoning of the Special Rapporteur, which was respectful of the principle of the relative effect of treaties, could be sustained. On the contrary, the second case was easier to criticize. Reuter suggested that, unless a State expressed a contrary will, the consent of member States to the obligations flowing from a treaty should be deemed as being implicitly given at the time of its conclusion by the organization itself. In other words, there would be a presumption in favour of the creation of obligations in respect of member States. However, this assertion can be criticized because of the principle that the exceptions to the rule pacta tertiis cannot be presumed. 12. The first formulation of draft Article 36bis, revised by the ILC during its first reading, was subject to lively debates from which many lessons could be drawn.30 As a result, the content of Article 36bis adopted by the ILC and proposed at the General Assembly in 1982 was revised in depth.31 The provision read as follows: (p. 927) Obligations and rights arise for States members of an international organisation from the provisions of a treaty to which that organisation is a Party when the Parties to the treaty intend those provisions to be the means of establishing such obligations and according such rights and have defined their conditions and effects in the treaty or have otherwise agreed thereon, and if: a) the States members of the organisation, by virtue of the constituent instrument of that organisation or otherwise, have unanimously agreed to be bound by the said provisions of the treaty; and b) the assent of the States members of the organisation to be bound by the relevant provisions of the treaty has been duly brought to the knowledge of the negotiating States and negotiating organisations. The emphasis fell on the need for the explicit consent of all interested parties in order to create rights and obligations between member States of an organization and its co-contracting parties, regardless of whether such consent is set forth in the constituent act or given afterwards. 13. Diametrically opposed conceptions were confronted during the Vienna Conference. For example, in opposition to the representatives of international organizations (notably the UN, the ILO, the IMF)—who were very critical regarding the strict conditions imposed by Article 36bis—the Soviet delegation required that the consent of member States to be bound by the obligations of a treaty to which the organization was a party be expressed in the form of a formal and special agreement.32 In the end, draft Article 36bis, which strayed too much from international practice and was, in particular, inapplicable to headquarters agreements, was rejected during the Conference of Vienna.33 Faced with the wish of international organizations not to include the matter under the provisions of Articles 35, 36, and 37 of the Vienna Convention, the Conference adopted Article 74(3), which was worded as follows: The provisions of the present Convention shall not prejudge any question that may arise in regard to the establishment of obligations and rights for States members of an international organisation under a treaty to which that organisation is a Party.34 Therefore, the 1986 Vienna Convention presents a regrettable void on this point. 14. It follows from what has just been explained, that the modes of formation of the collateral agreement must be searched for within the rules of the international organization. However, for certain authors, Articles 35 to 38 of the 1986 Convention apply to member States of the organization not formally parties to the treaty. In consequence, their consent is indisputably required to be bound by rights and obligations.35 Other (p. 928) authors, while siding with the thesis of the need for consent, continue to believe that it is given by the State, once and for all, when it becomes a member of the organization.36 As a result, Article 300(7) of the treaty instituting the European Community (former Art. 228(7) EC) is generally interpreted as 37

crystallizing the consent given with the full knowledge of the States.37 Nevertheless, from the examination of the practice and the case law of the Community, it has never been clearly and expressly stated that States have considered this provision as the expression of their anticipated consent to be bound in the ‘external sphere’.38

References 15. To conclude, the remarkable drafting of Article 4(5) of Annex IX of the Montego Bay Convention on the law of the sea must be recalled. This provides that ‘[p]articipation of such an international organization shall in no case confer any rights under this Convention on member States of the organization which are not States Parties to this Convention’. The automatic attribution to member States of the rights arising from the participation of the organization in the Convention, as it resulted from draft Article 36bis (first version), is clearly and definitively set aside in this case. A contrario, this is also true for the obligations arising from the Convention, even if the provision examined is silent on this point, as the conditions for the acceptance of obligations are even more restrictive, as it has been seen, than those of the consent required to qualify as beneficiary of any rights. Article 4(5) enshrines the concern that the drafters of the Montego Bay Convention had to avoid that certain member States benefitted from the advantages arising from the participation of the Community in the Convention, while denying any obligations arising from it. In application of Article 35 of the Vienna Convention, regardless of the terms of its constituent act, it is understood that the organization must be considered as bound by the treaty it concludes. If they are to be held responsible vis-à-vis other contracting parties by reason of a breach of the agreement, the member States must have expressly given their consent to the creation of obligations for themselves flowing from this agreement. *

CAROLINE LALY-CHEVALIER

Footnotes: 1 Intervention by Mr Reuter, YILC, 1982, vol. I, 1703rd meeting, p 26; draft Art. 35, paras 2 and 3 had been drafted as follows: 2. An obligation arises for a third international organisation from a provision of a treaty if the Parties to the treaty intend the provision to be the means of establishing the obligation in the sphere of its activities and the third organisation expressly accepts that obligation. 3. Acceptance by a third international organisation of the obligation referred to in paragraph 2 shall be governed by the relevant rules of that organisation and shall be given in writing. 2 Pursuant to Art. 2(1)(j) of the 1986 Vienna Convention, ‘ “rules of the organisation” means, in particular, the constituent instruments, decisions and resolutions adopted in accordance with them, and established practice of the organisation’. 3 See on this issue, the intervention by Mr Reuter, YILC, 1982, vol. I, p 26. 4 We will not delve into the question of whether the organization is a third party with respect to its constituent instrument. Since the organization draws its very existence from its constituent charter, it is deemed that ‘no organisation can be said to be in the position of a third Party in relation to its constituent charter’ (Second Report on the question of treaties concluded between States and international organizations or between two or more international organizations, Paul Reuter, A/CN.4/271, YILC, 1973, vol. II, p 88); contra, Ph. Cahier, ‘Le problème des effets des traités à l’égard des Etats tiers', RCADI, 1974-III, vol. 143, pp 589–736, esp. pp 699 ff), according to whom organizations are third parties to the constituent treaty imposing on them obligations to which they have not consented. The question of the effects of constituent treaties of international organizations with respect to non-member States is, in any event, governed by the 1969 Vienna Convention, Art. 5 of which provides that ‘The present Convention applies to any treaty which is the constituent instrument of an international organisation and to any treaty adopted within an international organisation without prejudice to any relevant rules of the organisation’. 5 Interventions by Messrs El-Erian, YILC, 1969, vol. I, p 16; Kearney, ibid, p 18; Ouchakov, ibid, p 20; Pinto, YILC, 1973, vol. I, p 217. 6 P. Reuter, Second Report on the question of treaties concluded between States and international organizations or between two or more international organizations, YILC, 1973, vol. II, p 89. 7 Ibid, p 89; Kearney, YILC, 1973, vol. I, p 219; Tammes, YILC, 1973, vol. II, p 221. 8 Cited in YILC, 1973, vol. I, p 89. 9 Resolution 833 B (XXXII) of 3 August 1961 relating to the 1961 Drugs Convention. However, see the doubts expressed by Mr Calle y Calle and Mr Ago, YILC, 1977, vol. I, pp 130 and 132. 10 YILC, 1977, vol. I, p 132: Indeed, it might be asked exactly what was meant by the words ‘international agreement concluded…in written form’: did they mean an agreement the instruments of which were in writing or an agreement of which there was some evidence in writing? 11 P. Reuter, Sixth Report on the Question of Treaties Concluded between States and International Organizations or between two or more International Organizations, A/CN.4/298, YILC, 1977, vol. II, Part One, p 136.

12 YILC, 1977, vol. I, 1439th meeting, p 129. 13 YILC, 1977, vol. I, 1444th meeting, p 132. 14 YILC, 1978, vol. I, p 201. 15 Report of the Commission on the work of its 30th session, YILC, 1978, vol. II, Part Two, p 148; Report of the Commission on the work of its 34th session, YILC, 1982, vol. II, Part Two, p 43. Draft Art. 35 had been worded as follows: 1. An obligation arises for a third State from a provision of a treaty if the Parties to the treaty intend the provision to be the means of establishing the obligation and the third State expressly accepts that obligation in writing. 2. An obligation arises for a third organisation from a provision of a treaty if the Parties to the treaty intend the provision to be the means of establishing the obligation and the third organisation expressly accepts that obligation in writing. Acceptance by the third organisation of such an obligation shall be governed by the relevant rules of that organisation. 16 This limitation, included by the ILC in its draft Article on first reading, was eliminated on second reading, Report of the Commission on the work of its 34th session, YILC, 1982, vol. II, Part Two, p 43. 17 See Ph. Braud, ‘Recherches sur l'Etat tiers en droit international public’, RGDIP, 1968, p 22. 18 P. Reuter, Second Report on the question of treaties concluded between States and international organizations or between two or more international organizations, A/CN.4/271, YILC, 1973, vol. II, p 215; P. Reuter, Sixth Report on the question of treaties concluded between States and international organizations or between two or more international organizations, A/CN.4/298, YILC, 1977, vol. II, Part One, p 131. 19 Ph. Braud, supra n 17, pp 41–2; H.-J. Geiser, ‘Les effets des accords conclus par les organisations internationales—Etude en droit international des Organisations Internationales à la lumière de la Convention de Vienne de 1969’, PhD thesis, Geneva, IUHEI, 1972, p 181. 20 Draft Art. 60(2) by Sir Humphrey Waldock, Third Report on the Law of Treaties, A/CN.4/167, YILC, 1964, vol. II, pp 13 ff: Similarly, when an international organisation, duly authorized by its constituent instrument or by its established rules, concludes a treaty with a non-member State in the name both of the organisation and of its Member States, the rights and obligations provided for in the treaty may be invoked by or against each Member State. 21 Cf Ph. Cahier, supra n 4, p 721; R. Daoudi, La représentation en droit international public (Paris: LGDJ, 1980), p 232. 22 R. Daoudi, ibid, p 244; F. Seyersted, ‘International Personality of Intergovernmental Organisations—Its scope and its validity vis-à-vis non-members: Does the capacity really depend upon the constitution?’, Indian J Int'l L, 1964, p 33. 23 Sixth Report on the question of treaties concluded between States and international organizations or between two or more international organizations, Paul Reuter, A/CN.4/298, YILC, 1977, vol. II, Part One, pp 134–5 and 137–42. See also P. Reuter, ‘Le droit des traités et les accords internationaux conclus par les organisations internationales’ in Mélanges W. J. Ganshof Van der Meersh (Brussels: Bruylant, 1972), vol. 1, pp 195–202. 24 P. Reuter, Tenth Report on the Question of Treaties concluded between States and International Organizations or between two or more International Organizations, A/CN.4/341, YILC, 1981, vol. II, Part One, p 69, original emphasis. 25 On this matter, cf C. Laly-Chevalier, La violation du traité (Brussels: Bruylant, 2005), pp 73 ff. 26 P. Reuter, Tenth Report on the Question of Treaties concluded between States and International Organizations or between two or more International Organizations, A/CN.4/341, YILC, 1981, vol. II, Part One, p 71. 27 UNTS, vol. 26, p 332. 28 Contra, Ouchakov, YILC, 1978, vol. I, 1510th meeting, p 203. 29 Article 36bis: 1. A treaty concluded by an international organisation gives rise directly for States members of an international organisation to rights and obligations in respect of other Parties to that treaty if the constituent instrument of that organisation expressly gives such effects to the treaty. 2. When, on account of the subject-matter of a treaty concluded by an international organisation and the assignment of the areas of competence involved in that subjectmatter between the organisation and its member States, it appears that such was indeed the intention of the Parties to that treaty, the treaty gives rise for a member State to: (i) rights which the member State is presumed to accept, in the absence of any indication of intention to the contrary; (ii) obligations when the member State accepts them, even implicitly. (Sixth Report on the question of treaties concluded between States and international organizations or between two or more international organizations, Paul Reuter, A/CN.4/298, YILC, 1977, vol. II, Part One, p 137.) 30 Mr Ouchakov emphatically opposed Art. 36bis, notably based on the argument that the

draft Article only envisaged supranational organizations such as the European Community, YILC, 1978, vol. I, pp 202–5; 1982, vol. I, p 27. On the contrary, some members of the Commission saw it as a satisfactory rule, prone to promoting the progressive development of law, Thiam, YILC, 1982, vol. I, 1709th meeting, p 28; Tammes, YILC, 1973, vol. I, p 222. Finally, others had doubts regarding the possibility of dealing with such a complex problem. 31 Report of the ILC on the work of its 34th session, YILC, 1982, vol. II, Part Two, pp 44–8; G. Gaja, ‘A “New” Vienna Convention on Treaties between States and International Organizations: a Critical Commentary’, BYBIL, 1987, pp 263–5; H. Isak and G. Loibl, ‘United Nations Conference on the Law of Treaties between States and International Organizations or between International Organizations’, ÖZöRV, 1987, pp 69–72. 32 SR 19/8 and SR 20/10. 33 P. Klein, La responsabilité des organisations internationales dans les ordres juridiques internes te en droit des gens (Brussels: Bruylant, 1998), p 446; K. Zemanek, ‘The United Nations Conference on the Law of Treaties Between States and International Organizations or Between International Organizations: The Unrecorded History of its “General Agreement”’, Mélanges Seidl-Hohenveldern (Cologne: Heymann, 1988), p 674. 34 See infra, the commentary on this provision in this work. 35 Ch. Chinkin, Third Parties in International Law (Oxford: Clarendon Press, 1993), p 94. Contra, Ph. Manin, Les Communautés européennes dans l'ordre international (Brussels: Perspectives européennes, 1984), p 472, according to whom Art. 74 of the 1986 Vienna Convention does not allow the contention that the problem of rights and obligations arising for member States of a treaty concluded by an organizations ensues from Arts 35 and 36. 36 Ph. Cahier, supra n 4, p 722; H.-J. Geiser, ‘Les effets des accords conclus par les organisations internationales—Etude en droit international des Organisations Internationales à la lumière de la Convention de Vienne de 1969’, PhD thesis, Geneva, IUHEI, 1972, p 238; H. Pazarci, ‘Problèmes d'incompatibilité des accords conclus par la CEE’ in Mélanges Reuter (Paris: Pedone), pp 391–405, at p 397; P. Reuter, Introduction au droit des traités (3rd edn, Paris: PUF, 1995), p 108; Nguyen Quoc Dinh, P. Daillier, and A. Pellet, Droit international public (7th edn, Paris: LGDJ, 2002), p 242, fn 155. 37 Sir H. Waldock, Third Report on the Law of Treaties, A/CN.4/167, YILC, 1964, vol. II, pp 12–13; J. Groux and Ph. Manin, Les Communautés européennes dans l'ordre international (Brussels: Perspectives européennes, 1984), p 149; Nguyen Quoc Dinh, P. Daillier, and A. Pellet, supra n 36, p 241, fn 153, who in all fairness specified that in the most common case, the constituent act of the organization does not include any specific provision in this respect; see the observations of the European Court of Justice in Case 104/81 Kupferberg, 26 October 1982, ECR 1982, p 2364. 38 Case C-327/91 French Republic v Commission of the European Communities, 9 August 1994, ECR 1994, p I-3674, paras 24 and 25. The Court considered that: it is the Community alone, having legal personality pursuant to Article 210 of the Treaty, which has the capacity to bind itself by concluding agreements with a nonmember country or an international organisation. There is no doubt, therefore, that the Agreement is binding on the European Communities.…In the event of nonperformance of the Agreement by the Commission, therefore, the Community could incur liability at international level. (emphasis added) * Senior Lecturer, Faculty of Law, University of Lille II, France.

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Volume I, Part III Observance, Application and Interpretation of Treaties, s.4 Treaties and Third States, Art.36 1969 Vienna Convention Pierre d'Argent From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Treaties, effect for third states — Treaties, interpretation — Customary international law

(p. 929) 1969 Vienna Convention Article 36 Treaties providing for rights for third States 1. A right arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to accord that right either to the third State, or to a group of States to which it belongs, or to all States, and the third State assents thereto. Its assent shall be presumed so long as the contrary is not indicated, unless the treaty otherwise provides. 2. A State exercising a right in accordance with paragraph 1 shall comply with the conditions for its exercise provided for in the treaty or established in conformity with the treaty. A. General characteristics 929 Object and scope 929 Customary status 930 B. Conditions for providing rights for third States 931 The intention of the parties to provide a right 932 Providing a right to a third State, to a group of States to which it belongs, or to all States 934 The assent of the third State 935 C. Conditions for third States to exercise rights provided 939

Bibliography Jiménez de Aréchaga, E., ‘La estipulacion en favor de terceros estados en el derecho international’ in Estudios en memoria de José Irureta Goyena (Montevideo, 1955), pp. 304–414 —— ‘Treaty stipulations in favor of third States’, AJIL, 1956, pp 338–57 Meriggi, L., I trattati ed i terzi (Turin: Unione tipografico-editrice Torinese, 1939) Riz à Porta, G. G., Der Vertrag zu Gunsten Dritter im Völkerrecht (Zurich: E. Lang, 1942) Smets, P.-F., Les effets des traités internationaux à l'égard des Etats tiers, Université de Paris, Institut des Hautes études internationales, 1965–66 Tomuschat, Ch., Neuhold, H., and Kropholler, J., Völkerrechtlicher Vertrag und Drittstaaten, Berichte der Deutschen Gesellschaft für Völkerrecht, No. 28, (Heidelberg: C. F. Müller, 1988) Wetzel, R. G., Verträge zu Gunsten und zu Lasten Dritter nach der Wiener Vertragsrechtskonvention (Göttingen: Institut für Völkerrecht der Universität Göttingen, Band 15, 1973) Winkler, C.-H., Verträge zu Gunsten und zu Lasten Dritter im Völkerrecht (Leipzig: Universitätsverlag von Robert Noske, 1932) Wunschik, J., Die Wirkung der Völkerrechtlichen Verträge für dritte Staaten (Bern: E. Horat, 1930)

A. General characteristics Object and scope 1. The object of this Article is to determine the general conditions under which a State not bound by a treaty may claim the benefit of a right under it.1 Paragraph 1 of Article 36 (p. 930) states the conditions according to which parties to a treaty may provide a right to a third State, to a group of States to which it belongs, or to all States. Paragraph 2 states the conditions according to which the beneficiary third State must exercise the treaty right. 2. The mechanism of this provision is not to be confused with the most-favoured-nation (MFN) clause: Article 36 deals with the conditions under which a third State may benefit from the rights conferred to it by the contracting parties; whereas, through the MFN clause, parties benefit from the rights that one of them has conferred to a third State. The ILC has not considered it necessary to explicate the difference between those two mechanisms.2 During the Vienna Conference, the Soviet and Hungarian delegations feared that the rights deriving from MFN clauses would be affected by the provision being negotiated. They introduced an amendment stating that the provision (then numbered Art. 32) was without prejudice to the MFN mechanism. Considered superfluous by many delegations, the amendment was withdrawn when M. Ago, presiding over the working session, stated that the new provision did not alter the interests of States benefiting from MFN clauses.3 3. Article 36 does not deal with the situation in which a treaty (eg the European Convention on Human Rights) provides for rights to the direct benefit of individuals, either in the form of self-executing provisions or (alternatively or additionally) in the form of an ad hoc institutional mechanism.4 Article 36 only deals with treaties conferring rights to third States.

Customary status

4. Article 36, paragraph 1 represents a compromise between two opposing theoretical positions. According to the first position, contracting parties may directly and through their own will create a right to the benefit of third States (‘third-party stipulation’ approach). According to the second position, the common will of the contracting parties is insufficient by itself to create a right to the benefit of third States: such common will only creates an advantage which the third State must accept in order for it to become a right to its benefit (‘collateral agreement’ approach). Each of those theoretical positions claims to reflect customary international law. Since the wording of Article 36 does not intend to favour either of the two positions, one should logically assume that at least one is correct, and therefore that Article 36 necessarily reflects customary international law. However, this logical trick does not solve the substantial issue as to what the content of the customary rule might be. Moreover, it fails to take account of the fact that the enshrined rule of the presumed assent of the third State was suggested as a drafting compromise (see infra) that did not reflect an established practice. Hence, it is probably more correct to consider that the opposing theoretical views that were expressed during the ILC (p. 931) sessions actually reflected the uncertainty existing in international law on the subject. This uncertainty is due to the absence of a clear and constant practice, or rather to the constant divergence in the theoretical elaboration and understanding of such a practice. By not deciding between two opposing views, Article 36 actually represents a progressive development of international law. It was therefore difficult to consider it declaratory of customary law in 1969. Its customary status today is also difficult to affirm, due to the lack of practice. Nonetheless, the very wide participation to the Vienna Convention, the absence of any practice contrary to Article 36,5 and its ‘logical’ content may be considered as elements pleading in favour of its current customary nature,6 if one sets aside the Baxter paradox. The rule is certainly ‘acceptable’ to most States, simply because it is sound. Contesting its customary nature would necessitate embarking on a difficult theoretical inquiry which may appear rather sterile to States and which the drafters of Article 36 have precisely tried to set aside and overcome. 5. The drafting history of Article 36, paragraph 2 is uncontroversial. It enunciates a rule flowing from juridical logic as much as from customary law, in a field where practice remains scarce.7

B. Conditions for providing rights for third States 6. As noted by the ILC, providing rights by treaty for third States is more controversial than providing obligations, because whereas the requirement of the assent of the third States in the case of an obligation is unquestionable, the same requirement in the case of a right presents itself differently.8 It is uncontroversial that parties to a treaty cannot impose a right on a third State without its consent, as it may always refuse or renounce the benefit of such right. It is also certain that the third State may only claim the benefit of a treaty if the contracting parties had the intention of conferring such a right to the State. As mentioned supra, the controversial question which has divided the ILC was rather whether contracting parties are capable by their own common will of creating a right for the benefit of the third State or whether its consent is needed to transform an advantage into a subjective right. At the core of the controversy between the third-party stipulation approach and the collateral agreement approach lies the more fundamental question of the legal effect of unilateral acts of States,9 since the common will of the contracting parties presents itself as a collective unilateral act as regards the third State. (p. 932) The practical questions at stake in this theoretical controversy are of three different kinds: (1) when does the third State's right precisely come into existence; (2) what are the conditions to modify or revoke the right conferred to the third State—Article 37 deals with this issue;10 (3) what are the domestic constitutional consequences of each theoretical approach?11

The intention of the parties to provide a right 7. The intention of the contracting parties to provide a right by their treaty to a third State is obviously a sine qua non condition. Without such intent, the third State may not invoke the benefit of a treaty provision. It is worth noticing that Article 35 of the Vienna Convention, relating to obligations arising from a treaty for a third State, and Article 36 share for that purpose the same fundamental requirement. Through slightly different formulae, both Articles also require that the intent to confer an obligation (Art. 35) or a right (Art. 36) arise from a specific treaty provision having such purpose. If the intent of the contracting parties is uncertain or imprecise, the third State may not invoke the benefit of a treaty provision that it happens to find advantageous. 8. In the Free Zones case, the Permanent Court of International Justice stressed that: (p. 933) It cannot be lightly presumed that stipulations favourable to a third State have been adopted with the object of creating an actual right in its favour. There is however nothing to prevent the will of sovereign States from having this object and this effect. The question of the existence of a right acquired under an instrument drawn between other States is therefore one to be decided in each particular case: it must be ascertained whether the States which have stipulated in favour of a third State meant to create for that State an actual right which the latter has accepted as such.12 The last sentence of this excerpt has led to diverging interpretations as to the juridical meaning of the third State assent. Nevertheless, three uncontroversial elements appear from this ruling: ‘favourable stipulations’ are not to be presumed and must be established in concreto;13 they are grounded in the sovereignty of the contracting States; they must consist in an ‘actual right’ and not simply in an advantage. In other words, regarding this last point, it

is not sufficient that the third State benefits from a favour: what is required is that at least one contracting party becomes the debtor of an obligation in favour of the third State. As far as this contracting party is concerned, the right conferred by the treaty to the third State entails an obligation towards it, but also another obligation towards the other contracting parties, ie the obligation to let the third State enjoy the conferred right.

References 9. The distinction between the intent to confer a right (Art. 36) and the intent to confer an obligation (Art. 35) seems elementary. In the first case, an obligation is created in favour of the third State while in the last case an obligation is placed on the third State. However, it may sometimes be difficult to distinguish between rights and obligations. This is particularly the case when the same provision provides for rights and obligations. For instance, a provision can contain a waiver of any additional claims to the benefit of the third State, accompanied with its duty to indemnify nationals whose foreign properties have been seized and liquidated by the contracting parties in order partially to compensate past wrongs. In such a case, what must be expressly accepted in writing by the third State (pursuant to Art. 35 where obligations are concerned) and what is presumed to have been accepted (pursuant to Art. 36 where rights are concerned)? In case of doubt, the stricter regime—ie the regime of Article 35—should prevail.14 As Sir Humphrey Waldock underlined during the Vienna Conference, Articles 35 and 36 can be considered ‘as a whole’ and they must apply, sometimes simultaneously, according to the right or the obligation at stake: if the treaty provides for an obligation as well as for a right, the obligation must be accepted separately, independently from the right.15 This difficulty is not to (p. 934) be confused with the fact that the exercise of the conferred right can be subject to conditions with which the beneficiary third State must comply (Art. 36, para. 2).

Providing a right to a third State, to a group of States to which it belongs, or to all States 10. According to Article 2, paragraph 1(h) of the Vienna Convention, a ‘third State’ ‘means a State not a Party to the treaty’.16 11. In its final report commenting on the draft Articles on the law of treaties and summarizing the reports of Special Rapporteur Sir Humphrey Waldock, the ILC notes that ‘treaty practice shows a not inconsiderable number of treaties containing stipulations in favour of third States’.17 Reference is made by the ILC to treaties providing rights in favour of a specific State —eg Article 109 of the Peace Treaty of Versailles in favour of Denmark in border issues, or its Articles 358 and 374 in favour of Switzerland (use of the Rhine River and denunciation of the St Gothard railway treaty)—but also to treaties benefiting a group of States—eg the waivers of claims contained in peace treaties after the Second World War to the benefit of all the Allied and Associated Powers even if some were not contracting parties.18 According to the ILC, Article 35, paragraph 2 of the UN Charter and the mandates and trusteeship agreements also constitute treaties benefiting a group of States, namely either the League of Nations or the UN member States.19 According to the ILC debates,20 one can also consider that Articles 32 and 50 of the UN Charter confer certain rights to non-members. On the subject of treaties conferring rights to all States, the ILC mentions provisions relating to the free navigational use of rivers, canals, or international straits, such as the 1888 Constantinople treaty relating to the Suez Canal, the 1901 Hay-Pauncefote treaty relating to the Panama Canal, or Articles 380 to 386 of the Versailles treaty relating to the Kiel Canal.

References 12. In his Third Report, Sir Humphrey Waldock had treated in two separate provisions the fact of conferring a right to a third States or to a group of States to which it belongs (Art. 62, para. 2), and the fact of conferring a right to all States (Art. 63). The latter kind of treaties was considered as establishing ‘objective regimes’.21 The idea of the Special Rapporteur was to allow for the swift consolidation of conventional regimes, agreed upon by States competent for the object (territories, rivers, watercourses,…) of the treaty, in favour of all States, without having to wait for such a regime to become law through the customary process. After a substantial debate,22 the ILC agreed to integrate (p. 935) in one provision the stipulations in favour of all States and to abandon the notion of treaties creating ‘objective regimes’, despite its academic interest.23 13. Is it required that the third State be specifically identified by the treaty in order for it to benefit from a stipulation in its favour? During the Vienna Conference, the Tanzanian delegate raised the issue in relation to provisions establishing obligations,24 but the same question can also be asked as far as stipulations of rights are concerned. In his capacity as expert to the conference, Sir Humphrey Waldock did not answer the question, but in his capacity as Special Rapporteur to the ILC he had considered that the third State need not be specifically identified in the treaty, as he had rejected the Dissenting Opinion of Judge Negulesco in the Free Zones case.25 According to the Special Rapporteur, the idea that the third State had to be identified was logically untenable, as the real question was whether the parties intended to create a right.26 If the beneficial third State need not be identified in the treaty,27 it is however reasonable to consider that it must be identifiable,28 for it is difficult to conceive that the intention to create a right can be totally disinterested and abstract. When the right is conferred to a group of third States, it is sufficient that the group itself be identifiable (eg the group of non-member States of the UN or the group of the Allied and Associated Powers during the Second World War). When the right is conferred to all States, the intention is of

course more abstract, as the right is presumed—unless otherwise specified—to benefit States which did not exist at the time of the treaty, as long as the beneficial provision exists.29

References 14. When the right is conferred to third States belonging to a group of States or to all States, it is not the group or the generality of States that are beneficiaries of the right; it is the third States, each of them individually, as members of the group, or as members of the international community. Hence, the reference made by the treaty to a group of third States or to the generality of States is a way to identify the beneficiary third States of the right conferred.

The assent of the third State 15. Article 36, paragraph 1 states that the right arises for the third State ‘if the Parties to the treaty intend the provision to accord that right…and the third State assents thereto’. The assent required is of course that of the third State to which the parties intended to confer the right; the assent of any other third State is irrelevant. Furthermore, the use of the conjunction ‘and’ makes clear that both the contracting parties' intent and the third State's consent are necessary for the right to exist. One might thus think that the Convention sets aside the thirdparty stipulation theory, in favour of the collateral (p. 936) agreement theory. However, as already shown, the intention of the ILC was precisely to use a formula which did not favour either of the two theories. 16. Whereas the various Special Rapporteurs leaned in favour of the third-party stipulation theory,30 the ILC was equally divided31 on ‘the question whether “assent” is necessary in any form whatever in order for the provision to vest the right definitely in the third State’.32 The diverging opinions of the members of the ILC were essentially of a doctrinal nature, as both schools of thought agreed on many issues, such as the fact that a treaty can be a way to establish a right to the benefit of a third party, which remains free to accept or reject it.33 Moreover, the proponents of the collateral agreement theory agreed that the consent of the third party to a right—as opposed to an obligation—need not be explicit, but could result from the exercise of that right. On the other hand, proponents of the third-party stipulation conceded that the renunciation to a pre-existing right could be tacit, notably through its nonexercise. Because States seemed unwilling in their commentaries to stand by either of the theories and because the ILC considered that only in very exceptional circumstances might different practical consequences result from the two theories, the ILC decided to draft a provision which, ‘while meeting the requirements of State practice, would not prejudge the doctrinal basis of the rule’.34

References 17. This middle way emerged in drafting in different stages.35 First, the proposal made by Sir Humphrey Waldock in his Third Report—according to which a third State may claim the benefit of a treaty as long as it has not, expressly or tacitly, rejected it36—was modified by the Commission. The consent of the third State was considered as a requirement for its right to exist under the treaty, even if this consent could be implicit.37 The Commission's proposal was rejected by the Netherlands and Turkey. These States required that the possibility to consent implicitly be dropped, as they feared that otherwise third States might too easily acquire rights that could not later be modified by the parties without their consent. The US suggested reserving the possibility of an explicit or implicit consent to stipulations in favour of a specific third States or to a group of third States, thus dispensing with such a requirement in case of a stipulation in favour of all States.38 Taking (p. 937) into account those positions, the ILC favoured the formula of the presumed assent of the third State, ‘so long as the contrary was not indicated’.39 This formula presented the advantage of leaving aside the controversies around the explicit or implicit consent and had been suggested by R. Ago,40 who quickly convinced the Special Rapporteur and the other members of the ILC of its merits. This said, the Ago formula was not very different from the one presented by Sir Humphrey Waldock in his Third Report (supra), despite the fact that Ago rejected the third-party stipulation theory which was preferred by the Special Rapporteur. The Ago formula prolonged P. Reuter's idea to negatively express the impact that the attitude of the beneficial third State might have on the creation of its right.41 18. During the Vienna Conference, the Netherlands was still arguing that it was not the consent of the third State which created the right but the actual use of the right. Hence, it suggested dropping the words ‘and the third State assents thereto. Its assent shall be presumed so long as the contrary is not indicated’ and replacing the words ‘a right arises’ with ‘a right may arise’.42 Favouring the collateral agreement theory, Finland considered that for reasons of legal certainty, the assent could not be presumed but had to be established, even if only tacitly.43 The Finnish amendment aiming at the deletion of the second sentence of Article 36, paragraph 1 was rejected,44 and the Netherlands decided to withdraw its amendment.45 Thus, the rule of the presumed assent so long as the contrary is not indicated, as suggested by the ILC, was accepted. 19. The words ‘unless the treaty otherwise provides’ were added at the Vienna Conference following the suggestion of the Japanese delegation,46 thereby reaffirming the non-peremptory character of those rules, the principle of the presumed assent being applicable only if the treaty is silent on the question.47 The usefulness of this addition is questionable, since the presumed assent only exists ‘so long as the contrary is not indicated’, which can of course be the case by virtue of the treaty itself. The real meaning of the addition suggested by Japan is therefore to underline that the treaty can provide not only for the rule of the presumed assent,

but also for the principle according to which such a rule exists only insofar as there is no indication to the contrary. It is however unclear if the Japanese amendment, inserted in Article 36, renders the presumed assent rule irrefutable. This uncertainty shows that the agreed compromise on a rule of evidence is far from settling the theoretical debates that divided the ILC. 20. Article 35 of the Convention states that an ‘obligation arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to be the means of (p. 938) establishing the obligation and the third State expressly accepts that obligation in writing’, whereas Article 36 indicates that the will of the parties must have been ‘to accord’ a right to the third State which ‘assents thereto’. The travaux préparatoires of the Convention do not explain those differences in wording. To ‘accept’ probably refers to a positive act of adhesion, whereas to ‘assent’ would indicate a more passive attitude, by which one would just refrain from preventing something from happening—hence the presumption of assent. The French version of Article 36 refers to the ‘consentement’ of the third State, whereas the French version of Article 35 mentions that it must ‘accepter’ the obligation. In the English version of the Convention, the word ‘consent’ is used in Articles 11 et al dealing with the various means to express contractual wills, and in Articles 47 et al dealing with the invalidity of treaties.48 21. Article 36 does not specify until when it is possible for the third State to indicate the opposite of its presumed assent, so as to refuse the right that the parties to the treaty intended to confer to it. R. Ago suggested that his proposal (to which the ILC finally agreed) meant that the third State could refuse the conferred right at any time.49 Indeed, one could hardly oppose to the third State treaty restrictions that would limit its faculty to renounce the right.50 It is also certain that those restrictions cannot be considered as conditions for the exercise of the right—within the meaning of Article 36, paragraph 2—with which the third State should comply. However, the rule of the presumed assent in the absence of an indication to the contrary makes the existence of the right in favour of the third State coincide with its stipulation by the contracting parties, or at least with the fact of informing the third State of such a stipulation.51 Hence, it would be contrary to the bona fides due by the third State to the contracting parties because of its presumed assent to suddenly renounce its right after a certain time. If the third State was able to renounce its right and did not do so within a reasonable period of time, the rule of the presumed assent must, ‘unless the treaty otherwise provides’, apply fully so that the renunciation can only be expressed in the forms provided by the treaty itself. If the treaty is silent on this point, good faith probably requires that the renunciation be not immediate and only take effect after a reasonable period of time. The logic of the collateral agreement theory could go as far as to command compliance with the usual rules on the denunciation of treaties,52 in the absence of specific treaty provisions. A fortiori, the same holds true if the right has been distinctively consented to, and not simply presumably assented to. Here again, the theoretical hesitations that explain the drafting of Article 36 emerge. They are however of little practical impact if one considers that the collateral agreement, by which the right is assented to, is by ‘nature’—within the meaning of Article 56, paragraph 1(b) of the Convention—an agreement that one can unilaterally denounce or from which one can withdraw. 22. If the third State renounces the right from the start, it seems that it cannot benefit from it later on, even if the parties have not modified the treaty. In such a case, (p. 939) ‘the right is, of course, destroyed and can then only be re-established by a new agreement’.53 23. If the treaty provides that the right (or, rather, that the advantage) must be accepted by the third State in certain forms and within a certain time, the rule of the presumed assent does not apply, since the treaty provides otherwise. In such a case, the third State shall benefit from the offer made to it according to the conditions set by the treaty.

C. Conditions for third States to exercise rights provided 24. According to paragraph 2 of Article 36, the third State exercising a right provided for by a treaty ‘shall comply with the conditions for its exercise provided for in the treaty or established in conformity with the treaty’. The principle of this rule was suggested by the Special Rapporteur in 1964,54 retained by the ILC in its 1966 final report,55 and agreed upon as such by the Diplomatic Conference.56 25. In his Third Report, Sir Humphrey Waldock insisted on the elementary character of this provision, but insisted also on the need to express it. He considered that it was a ‘fundamental principle of law’ that ‘no one may at the same time claim to enjoy a right and to be free of the obligations attaching to it’.57 Some ILC members argued that the third State must always comply with certain obligations when exercising it, in order to criticize the third-party stipulation theory and to underline the need for the third State's assent.58 It must however be stressed that when assenting to its right and complying with the conditions set up in the treaty to exercise its right, the third State ‘does not put itself in the same position as a Party with respect to the treaty as a whole’.59 26. The words ‘or established in conformity with the treaty’ refer to the fact that it is often the case that the contracting parties agree on the conditions of the exercise of the conferred right in a separate document. Sometimes, it is even possible for one single contracting party to establish those conditions in conformity with the treaty requirements, such as in the case of the use of an international watercourse where the territorial State regulates the exercise of the third States' rights.60 Contrary to the fear expressed by the Turkish government,61 those last words of paragraph 2 of Article 36 cannot be interpreted as allowing the beneficiary third State to contest new exercise conditions agreed upon by the parties: those new conditions would indeed result from a modification of the right conferred, and if such a modification complies with the requirements of Article 37, the (p. 940) new provision automatically replaces

the older. Thus, the contracting parties' right to modify the right conferred to third States is not limited by paragraph 2 of Article 36, but must only conform to the requirements of Article 37, paragraph 2.62 27. Despite its utility and the subtlety of its drafting, Article 36 does not resolve all the questions related to the conferral of rights through treaties to third States. Fundamentally, this provision fails to clarify the nature of the juridical links existing between the beneficiary third State and the contracting parties. As already mentioned, it is certain that the third State never becomes party to the treaty. It is however the beneficiary of a right accorded by the treaty. But who is the debtor of that right? Is it all the contracting parties whose common will was necessary to confer the right, or only the contracting party (or parties) on which the effective enjoyment of the right depends? According to common sense, the third State could probably only claim the benefit of its conferred right to that (or those) contracting party (parties). But is it not also possible for it to require the other contracting parties to react to the attitude of their counterpart depriving the State of the effective enjoyment of its conferred right? After all: in the case of a treaty purporting to create rights for third States there was a double relationship because, as between the parties, any refusal to accord the right to a third State would be a violation of the treaty with respect to the parties to the treaty as well as a violation of the right of the third State.63 *

PIERRE D'ARGENT

Footnotes: 1 Sir H. Waldock, Third Report on the Law of Treaties, YILC, 1964, vol. II, p 19. 2 Report of the ILC covering the work of its 16th session, YILC, 1964, vol. II, p 176; Report of the ILC on the work of its 18th session, YILC, 1966, vol. II, p 177. 3 Official Records, Analytical Records, 2nd session, 14th session, p 66. Art. 36 (then numbered 32) was adopted by 100 votes to 0. On the Soviet delegate's remarks, see ibid at p 64, paras 9–14, and see p 66, para 29 for the Hungarian remarks. 4 Sir Humphrey Waldock intended in his Third Report to introduce a specific provision relating to the application of treaties to individuals (YILC, 1964, vol. II, Art. 66, p 45). The ILC was divided on the need to have such a provision and the Special Rapporteur withdrew his proposal (ibid, p 176). 5 Since 1969, no practice relating to Art. 36 has been reported in the Digests of US practice, in the Kiss ‘recueil’ of French practice, in the UK materials published by the BYBIL, in the RSDI on Swiss practice, or in the ZaöRV on German practice. 6 Despite considering that the rule of the presumed assent goes beyond what can be deduced from State practice, Ph. Cahier nevertheless concludes to the customary nature of Art. 36, considering that, after all, it is closer to the theory of the collateral agreement than to the theory of third-party stipulation: Ph. Cahier, ‘Le problème des effets des traités à l’égard des Etats tiers', RCADI, 1974-III, vol. 143, pp 637–40. 7 See Harvard Research Commission, ‘Draft on the Law of Treaties’, AJIL, Suppl. 1935, Part III, p 936: ‘Obviously, if a treaty stipulation for the benefit of a third State lays down conditions under which the benefit is offered, compliance with those conditions by the third State is necessary before it is entitled to claim benefit’. 8 Report of the ILC on the work of its 18th session, YILC, 1966, vol. II, p 228. See also Sir H. Waldock, Third Report on the Law of Treaties, YILC, 1964, vol. II, p 21. 9 P. Reuter, Introduction au droit des traités (3rd revised edn by Ph. Cahier, Paris: PUF, 1995), no, 157, p 95. 10 See infra. In his Third Report, Sir Humphrey Waldock clearly establishes the link between the theoretical foundation of the right provided for third States and the question of the revocation of the right (YILC, 1964, vol. II, pp 20–1). The ILC has however considered that the various theoretical approaches do not lead to different answers as far as the modification or the revocation of the right is concerned (YILC, 1966, vol. II, p 229). It is clear from the reaction of the Special Rapporteur to comments made by member States that their main concern with this theoretical controversy was the possibility of modifying the right provided for the third State without its consent. For instance, the Netherlands were particularly concerned with that question when a right is conferred to all States: see Sir H. Waldock, Sixth Report on the right of treaties, YILC, 1966, vol. II, p 69. The rule of the presumed assent of the third State has limited the impact of the theoretical debate on the question of the modification and revocation of the right, and explains that Art. 37 has been easily agreed upon. 11 This point is best illustrated by the following constitutional controversy. The 1947 Paris peace treaties concluded with Italy, Rumania, Hungary, Bulgaria, and Finland each contained a waiver by which the defeated nations renounced all claims they might have as a result of the war against the allied and associated powers (on the scope of this clause, see P. d'Argent, Les reparations de guerre en droit international public. Le droit de la responsabilité internationale des Etats à l'épreuve de la guerre (Brussels: Bruylant/LGDJ, 2002), pp 265, 759). Many Finnish ships had been commandeered during the war in US ports. After the war, the question was raised whether compensation claims by the Finnish owners were admissible before US courts. Since no state of war had existed between the US and Finland, the US did not become party to the 1947 peace treaty with Finland. However, the waiver it contained seemed to benefit the US as an allied power, so as to render the compensation requests inadmissible before US courts. For various political reasons, the State Department declared that it renounced the

right provided by the waiver claim to the US. The Comptroller General opposed this view, considering that the executive branch was constitutionally incompetent to dispose of the rights conferred by the peace treaty without Congress' approval. The Comptroller General did not contest that the contracting parties were by themselves able to create a right to the benefit of the US, a third State; it just considered that renouncing the waiver boiled down to reestablishing an obligation to pay compensation, which in its view required the approval of Congress. The State Department replied that because the US was not a contracting party to the peace treaty with Finland, that treaty merely established an advantage in its favour. The Executive was free to renounce such an advantage, as long as it had not been positively and distinctly accepted. The State Department thus seemed to promote the collateral agreement approach. In view of the first arguments made by the State Department, it remains however unclear whether it really intended to contest the third-party stipulation theory central to the Comptroller General's position. As compensation to Finnish owners was provided for by legislation, no definitive conclusion can be gathered from this controversy. However, it sheds light on possible constitutional consequences of the theoretical dispute (see E. Jiménez de Aréchaga, ‘Treaty stipulations in favour of third States’, AJIL, 1956, pp 338–57; Sir H. Waldock, Third Report on the Law of Treaties, YILC, 1964, vol. II, pp 24–5; M. M. Whiteman, Digest of international law, vol. 14, pp 338–47). 12 PCIJ (1932), Series A/B, no. 24, 1932, pp 147–8. 13 It is then up to the judge to verify such intent: US Court of Appeal, Fifth Circuit, US v Cadena and Others, 14 November 1978, ILR, vol. 91, p 467. In this case, the Court refused to declare contrary to the 1958 Geneva Convention on the High Seas the arrest, in the high seas, of Columbian sailors trafficking drugs. The Court ruled that nothing proved the intent of the contracting parties to provide rights to third States (Columbia in casu)—a necessary condition, according to the Court, for the nationals of the third States to benefit from the treaty. The Court referred to Art. 36 of the Vienna Convention and considered: The treaty is not an act of disinterested benevolence for the peoples of the world. There is no indication in the treaty, or elsewhere, that it was intended to confer rights on non-nations or on vessels of non-member nations, let alone on citizens of nonmember nations. 14 Ch. L. Rozakis, ‘Treaties and Third States: a study in the reinforcement of the consensual standards in international law’, ZaöRV, 1975, p 17. 15 Official Records, CRA, 1st session, 35th meeting, 23 April 1968, p 212. 16 See also Official Records, CRA, 2nd session, 28th meeting, p 168. 17 Report of the ILC on the work of the second part of its 17th session, YILC, 1966, vol. II, p 228. 18 See supra n 11. R. Ago contested that such provisions provided rights to the benefit of third States, considering that the waivers expressed the agreement of the defeated States not to present any reparation claims, even to non-contracting parties. This would result in an obligation towards the contracting parties, and an advantage but not a right for the third States: Official Records, CRA, 18th session, 854th meeting, YILC, 1966, vol. I, Part Two, p 79. For other examples, see also Ph. Cahier, supra n 6, 621–30. 19 Footnotes of the ILC report include references to the South West Africa cases (ICJ Reports 1962, pp 329–31 and 409, Separate Opinion of Judge Jessup) and the Northern Cameroon case (ICJ Reports 1963, p 29). The Commission acknowledges the specific character of these stipulations, since those rights were conferred by one member of the organization to the others. 20 See 734th meeting et al: YILC, 1964, vol. I, pp 66–7. 21 Sir Humphrey Waldock, Third Report on the Law of Treaties, YILC, 1964, vol. II, pp 26–34. 22 See 738th, 739th, and 740th meetings, YILC, 1964, vol. I, pp 96–109. It appears that only Mr Rosenne agreed with the Special Rapporteur on the concept of treaties creating ‘objective regimes’: ibid, pp 103–4. 23 See the commentary of the concept in Ph. Cahier, supra n 6, pp 660–79. 24 Official Records, CRA, 1st session, 35th meeting, p 213. 25 Opinion by Mr Negulesco, PCIJ, Free Zones, Series A, no. 22, p 37. 26 Sir Humphrey Waldock, Third Report on the Law of Treaties, YILC, 1964, vol. II, p 25, para. 21. 27 See also Harvard Research Commission, ‘Draft on the Law of Treaties’, AJIL, Suppl. 1935, Part III, p 935 and Sir Gerald Fitzmaurice, Fifth Report on the Law of Treaties, YILC, 1960, vol. II, Art 20, paras 2, 76, and 98, para. 86, quoting the Harvard project. See also E. Roucounas, ‘Le traité et les Etats tiers (quelques approches subjectives et objectives)’, RHDI, 1964, p 317; Ph. Cahier, supra n 6, p 637. 28 The identification of the third State may result from the object of the treaty or its political context: see P.-F. Smets, Les effets des traités internationaux à l'égard des Etats tiers, Université de Paris, Institut des Hautes études internationales, 1965–1966, p 49. 29 Ph. Cahier, supra n 6, p 638. 30 Report of the ILC on the work of its 18th session, YILC, 1966, vol. II, p 228. Sir Humphrey Waldock was very firm in his conviction, considering that by using the words ‘which the latter has accepted as such’ in the Free Zones case, the PCIJ did not intend to suggest that no right can exist by virtue of a treaty without the consent of the third State: see Third Report on the Law of Treaties, YILC, 1964, vol. II, pp 21 and 26.

31 See 734th to 738th meetings: YILC, 1964, vol. I, pp 66 ff. 32 Sir Humphrey Waldock, Sixth Report on the Law of Treaties, YILC, 1966, vol. II, p 70. 33 The logic of the third-party stipulation theory would however mean that the beneficial third State cannot escape the fact that a right arises from the treaty in its favour: therefore, it cannot ‘refuse’ it, but can only ‘renounce’ it after having received it against its will: see the remarks of R. Ago (Official Records, CRA, 18th session, 854th meeting, YILC, 1966, vol. I, Part Two, p 76). R. Ago opposed the third-party stipulation theory, considering that no general rule of international law external to the treaty allowed for the extension of the benefit of a right enshrined in the treaty to a third party. He was indeed of the opinion that in domestic legal orders, it was by virtue of a specific statutory rule, and not by the contract itself, that contracts could contain third-party stipulations. 34 Report of the ILC on the work of its 18th session, YILC, 1966, vol. II, p 229. On the possible exceptional circumstances, see supra n 11. 35 See also R. G. Wetzel, Verträge zu Gunsten und zu Lasten Dritter nach der Wiener Vertragsrechtskonvention (Göttingen: Institut für Völkerrecht der Universität Göttingen, Band 15, 1973), pp 96–111. 36 Sir Humphrey Waldock, Third Report on the Law of Treaties, YILC, 1964, vol. II, p 20. 37 Report of the ILC covering the work of its 16th session, YILC, 1964, vol. II, p 182: ‘the State expressly or impliedly assents thereto’. 38 See the reactions of the member States and the comments of the Special Rapporteur in his Sixth Report on the Law of Treaties, YILC, 1966, vol. II, p 68. 39 Report of the ILC on the work of its 18th session, YILC, 1966, vol. II, p 229. 40 Official Records, CRA, 18th session, 855th meeting, YILC, 1966, vol. I, Part Two, p 81, para. 20. The amendment submitted by R. Ago referred to an ‘indication to the contrary’. 41 Official Records, CRA, 18th session, 854th meeting, YILC, 1966, vol. I, Part Two, p 75, para. 49. P. Reuter suggested drafting the provision so that the right is created to the benefit of the third State, unless it refuses it expressly or impliedly. 42 A/CONF.39/C.1/L.224, Vienna Conference, Report of the Committee of the Whole on its work at the 1st session of the Conference, A/CONF.39/14, at p 166. 43 Ibid, p 165. 44 By 46 votes against, 25 in favour, and 17 abstentions: Official Records, CRA, 1st session, 35th meeting, p 213. 45 Ibid, 212. 46 See the Japanese amendment (A/CONF.39/C.1/L.218) which was upheld by the Drafting Committee, placing it for reasons of fluidity at the end of the second sentence of para. 1 (Official Records, CRA, 1st session, 74th meeting, 16 May 1968, p 482). 47 See the intervention of M. Fukigaki (Japan), during the 35th meeting of 23 April 1968, op. cit., p 210. 48 On the difference between ‘assent’ and ‘consent’, see also Ch. L. Rozakis, supra n 14, p 19. 49 Official Records, CRA, 18th session, 855th meeting, YILC, 1966, vol. I, Part Two, p 81, para. 24. 50 See however the difficulty mentioned supra as far as the scope of the Japanese amendment is concerned. 51 The consent expressed thereafter is therefore just the confirmation of a previous and presumed assent, as shown by J.-F. Prevost, ‘Les effets des traités conclus entre Etats à l’égard des tiers', thesis, Paris II, 1973, pp 219–30. 52 See Arts 56 et al of the Convention. 53 Sir Humphrey Waldock, Third Report on the Law of Treaties, YILC, 1964, vol. II, p 26, para. 22. This seems a fortiori the case if, contrary to the Special Rapporteur, one favours the theory of the collateral agreement. 54 Ibid, p 20 and p 26, para. 24. 55 Report of the ILC on the work of its 18th session, YILC, 1966, vol. II, pp 228 and 229, para. 8. 56 Official Records, CRA, 2nd session, 14th meeting, p 66. 57 Sir Humphrey Waldock, Third Report on the Law of Treaties, YILC, 1964, vol. II, p 28, para 7; see also p 26, para. 22. 58 See the declaration of M. Castrén (Official Records, CRA, 18th session, 854th meeting, YILC, 1966, vol. I, Part Two, pp 74–5, para. 46). 59 Sir Humphrey Waldock, Third Report on the Law of Treaties, YILC, 1964, vol. II, p 28, para. 7; see also p 26, para. 24. 60 Report of the ILC on the work of its 18th session, YILC, 1966, vol. II, p 229, para. 8. 61 Sir Humphrey Waldock, Sixth Report on the Law of Treaties, YILC, 1966, vol. II, p 69. 62 Ibid, pp 70–1 and Report of the ILC on the work of its 18th session, YILC, 1966, vol. II, p 229, para. 8. 63 Declaration of Sir Humphrey Waldock (Official Records, CRA, 18th session, 855th meeting, YILC, 1966, vol. I, Part Two, p 80, para. 11). See also supra Art. 20, para. 3 suggested by Sir Gerald Fitzmaurice, Fifth Report on the Law of Treaties, YILC, 1960, vol. II, Art 20, paras 3,

81, and 103, para. 87: ‘…the claiming third State has a direct right of recourse against the Parties to the treaty, acting in its own name and of its own motion, if the provisions of the treaty concerning the third State are not carried…’ * Professor, University of Louvain.

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Volume I, Part III Observance, Application and Interpretation of Treaties, s.4 Treaties and Third States, Art.36 1986 Vienna Convention Pierre d'Argent From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Treaties, effect for third states

(p. 941) 1986 Vienna Convention Article 36 Treaties providing for rights for third States or third organizations 1. A right arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to accord that right either to the third State, or to a group of States to which it belongs, or to all States, and the third State assents thereto. Its assent shall be presumed so long as the contrary is not indicated, unless the treaty otherwise provides. 2. A right arises for a third organization from a provision of a treaty if the parties to the treaty intend the provision to accord that right either to the third organization, or to a group of international organizations to which it belongs, or to all organizations, and the third organization assents thereto. Its assent shall be governed by the rules of the organization. 3. A State or an international organization exercising a right in accordance with paragraph 1 or 2 shall comply with the conditions for its exercise provided for in the treaty or established in conformity with the treaty. 1. The principles laid down in Article 36 of the 1969 Vienna Convention are reproduced mutatis mutandis in Article 36 of the 1986 Vienna Convention. The only difference between the two texts relates to the assent of the third organization to the rights that are conferred to it: the assent ‘shall be governed by the rules of the organization’, whereas the assent of the third States ‘shall be presumed so long as the contrary is not indicated’. 2. According to Article 2, paragraph 1(h)(ii), a ‘third organization’ means an international organization which is not party to the treaty conferring the rights in question. 3. Article 36, paragraph 2 of the 1986 Vienna Convention applies when a third organization benefits from a right flowing from a treaty, even if no other international organization is bound by that treaty. As soon as one international organization is bound by a treaty conferring a right to a third State, Article 36, paragraph 1 of the 1986 Vienna Convention applies. When the treaty is only binding upon States and confers rights only to (a) third State(s), Article 36 of the 1969 Vienna Convention applies. Hence, despite their similar wording, both Articles 36 of the 1969 and 1986 Vienna Conventions relate to different factual situations. 4. As mentioned already, paragraph 2 of Article 36 states that the assent of the third organization ‘shall be governed by the rules of the organization’. At first, this was not envisaged by the Special Rapporteur, who suggested duplicating the formula of the presumed assent, as provided for by Article 36 of the 1969 Vienna Convention.1 Following some debate at the ILC,2 it was soon agreed that referring to the rules of the organization (p. 942) was adequate.3 The ILC comment underlines that ‘this stricter regime is justified by the fact that the international organization has not been given unlimited capacity and that, consequently, it is not possible to stipulate that its consent shall be presumed in respect of a right’.4 In a footnote, the commentary adds: it is possible to go even further and to argue that the very idea of a right, in the sense of a ‘subjective right,’ of an organization seldom corresponds to reality. The ‘rights’ of an organization correspond to ‘functions,’ which the organization is not at liberty to modify. In other words, the exercise by an organization of certain ‘rights’ is generally also a matter of performing an ‘obligation,’ at least in regard to its members, and for that reason the situation of an organization cannot be fully equated with that of a State.5 5. Recalling the fact that the third organization's assent is governed by its rules was considered ‘particularly necessary since the Vienna Convention [of 1969] does not define the legal theory that justifies the effects of consent’.6 The reference made to the rules of the organization implies that the 1986 Convention ‘lays down no special conditions as to the means whereby such consent is to be expressed’, though such consent is ‘never presumed’.7 Since the rules of the third organization govern its assent, such rules may provide for a tacit consent. 6. Article 36 of the 1986 Vienna Convention does not provide for specific rules when an international organization is party to a treaty conferring a right to a third party, be it either a State or another international organization. The participation of an organization to such a treaty is of course also governed by ‘the rules of the organization’, and those rules must be scrutinized to determine whether its consent has been validly expressed, especially when the right conferred upon the third party directly affects the organization. *

PIERRE D'ARGENT

Footnotes: 1 P. Reuter, Sixth Report on the Law of Treaties, YILC, 1977, vol. II, Part One, p 128. 2 Official Records, CRA, 29th session, 1440th meeting, YILC, 1977, vol. I, pp 132–4; see among others the comments of Messrs Ouchakov, Schwebel, Dadzie, and Riphagen. The latter, referring to the principle of the presumption of assent in the absence of any indication to the contrary, cited the example of the treaty between the French Republic and the Federal Republic of Germany relating to the Saar (1956), which had provided that

certain decisions concerning the administration of that territory should be taken by the Council of the Western European Union according to a specific system of voting, which was admissible under the constituent instrument of that international organization. M. Riphagen considered that if the presumption of assent was applied to the treaty, ‘it would not have been necessary for the organization to take any decision at all, since it would have been bound in the exercise of its powers by the provisions of the treaty’, when ‘in fact, the members of the Western European Union had made an agreement inter se accepting the functions and system of voting provided for in the treaty between France and the Federal Republic of Germany’. According to M. Riphagen, this example served to corroborate the reservations of other members of the Commission regarding the rule of the presumed assent as applied to third organizations (ibid, p 134). 3 Official Records, CRA, 30th session, 1510th meeting, YILC, 1978, vol. I, p 193. All the same, the possibility of according rights to international organizations belonging to a group, or to all international organizations, which was considered unrealistic by the Special Rapporteur at the 1440th meeting, was added to align paras 1 and 2 of the Article in discussion on the text of the 1969 Convention. 4 Report of the ILC on the work of its 34th session, YILC, 1982, vol. II, Part Two, p 43; the text reproduces the commentary contained in the Report of the ILC on the work of its 30th session, YILC, 1978, vol. II, Part Two, p 133. 5 Ibid, respectively fns 101 and 618. 6 Report of the ILC on the work of its 34th session, YILC, 1982, vol. II, Part Two, p 43, referring to the theory of third-party stipulation or of the collateral agreement; see supra, the commentary on Art. 36 of the 1969 Convention. 7 Report of the ILC on the work of its 34th session, supra n 6, p 43. * Professor, University of Louvain.

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Volume I, Part III Observance, Application and Interpretation of Treaties, s.4 Treaties and Third States, Art.37 1969 Vienna Convention Pierre d'Argent From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Treaties, amendments and modification — Treaties, effect for third states — Customary international law

(p. 943) 1969 Vienna Convention Article 37 Revocation or modification of obligations or rights of third States 1. When an obligation has arisen for a third State in conformity with article 35, the obligation may be revoked or modified only with the consent of the parties to the treaty and of the third State, unless it is established that they had otherwise agreed. 2. When a right has arisen for a third State in conformity with article 36, the right may not be revoked or modified by the parties if it is established that the right was intended not to be revocable or subject to modification without the consent of the third State. A. General characteristics 943 Object 943 Customary status 944 B. Revocation or modification of obligations of third States 944 C. Revocation or modification of rights of third States 945

Bibliography See the bibliography under Articles 35 and 36

A. General characteristics Object 1. This Article specifies the conditions under which parties to a treaty may revoke or modify the obligations (para. 1) or the rights (para. 2) conferred by this Treaty to third States. 2. According to Article 36, paragraph 2, the third State must comply with the conditions set by the treaty when exercising its right. Even if those conditions appear to be obligations for the third State, their modification is not governed by paragraph 1 of Article 37 but by paragraph 2 of the same provision, since those conditions affect the enjoyment of the conferred right (see supra, commentary on Art. 36). 3. Article 37 does not govern the modification or termination of the provision conferring the right or the obligation to the third State, following either the withdrawal of one contracting party (Arts 54–6) or the suspension or termination of the treaty by application of the general rules of the law of treaties (Arts 57–64). The modification or revocation of the treaty provision giving rise to the right or to the obligation of the third party is solely a matter of concern between the contracting parties, whereas Article 37 deals with the relations between the contracting parties and the third State(s).1 The contracting (p. 944) parties and the third State(s) may always agree on different conditions from the ones provided for by Article 37 when contemplating the modification or revocation of the conferred right or obligation.

Customary status 4. Article 37 reflects conceptual and logical considerations more than a faithful observation of international practice, which in reality is rather scarce. In the first draft provisionally adopted by the ILC in 1964, the revocation or modification of rights and obligations were subject to the same rule. According to this draft provision, the third State always had to assent to the revocation or modification of its right or of its obligation, ‘unless it appears from the treaty that the provision [giving rise to those rights or obligations] was intended to be revocable’.2 Some States considered that the provision was superfluous or badly drafted; others argued that the proposed rule was far too protective of the third State, so that it would unnecessarily discourage contracting parties from conferring rights to third States.3 Because of this criticism, the ILC decided in 1966 to develop different legal regimes for the modification/revocation of rights as opposed to obligations.4 The reviewed Article 37 was adopted by the Vienna Conference under the same conditions as Article 36 (100 votes in favour, none against, and no abstention).5 This very broad acceptance of the drafted rule does not mean that it unquestionably reflected international custom, as the Reports of Sir Humphrey Waldock and the ILC debates do not refer to abundant practice but rather to logical considerations. Moreover, some States—notably the Netherlands—contested the ILC's proposal until the very end.6 Hence, it is reasonable to consider that, through its adoption, Article 37 contributed to a progressive development of international law rather than reflecting international custom. Lacking international practice since then, it is difficult to affirm that Article 37 embodies a customary rule today. Nevertheless, much like Article 36 to which it is logically paired, Article 37 would most probably be ‘acceptable’ to States not bound by the Vienna Convention.

B. Revocation or modification of obligations of third States 5. According to Article 37, paragraph 1, the obligation arising from a treaty for a third State

‘may be revoked or modified only with the consent of the parties to the treaty and of the third State, unless it is established that they had otherwise agreed’. The provision is applicable when the third State intends to modify or revoke the obligation but also (p. 945) when the contracting parties wish to do so. The assent of the contracting parties is logically necessary when the third State wishes to modify or revoke the obligation, as the third State is obliged towards the contracting parties. When the contracting parties intend to modify or revoke the obligation, the situation is less clear,7 because the revocation of an obligation bearing on the third State seems all the more advantageous to it.8 Nevertheless, considering that ‘a third State's obligation is likely to involve a more complex relation’,9 the ILC found it desirable to require the third State's assent for the modification or revocation of its obligation. This seems normal, as the third State may have entered other legal relations or may have somehow committed itself to others in order to fulfil its obligation. 6. Article 37, paragraph 1 does not specify how the consent of the contracting parties and of the third State must be expressed. What matters is that the consent exists, whatever its form. Consent can therefore be tacit. However, when the modification of the third State's obligation results in a heavier duty, it is logical to require its express and written consent, as required by Article 35.10 7. The consent of the contracting parties and of the third State is required ‘unless it is established that they had otherwise agreed’: in providing so, Article 37, paragraph 1 distributes the burden of proof between the States that are interested in the modification/revocation of the obligation and those that are not. It is for the former category, namely those States interested in the revocation/modification of the obligation without the consent of the contracting parties and of the third State, to establish ‘that they had otherwise agreed’. ‘They’ refers not only to the contracting parties but also to the third State. 8. By requiring the consent of the third State in order to modify or revoke obligations arising from treaties by which it is not bound, Article 37 confirms the theory of the collateral agreement as foundation of those obligations. In principle, Article 37, paragraph 1 is not concerned with the modification or revocation of the treaty provision stipulating the obligation of the third State.11 However, as the obligation laid out in the treaty can only be binding on the third State with its explicit and written consent, a conventional relation, collateral to the treaty, arises from such consent. Any change or revocation of that collateral relation requires, according to Article 37, paragraph 1, the consent of the States concerned. Nevertheless, it is difficult to affirm that this collateral relation can only be altered according to Article 37, paragraph 1, and not by other causes such as a fundamental change of circumstances or a substantial breach.

C. Revocation or modification of rights of third States 9. According to Article 37, paragraph 2, a right arising from a treaty for a third State ‘may not be revoked or modified by the Parties if it is established that the right was (p. 946) intended not to be revocable or subject to modification without the consent of the third State’. This rule only governs the modification or revocation of the third State's right as decided by the contracting parties, not the modification or revocation desired by the third State itself.12 This does not mean that the third State is forced to benefit from the conferred right, as it may always decide not to exercise such a right, and it is not necessary in such a case for the third State to renounce the benefit of the right.13 10. This provision aims to establish a balance between a certain flexibility in favour of the contracting parties—without which they would hesitate to confer rights in favour of third States—and the need for legal certainty for the beneficiary third States. The search for such a balance was central during the ILC debates on the issue, as the members in favour of the collateral agreement theory and those upholding the third-party stipulation (see commentary on Art. 36) set aside their differences when dealing with the question of the modification or revocation of the third State's right.14 Indeed, if one considers that the third State's consent is necessary for its right to exist, the contracting parties are free to modify the treaty provision so long as this consent is not given. However, when such consent exists—Articles 36 presumes it—a distinct consent of the third State seems necessary to modify or revoke its right. On the other hand, if one considers that the third State's right arises directly from the treaty, it must be considered irrevocable without the third State's consent, because such a right would otherwise lose its legal stability and hence its very legal nature.15 Thus, both schools of thought converged in requiring the consent of the third State when dealing with the issue of the modification or revocation of its right. This legal requirement must nevertheless be balanced with a practical consideration, according to which it is desirable not to discourage States from contracting treaties conferring rights to third States, especially to all States—as underlined by Judges Altamira and Hurst in their Dissenting Opinion in the Free Zones case.16

References 11. The rule of Article 37, paragraph 2 means that the right of the third State can freely be modified or revoked by the contracting parties without the consent of the third State, as long as it is not established that the right was ‘intended not to be revocable or subject to modification’ without such consent. For this reason, and like paragraph 1, paragraph 2 of Article 37 contains a rule on the burden of proof: it is for the third State to establish that its right was ‘intended’ to be irrevocable or immutable without its consent. However, nothing prevents the contracting parties from circumventing Article 37, paragraph 2 from the start by specifying in the treaty or during negotiations with the third State that they may freely modify or revoke the right.17 When the parties have not done so, some authors consider that Article 37, paragraph 2 establishes—especially when erga omnes rights are conferred by the treaty—a

presumption according to which the consent of the third State is needed to modify or revoke the right.18 Such presumption is (p. 947) questionable when compared to the text of Article 37, paragraph 2, which seems on the contrary to affirm the freedom of the contracting parties unless it is established that the consent of the third State is required.19 12. What does the Convention mean by the condition that the third State's right ‘was intended not to be revocable or subject to modification without [its] consent’? The reference made in the English version of the Convention to an ‘intention’ means that the subjective intention of the parties, possibly in their dealings with the beneficiary third State, is paramount. When such common intention is not proved, however, nothing prevents the third State from deducing the irrevocable character of its right from more objective elements, such as its very nature or the general context of the treaty. The rather more objective tone used in the French version of Article 37, paragraph 2 allows for such consideration,20 as well as the commentary of the ILC, which reads as follows: the irrevocable character of the right would normally be established either from the terms or nature of the treaty provision giving rise to the right or from an agreement or understanding arrived at between the Parties and the third State.21 13. The actual exercise of the right by the beneficiary third State is neither a condition for the existence of such a right, given that Article 36 provides for the rule of the presumed assent, nor a cause of limitation of the freedom of the contracting parties to modify or revoke the right. During the Vienna conference, the Netherlands introduced an amendment according to which the right of the third State could not be revoked by the parties, if it was established that it was not intended to be revocable without its consent and if the third State had actually exercised the said right in conformity with the conditions of its exercise.22 The purpose of such an amendment was to ensure greater freedom for the contracting parties, by preventing a third State that did not actually exercise its right from interfering in its modification or revocation. The amendment was not put to the vote, because the Netherlands decided to withdraw it.23 One may thus consider that the non-exercise of its right by a third State does not increase or limit the freedom of the contracting parties to modify or revoke it. *

PIERRE D'ARGENT

Footnotes: 1 Report of the ILC on the work of its 18th session, YILC, 1966, vol. II, p 230. 2 See Sir H. Waldock, Third Report on the Law of Treaties, YILC, 1964, vol. II, pp 20 and 26, para. 23; Report of the ILC on the work of its 16th session, YILC, 1964, vol. II, p 184: Report of the ILC on the work of its 18th session, YILC, 1966, vol. II, p 230. 3 Sir H. Waldock, Sixth Report on the right of treaties, YILC, 1966, vol. II, pp 71–3. In his report, Sir Humphrey suggested that the parties be able to terminate the obligation by mere notification, but stated that the consent of the third party would be required for the modification of the obligation. 4 Report of the ILC on the work of its 18th session, YILC, 1966, vol. II, p 230. 5 Official Records, CRA, 2nd session, 14th meeting, p 67. 6 See the Netherlands' opinion, summarized by Sir H. Waldock, Sixth Report on the right of treaties, YILC, 1966, vol. II, pp 71–2; see also the amendment suggested by the Dutch government at the Vienna Conference (see references infra, para. 13 and n 22). 7 Report of the ILC on the work of its 18th session, YILC, 1966, vol. II, p 230. 8 This was precisely the position of the Special Rapporteur in his Third Report, who therefore considered only the modification or revocation of rights: Sir H. Waldock, Third Report on the Law of Treaties, YILC, 1964, vol. II, pp 20 ff. 9 Report of the ILC on the work of its 18th session, YILC, 1966, vol. II, p 230. 10 In his Sixth Report, Sir Humphrey Waldock suggested that a mere notification by the contracting parties could be enough in order to revoke the third State's obligation, as such revocation is advantageous, whereas the modification of its obligation would require its consent (see supra n 3). 11 See supra para. 3. 12 Report of the ILC on the work of its 18th session, YILC, 1966, vol. II, p 230. 13 In this sense, see A. Aust, Modern treaty law and practice (2nd edn, Cambridge: Cambridge University Press, 2007), p 259. On the renunciation of the conferred right by the third beneficiary, see commentary on Art. 36, at paras 21 ff. 14 See Ph. Cahier, ‘Le problème des effets des traités à l’égard des Etats tiers', RCADI, 1974III, vol. 143, p 635. 15 Report of the ILC on the work of its 18th session, YILC, 1966, vol. II, p 230. 16 PCIJ (1932), Series A/B, no. 24, 1932, p 185. 17 Report of the ILC on the work of its 18th session, YILC, 1966, vol. II, p 230. 18 See A. Aust, supra n 13, p 259; see commentary on Art. 36 on the renunciation of the conferred right by the third beneficiary. 19 P. Reuter, Introduction au droit des traités (3rd revised edn by Ph. Cahier, Paris: PUF, 1995), p 97, n 160. 20 The French version refers to the fact that it must be established that the third State's right was ‘destiné’ not to be revocable or modifiable without its consent.

21 Report of the ILC on the work of its 18th session, YILC, 1966, vol. II, p 230. 22 A/CONF.39/C.1/L.225, Report of the Committee of the Whole on its work at the 1st session of the Conference, A/CONF.39/14, pp 166–7. 23 Official Records, CRA, 1st session, 35th meeting, p 213. * Professor, University of Louvain.

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Volume I, Part III Observance, Application and Interpretation of Treaties, s.4 Treaties and Third States, Art.37 1986 Vienna Convention Pierre d'Argent From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Treaties, effect for third states — Treaties, amendments and modification

(p. 948) 1986 Vienna Convention Article 37 Revocation or modification of obligations or rights of third States or third organizations 1. When an obligation has arisen for a third State or a third organization in conformity with article 35, the obligation may be revoked or modified only with the consent of the parties to the treaty and of the third State or the third organization, unless it is established that they had otherwise agreed. 2. When a right has arisen for a third State or a third organization in conformity with article 36, the right may not be revoked or modified by the parties if it is established that the right was intended not to be revocable or subject to modification without the consent of the third State or the third organization. 3. The consent of an international organization party to the treaty or of a third organization, as provided for in the foregoing paragraphs, shall be governed by the rules of that organization. 1. The principles laid down in Article 37 of the 1969 Vienna Convention are reproduced mutatis mutandis in Article 37 of the 1986 Vienna Convention. According to the ILC commentary, this provision ‘establishes as a regime of ordinary law a regime identical to that of the Vienna Convention’ of 1969.1 The only difference between the two provisions relates to the consent of the international organization, be it either party to the treaty establishing the right or the obligation, or a third party to such a treaty: in each case, the consent of the organization ‘shall be governed by the rules of that organization’. This is rather elementary and reflects the specialized character of the legal personality of the organization. It is of course not for the Vienna Convention but for the rules (primary or derived) of the organization to regulate the forms of its consent. *

PIERRE D'ARGENT

Footnotes: 1 Report of the ILC on the work of its 34th session, YILC, 1982, vol. II, Part Two, p 47. One must note that Art. 37, as adopted by the ILC, contained five paragraphs, the last one concerning the international organization's consent and the others referring to the situations governed by paras 1 and 2 of the Articles under discussion, which became Arts 35 and 36. The Convention simplified matters in this respect. One might however be surprised by a term used in the French version of Art. 37, para. 1: the ‘they’ in ‘unless it is established that they had otherwise agreed’ is translated as ‘elles’. The use of the feminine pronoun supposes the situation where a third international organization is debtor of the obligation, according to a treaty between international organizations, between States or between States and international organizations (‘les parties’, ‘the parties’). However, this situation is not the only one governed by Art. 37, para. 1: this provision also applies, among others, to cases where an organization is party to a treaty with States, which creates an obligation for a third State. In this situation, the consent of the third State would lead to the global use of the masculine in the sentence, even if ‘les parties’ is feminine. * Professor, University of Louvain.

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Volume I, Part III Observance, Application and Interpretation of Treaties, s.4 Treaties and Third States, Art.38 1969 Vienna Convention Giorgio Gaja From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Treaties, binding force — Treaties, effect for third states — Customary international law

(p. 949) 1969 Vienna Convention Article 38 Rules in a treaty becoming binding on third States through international custom Nothing in Articles 34 to 37 precludes a rule set forth in a treaty from becoming binding on a third State as a customary rule of international law, recognized as such. A. General features 949 Object and purpose: the safeguard of new rules of customary law 949 The actual import of the safeguard clause 953 B. Transformation of treaty rules into rules of customary law 954 C. The question of treaties establishing an objective regime 956

Bibliography Cahier, Ph., ‘Le problème des effets des traités à l'égard des Etats tiers’, RCADI, 1974III, vol. 140, pp 589–735 Chinkin, Ch., Third Parties in International Law (Oxford: Clarendon Press, 1993) Klein, E., Statusverträge im Völkerrecht (Berlin, Heidelberg, New York: Springer-Verlag, 1980) Rozakis, Ch. L., ‘Treaties and Third States: a Study in the Reinforcement of the Consensual Standards in International Law’, ZaöRV, 1975, pp 1–40 Schweisfurth, Th., ‘International Treaties and Third States’, ZaöRV, 1985, pp 653–74 Tomuschat, Ch., ‘Völkerrechtlicher Vertrag und Drittstaaten’, 28 Berichten der Deutschen Gesellschaft für Völkerrecht (Heidelberg: C. H. Müller, 1988), pp 9–49 Villiger, M. E., Customary International Law and Treaties (2nd edn, The Hague: Kluwer Law International, 1997)

A. General features Object and purpose: the safeguard of new rules of customary law 1. Essentially, Article 38 is a safeguard clause. It does not purport to state any effect that may be attributed to a treaty. It rather pursues the object of making it clear that other Articles in section 4 of Part III of the Vienna Convention do not carry the implication of certain consequences with regard to rules of international customary law. In particular, Article 38 is intended to specify that an obligation, which is set out in a treaty, may arise for a third State under a customary rule even if the conditions stated in Article 36 are not fulfilled. The ILC had expressed this purpose in its commentary on the corresponding draft Article that was adopted on second reading: it decided to include in the present Articles a general reservation stating that nothing in those Articles precludes treaty rules from becoming binding on non-parties as customary rules of international law. The Commission decided to emphasize that the provision in the present Article is (p. 950) purely and simply a reservation designed to negative any possible implication from Articles 30 to 33 [Articles 34 to 37 of the Convention] that the draft Articles reject the legitimacy of the above-mentioned process.1 2. The need to include such a safeguard clause in the Vienna Convention was not self-evident. One could in particular object that the issue of the formation of customary rules does not relate to the law of treaties and should therefore not be addressed in the Convention. This explains, at least to a large extent, the proposals that were made by certain governments2 in order to delete the provision that finally became Article 38. Formal amendments to this effect were put forward by Finland3 and Venezuela4 during the first session of the Vienna Conference. They were however rejected by a large majority in the Plenary Committee.5 In the second session of the Conference some further attempts to delete the same provision were made, but again to no avail.6 The majority opinion within the Conference was clearly in favour of retaining the text. The prevailing view appears to have been that, even if the provision was not strictly necessary, it considered a possibility that was sufficiently important, especially with regard to codification conventions. 3. If one accepts that Article 38 does not produce any new legal effect, but only represents a safeguard clause, it is difficult to understand the purpose of the reservation made by Guatemala to the effect that ‘it would apply the provisions contained in Article 38 of the Convention only in cases where it considered that it was in the national interest to do so’.7 Objections to this reservation were made by Austria, Denmark, and Sweden: each State considered that the reservation called into question ‘well-established and universally accepted norms’.8 In fact, these objections were not accurately worded, since Article 38 as such does not reflect any customary rule. As noted supra, it is rather a safeguard clause concerning a phenomenon that arises independently from the Convention and that the reservation by Guatemala clearly cannot prevent. 4. The scope of the safeguard clause could have been wider. It could have covered the

formation of any rule of international law—whatever its source—that corresponds to a rule stated in a treaty. The safeguard could thus have included rules of international law other than customary rules. One could, for instance, envisage the subsequent formation of a general principle of law having the same content as a treaty provision. Sir Humphrey Waldock, acting as expert counsel at the Vienna Conference, observed that ‘[i]t was hardly probable that a new principle stated in a treaty would become binding without passing through the stage of custom’.9 The limited importance of this case and the difficulty in agreeing on the nature and definition of general principles of law explain why a reference (p. 951) to those principles, although added by a narrow vote on an amendment by Mexico10 at the first session of the Conference,11 was finally deleted at the second session.12 Moreover, it is clearly implied, and thus was unnecessary to state, that a treaty rule could become binding on a third State through the effect of another treaty. The fact remains that, logically, the safeguard clause should encompass any rule of international law that becomes binding on the basis of any source of international law other than the treaty in question. 5. The text of Article 38 makes a distinction between the reproduction of an existing rule of customary law in a treaty and the formation of a rule of customary law subsequent to the treaty. The safeguard clause only applies to the latter case. During the preparatory work, various attempts were made to widen the reference to customary law in order to cover both cases. The ILC Special Rapporteur, Sir Gerald Fitzmaurice, had included in a single provision the case of treaties that ‘evidence, declare or embody legal rules or legal régimes which are, or eventually become, recognized as being of universal validity and application’.13 The text proposed by the subsequent Special Rapporteur, Sir Humphrey Waldock, appeared to focus on new customary rules.14 This restriction became sharper in the draft Article that the ILC adopted at first reading.15 Notwithstanding an attempt to extend the safeguard clause to preexisting customary rules,16 the text was in substance confirmed by the ILC at second reading and then by the Vienna Conference. It is true that it is often difficult to distinguish between the case of a treaty embodying or crystallizing a customary rule and that of the subsequent formation of a customary rule,17 since it is hard to establish the date on which a customary rule is formed.18 However, it is also (p. 952) true that under the Convention no legal effects are attached to the fact that a customary rule binding on third States existed before the treaty was concluded. Such a customary rule clearly continues to apply to the States that have not become parties to a treaty that reproduces it.

References 6. When Article 38 refers to ‘a rule set forth in a treaty …becoming binding on a third State’, it does not define the critical date from which a rule of customary law is covered by the safeguard clause. According to the wording of the Article, the critical date appears to be the one on which the treaty enters into force for the States parties, since only at that time could another State be considered a third State in relation to the treaty. According to Article 2, paragraph 1(h) and (g), ‘third State’ is defined as ‘a State not party to the treaty’ and ‘party’ as ‘a State which has consented to be bound by the treaty and for which the treaty is in force’. A customary rule corresponding to a treaty provision could be formed after the treaty was adopted but before the treaty entered into force. Such a customary rule would not be covered by the safeguard clause; it would bind third States in the same way as any other customary rule that was formed before the treaty was concluded. As was already noted, the restriction of the temporal scope of the safeguard clause does not affect the applicability of customary rules with regard to third States. 7. Article 38 does not make a distinction between universal customary rules and regional or local customary rules.19 This does not imply that the conditions for the formation of universal customary rules are necessarily identical to those of other customary rules. The Convention does not address the question of how these rules are formed.20 During the Vienna Conference a number of States advocated a restrictive concept of the formation of customary rules and insisted on the element of recognition or acceptance of a customary rule by a State as a condition of its becoming binding for that State. This led to including in the text, on the basis of an amendment by Syria21 which was adopted by the Plenary Committee with a large majority,22 the requirement that the customary rule should be ‘recognized as such’. This wording is not without ambiguity. It is not stated that recognition should be given by each State that is the potential addressee of a customary rule. Should the requirement merely be that of general recognition, the text would be similar to Article 38, paragraph 1 of the Statute of the International Court of Justice (ICJ), which refers to ‘international custom, as evidence of a general practice accepted as (p. 953) law’. At any event, insofar as a customary rule has been formed and applies to a third State, it would be unreasonable to restrict the scope of the safeguard clause to those rules of customary law that are ‘recognized as such’ by that State. It is therefore difficult to imagine that the safeguard clause in Article 38 would not apply to a customary rule that has been formed after the treaty entered into force.

The actual import of the safeguard clause 8. As they have been drafted, the heading and text of Article 38 refer to the binding character ‘upon a third State’ of a rule which is set forth in a treaty and has become a customary rule. However, Article 38 clearly does not concern only rules that apply to a third State or to third States in their mutual relations. Customary rules referred to in Article 38 may concern both the relations of a third State with other third States and those of a third State with the States parties to the treaty. The treaty does not apply as such to any of those relations.23 Each State, whether or not a party to the relevant treaty, is bound by the rule set forth in the treaty only if a corresponding rule of customary law has been formed and applies to those relations. It is thus equally relevant to establish whether the rule has also become binding as a customary

rule upon the States parties to the treaty. Should a third State be bound by a customary rule while a State party to the treaty is not, the customary rule would not apply to their mutual relations.24 It would therefore have been more accurate to say that the safeguard clause concerns the case that a customary rule has been formed in the relations between a third State and other States. Should the customary rule be universal, the latter States would be all the other States. 9. The placement of Article 38 in Section 4 (‘Treaties and third States’) of Part III has led the drafters to consider in this Article only the effects of customary rules on the relations with third States. However, a customary rule corresponding to a rule set forth in a treaty may also be formed in the relations among States parties to the treaty.25 In its judgment on the merits in the case concerning Military and Paramilitary Activities in and against Nicaragua, the ICJ noted that there existed, in the relations between two parties to a treaty, customary rules ‘identical to those of treaty law’.26 Customary law may evolve in the wake of treaty rules even in the relations between parties to the treaty. For example, one can surmise that new customary rules have been formed following the adoption of the Vienna Convention of 1961 on Diplomatic Relations. It is reasonable to consider that these new customary rules also apply in the relations between States parties to the Convention, although it may not be easy to establish the existence, in the relations between the States parties to a treaty on a certain matter, of practice that would clearly be (p. 954) relevant for ascertaining customary law on the same matter. The coexistence of customary rules may be of a certain importance in countries in which customary rules and treaties possess a different legal status.27 It is thus difficult to understand why the safeguard clause is considered to apply to the relations between States parties and third States and not also to the relations that States parties have among themselves. Only a consideration of the practical consequences could justify the fact that the safeguard clause is expressed with regard to the more important question, namely that of the effect that customary rules produce in relation to third States, and not to the full range of issues that may arise with the formation of new customary rules.

References 10. If one accepts that the logical implications of what is stated in Article 38 are much wider than its wording suggests and that the question of supervening customary rules concerns the relations of third States among themselves, of third States with States parties, and of States parties among themselves, the placement of the provision in the section concerning third States does not seem appropriate.28 The text could have been placed next to Article 4, which contains a safeguard clause relating to the rules on the law of treaties ‘to which treaties would be subject under international law independently of the Convention’. The Article on new customary rules has a much wider scope, since it concerns rules that may arise on any subject matter. Moreover, although Article 38 refers to Articles 34 to 37 because it aims at neutralizing the consequences that one could infer from those Articles with regard to customary rules, Articles 35 to 37 concern the acquisition by a third State of a specific obligation or right on the basis of a treaty and have little in common with the object of Article 38. The latter provision considers the formation of a customary rule or legal regime that could cover the whole subject matter of the treaty. Even the principle set forth in Article 34 (‘A treaty does not create either obligations or rights for a third State without its consent’) concerns the acquisition of specific obligations or rights rather than the more general formation of rules.

B. Transformation of treaty rules into rules of customary law 11. The formation of a customary rule corresponding to a rule set forth in an earlier treaty is a phenomenon which has been often considered, in particular by the ICJ. In its judgment in the cases concerning the North Sea Continental Shelf, the ICJ discussed the argument according to which Article 6 of the Geneva Convention of 1958 on the Continental Shelf was: a norm-creating provision which has constituted the foundation of, or has generated a rule which, while only conventional or contractual in its origin, has since passed into the general corpus of international law, and is now accepted as such by the opinio juris, so as to have become binding even for countries which have never, and do not, become parties to the Convention. There is no (p. 955) doubt that this process is a perfectly possible one and does from time to time occur: it constitutes indeed one of the recognized methods by which new rules of customary international law may be formed. At the same time this result is not lightly to be regarded as having been attained.29

References 12. It is not necessary to address here the highly controversial question30 concerning the requirements for a rule stated in a treaty to become a customary rule. It may be sufficient to recall the in-depth analysis made by the ICJ in the North Sea Continental Shelf cases. After emphasizing the requirement that ‘the provision concerned should, at all events potentially, be of a fundamentally norm-creating character such as could be regarded as forming the basis of a general rule of law’,31 the Court stated: With respect to the other elements usually regarded as necessary before a conventional rule can be considered to have become a general rule of international law, it might be that, even without the passage of any considerable period of time, a very widespread and representative participation in the convention might suffice of 32

itself, provided it included that of States whose interests were specially affected.32 On this point the Court added: Although the passage of only a short period of time is not necessarily, or of itself, a bar to the formation of a new rule of customary international law on the basis of what was originally a purely conventional rule, an indispensable requirement would be that within the period in question, short though it might be, State practice, including that of States whose interests are specially affected, should have been both extensive and virtually uniform in the sense of the provision invoked; and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved.33

References 13. Time and again the ICJ found that the customary rules on the law of treaties corresponded in substance to those stated in the Vienna Convention of 1969, in particular those concerning interpretation, validity, termination, or suspension of the operation of treaties. However, the Court did not provide a demonstration justifying these conclusions. The ICJ generally said that a certain rule stated in the Vienna Convention ‘may in many respects be considered as a codification of existing customary law on the subject’34 or used similar wording. This type of statement conveys the idea that, according to the Court, the relevant customary rules were formed before the Vienna Convention entered into force. This phenomenon would thus be outside the scope of Article 38 of the Convention, which, as noted supra, only concerns customary rules that are formed after the entry into force of a treaty.

References (p. 956) 14. The ICJ placed itself in the perspective of Article 38 of the Vienna Convention in its judgment on the merits in the case concerning Military and Paramilitary Activities in and against Nicaragua, when noting that, in the matters under consideration: law has in the subsequent four decades developed under the influence of the Charter, to such an extent that a number of rules contained in the Charter have acquired a status independent of it.35 In its advisory opinion on the Threat or Use of Nuclear Weapons, the Court observed that: The extensive codification of humanitarian law and the extent of the accession to the resultant treaties, as well as the fact that the denunciation clauses that existed in the codification instruments have never been used, have provided the international community with a corpus of treaty rules the great majority of which had already become customary and which reflected the most universally recognized humanitarian principles.36 Although the criteria concerning the formation of a customary rule on the basis of a treaty rule that were stated in the passages quoted supra in the North Sea Continental Shelf cases have not since been overruled, in later decisions the Court gave scant reasons when assessing the correspondence between customary and treaty rules. The relevant case law is part of a more general trend in the Court's jurisprudence—which has been defined as pragmatic37—to give weight, when establishing the existence of customary rules, to written texts, such as multilateral treaties, declarations of principles stated by the General Assembly, or draft Articles adopted by the ILC. Also States often refer to texts that, although not binding, may be taken as having some authority and provide, with a certain precision, a statement of customary rules the content of which would be difficult to assess on the basis of an analysis of the available evidence concerning the constituent elements of customary rules. This trend, which need not be discussed here, deserves a mention in the context of a commentary on Article 38 because it contributes to give importance to the safeguard clause that this Article provides.

References

C. The question of treaties establishing an objective regime 15. The ILC held a long discussion about the existence of a category of treaties that would produce effects for third States because they had to be considered as establishing an objective regime. That category of treaties would have been characterized by the object of the treaty and by particular circumstances that would have warranted effects for third States. According to the draft Articles proposed by the Special Rapporteur, Sir Gerald Fitzmaurice, these effects would arise for treaties concerning the use of maritime or land territory of a State or the ‘use of territory placed by treaty under an international regime of common user for purposes, and on conditions, specified in the treaty, and in circumstances causing the treaty to have, or to come to be regarded as having, effect erga omnes’.38(p. 957) Moreover, according to the same draft Articles, ‘all States are under a duty to recognize and respect situations of law or of fact established by lawful and valid treaties tending by their nature to have effects erga omnes’.39 Among this second category of treaties, the draft Articles included peace treaties and ‘treaties creating a general régime or status of neutralization, or demilitarization, for particular territories or localities’.40 The subsequent Special Rapporteur, Sir Humphrey Waldock, grouped the two categories into one. According to his view, a treaty establishing an objective regime was essentially characterized by two elements: the object, which had to concern a

particular territory, river, or airspace, and the fact that any State having territorial competence with regard to the subject matter was party to the treaty or did ‘not protest against or otherwise manifest its opposition to the régime within a period of X years’.41 Sir Humphrey Waldock proposed the following definition: A treaty establishes an objective régime when it appears from its terms and from the circumstances of its conclusion that the intention of the parties is to create in the general interest general obligations and rights relating to a particular region, State, territory, locality, river, waterway, or to a particular area of sea, sea-bed, or air-space; provided that the parties include among their number any State having territorial competence with reference to the subject-matter of the treaty, or that any such State has consented to the provision in question.42 The example of a treaty establishing an objective regime that was most frequently referred to by the two Special Rapporteurs was that of Antarctica.43 The proposal made by the last Special Rapporteur with regard to treaties establishing an objective regime met various criticisms within the ILC. When defending his proposal, Sir Humphrey Waldock explained that it was made in the context of progressive development and that, if it was not adopted, ‘that type of situation would have to be left covered by custom, which was necessarily a slower process’.44 The Commission decided in 1964 not to refer this proposal to the Drafting Committee.45 In its 1966 report to the General Assembly, the Commission explained that it preferred ‘to leave the question aside’ because laying down ‘a rule recognizing the possibility of the creation of objective régimes directly by treaty might be unlikely to meet with general acceptance’: It considered that the provision in Article 32 [36 of the Convention], regarding treaties intended to create rights in favour of States generally, together with the process mentioned in the present Article, furnish a legal basis for the establishment of treaty obligations and rights valid erga omnes, which goes as far as is at present possible. Accordingly, it decided not to propose any special provision on treaties creating socalled objective régimes.46 (p. 958) Since the Vienna Conference did not take up an examination of the question of treaties establishing an objective regime, the Convention does not contain any specific provision on the matter. 16. As the International Law Commission had explained in the passage quoted supra, the silence of the Vienna Convention with regard to treaties establishing an objective regime implies that treaties may produce effects for a third State only on the basis of Articles 35 to 37 and thus with the acceptance or acquiescence on the part of that State.47 A further possibility is that a customary rule is formed with a content corresponding to a rule stated in a treaty.48 This latter possibility clearly pertains to Article 38. It does not concern effects that may be considered as being produced by a treaty. This is especially evident when the treaty ceases to be in force, while the legal situation that the treaty intended to establish remains operative under customary law. For instance, in the case concerning the Territorial Dispute (Libyan Arab Jamahirya/Chad), the ICJ stated that the ‘fundamental principle of the stability of boundaries’ implies that ‘once agreed, the boundary stands’ even when the treaty is terminated: ‘the Treaty can cease to be in force without in any way affecting the continuance of the boundary’.49 In this judgment the Court asserted the existence of a principle of customary law concerning State boundaries that have their origin in a treaty. This approach allowed the Court not to refer to the criteria for establishing the existence of a customary rule that had been identified in the North Sea Continental Shelf cases.50 Beyond the question of interstate boundaries, those criteria should be applied in order to ascertain whether a specific rule of customary law whose content corresponds to that of a treaty has been formed. *

GIORGIO GAJA

Footnotes: 1 Report of the Commission to the General Assembly, A/6309/Rev.1, YILC, 1966, vol. II, p 231. 2 See the proposals made by the government of Finland and the delegations of Greece and the Netherlands during the examination of the draft Articles, YILC, 1966, vol. II, p 74. 3 Text in Documents of the Conference, p 155, para. 312. 4 Ibid. 5 The amendments seeking to delete the provision were rejected by 63 votes to 14, with 18 abstentions. Official Records, 1st session, p 201, para. 44. 6 See the interventions of Messrs Galindo-Pohl (El Salvador), Carmona (Venezuela), Molina Orantes (Guatemala), Redondo (Costa Rica), and de la Guardia (Argentina), Official Records, 2nd session, respectively pp 65 (para. 53), 66 (para. 4), 67–8 (paras 19–25), 68 (para. 30), and 69 (paras 37–8). 7 Multilateral Treaties Deposited with the Secretary-General, Status as at 31 September 2004, p 354. 8 Ibid, respectively pp 356, 356, and 359. A similar, but more general, comment was made by Finland, ibid, p 357. 9 See the intervention by Sir Humphrey Waldock, Official Records, 1st session, p 201, para. 43. 10 Documents of the Conference, p 155, para. 312.

11 The amendment was adopted by 38 votes to 28, with 28 abstentions. Official Records, 1st session, p 201, para. 45. It had been supported by Messrs Krispis (Greece), Alcivar-Castillo (Ecuador), Ruiz Varela (Colombia), and Ibler (Yugoslavia), ibid, respectively, pp 198 (paras 6– 7), 200 (para. 33), 200 (para. 35), and 200 (para. 40). 12 The deletion of the reference to the general principles of law was adopted by 50 votes to 27, with 19 abstentions, Official Records, 2nd session, p 71, para. 57, on the basis of a proposal by Mr Sinha (Nepal), ibid, p 69, para. 39. 13 Fifth Report on the Law of Treaties by Sir Gerald Fitzmaurice, A/CN.4/130, YILC, 1960, vol. II, p 80. See also the commentary, pp 94–6. 14 Third Report on the Law of Treaties by Sir Humphrey Waldock, A/CN.4/167 and Add.1–3, YILC, 1964, vol. II, p 34. The proposed text was as follows: Nothing in Articles 61 to 63 is to be understood as precluding principles of law laid down in a treaty from becoming applicable to States not parties thereto in consequence of the formation of an international custom embodying those principles. 15 YILC, 1964, vol. II, p 184. The Commission adopted at first reading the following text: Nothing in Articles 58 to 60 precludes rules set forth in a treaty from being binding upon States not parties to that treaty if they have become customary rules of international law. 16 During the debates in the Commission Mr Ago had proposed the following text: ‘Rules stated in a treaty may be or may become binding upon States which are not parties to the treaty if they are at the time or if they become customary rules of international law’ (YILC, 1966, vol. I, Part Two, p 93, para. 89). This proposal had been supported by Mr Briggs, ibid, p 93 (para. 91). However, it was not adopted by the Drafting Committee, ibid, p 176 (para. 80). At the Conference a proposal on the same lines was made by Mr Paszkowski (Poland) and supported by Mr Ruegger (Switzerland). Official Records, 2nd session, pp 67 (paras 14–15) and 70–1 (para. 49). This proposal was not taken up by the Conference. 17 The text follows the wording of the ICJ judgment in the North Sea Continental Shelf cases, ICJ Reports 1969, p 41, para. 69. 18 See the interventions by Mr Rosenne and Mr Bartoš, YILC, 1964, vol. I, pp 110–12, paras 57 and 80, and that of Mr Ago, YILC, 1966, vol. I, Part Two, p 91, para. 70. 19 The proposal by Mr Verdross, YILC, 1966, vol. I, Part Two, p 91, paras 64–6 to insert the word ‘general’ before the words ‘international law’ was not accepted. See in particular the critical interventions by Messrs Yasseen, Jiménez de Aréchaga, Rosenne, El-Erian, and de Luna, ibid, pp 91–3, paras 74, 77, 79, 87, and 88. 20 On the basis of the judicial decisions concerning regional and local customs, Ch. L. Rozakis, ‘Treaties and Third States: a Study in the Reinforcement of the Consensual Standards in International Law’, ZaöRV, 1975, pp 31–8 held that the safeguard clause only concerns rules that have been expressly accepted. M. H. Mendelson, ‘The Formation of Customary International Law’, RCADI, 1998, vol. 272, p 327 considered that, given the reference in Art. 38 to recognition, the objective element of custom is less important in this context than it generally is when the existence of a customary rule has to be assessed. 21 Documents of the Conference, p 155, para. 312. See also the earlier comments by the delegation of Syria, YILC, 1966, vol. II, p 74. 22 The amendment was adopted by 59 votes to 15, with 17 abstentions. Official Records, 1st session, p 201, para. 46. Messrs Krispis (Greece), Zourek (Czechoslovakia), Mutuale (Democratic Republic of Congo), Teymour (United Arab Republic), Alcivar-Castillo (Ecuador), Ruiz Varela (Colombia), Yasseen (Iraq), and Ibler (Yugoslavia) supported the amendment: ibid, pp 198–200 (paras 8, 14, 22–4, 30, 33, 35, 38, and 40). In the 2nd session of the Conference Messrs Shukri (Syria), Tatalaev (Soviet Union), Carmona (Venezuela), and Biloa Tang (Cameroon) insisted on the importance of acceptance or recognition of the customary rule by third States: Official Records, 2nd session, p 65, para. 61 and p 71, paras 60, 61, and 62. 23 A unilateral delimitation of the continental shelf made by a State party to the Geneva Convention of 1958 on the continental shelf would produce effects also in relation to third States. It is only with regard to another State party that the ICJ could rightly assert in its judgment on the North Sea Continental Shelf cases that a State would be ‘acting actually or potentially in the application of the Convention’: ICJ Reports 1969, p 43, para. 76. 24 During the debates in the Commission Mr Rosenne noted that a customary rule of international law would be ‘binding for all States and not just for third States’, YILC, 1964, vol. I, p 331, para. 3. Mr Tsuruoka proposed to delete the reference to third States, but later abandoned this proposal, YILC, 1966, vol. I, Part Two, p 177, para. 92 and p 178, para. 107. 25 As was observed by Mr Bartoš, once a customary rule was formed, ‘the State parties were doubly bound’, YILC, 1966, vol. I, Part Two, p 117, para. 87. 26 ICJ Reports 1986, p 95, para. 177. 27 See T. Meron, ‘The Geneva Conventions as Customary Law’, AJIL, 1987, pp 348–9 on the relations between the Geneva Conventions of 1949 and the customary rules on international humanitarian law. 28 Messrs Rosenne, Tunkin, Castrén, and de Luna had suggested that the provision should be placed outside the context of the effects of treaties on third States, because they viewed it as more generally concerning the relations between treaty rules and customary rules, YILC, 1964, vol. I, pp 110–11, paras 59, 60, 66, and 70. See on this point the intervention by the

Special Rapporteur Sir Humphrey Waldock, ibid, p 204, para. 90. 29 ICJ Reports 1969, p 41, para. 71. 30 See in particular O. Schachter, ‘Entangled Treaty and Custom’, International Law at a Time of Perplexity. Essays in Honour of Shabtai Rosenne (Dordrecht: Martinus Nijhoff, 1989), pp 717 ff; M. E. Villiger, Customary International Law and Treaties (2nd edn, The Hague: Kluwer Law International, 1997), pp 181 ff; M. H. Mendelson, supra n 20, pp 317–46. 31 ICJ Reports 1969, pp 41–2, para. 72. 32 Ibid, p 42, para. 73. 33 Ibid, p 43, para. 74. 34 This wording appears for the first time in the Advisory Opinion on the Legal Consequences of the Continued Presence of South Africa in Namibia, ICJ Reports 1971, p 47, para. 94. The same or similar wording was used by the Court in the judgment on competence in the Fisheries Jurisdiction Case (United Kingdom v Iceland ), ICJ Reports 1973, p 14, para. 24, and in the judgments on the merits in the case concerning the Arbitral Award of 31 July 1989, ICJ Reports 1991, p 70, para. 48, and the case concerning the Gabčíkovo-Nagymaros Project, ICJ Reports 1997, p 38, para. 46. 35 ICJ Reports 1986, pp 96–7, para 181. 36 ICJ Reports 1996, p 258, para. 82. The Court expressed the same view in its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Reports 2004, p 172, para. 89. 37 See O. Schachter, supra n 30, p 722. See also Ch. Tomuschat, ‘Völkerrechtlicher Vertrag und Drittstaaten’, Berichte der Deutschen Gesellschaft für Völkerrecht, No. 28 (Heidelberg: Müller, 1988), p 18. 38 Fifth Report on the Law of Treaties by Sir Gerald Fitzmaurice, YILC, 1960, vol. II, p 79 and, for the commentary, pp 92–4. 39 Ibid, p 80 and, for the commentary, pp 97–100. 40 Ibid. 41 Third Report on the Law of Treaties by Sir Humphrey Waldock, YILC, 1964, vol. II, pp 26–7 and, for the commentary, pp 27–34. 42 Ibid, p 25. 43 According to the Fifth Report on the Law of Treaties by Sir Gerald Fitzmaurice, YILC, 1960, vol. II, pp 93–4, ‘it is difficult to believe that any non-party which, for instance, sent a scientific expedition to Antarctica, would not …consider itself, and be regarded, as bound to conform to the conditions of the user of Antarctica laid down by the Treaty’. 44 Thus the intervention by Sir Humphrey Waldock, YILC, 1964, vol. I, p 108, paras 33–4. 45 See the Report of the Commission to the General Assembly, Doc. A/5809, YILC, 1964, vol. II, p 185. 46 See the Report of the Commission to the General Assembly, Doc. A/6309/Rev.1, YILC, 1966, vol. II, p 231. According to S. Bastid, Les traités dans la vie internationale (Paris: Economica, 1985), p 153, the Commission included within the scope of Art. 38 instances of treaties that are generally considered as establishing an objective situation. 47 It is not required for States parties to have been attributed competence for this purpose, as was suggested by E. Klein, Statusverträge im Völkerrecht. Rechtsfragen territorialer Sonderregime (Berlin: Springer Verlag, 1980), pp 209–16. Should one view the effects of treaties for third States as based on their acceptance, this could be limited to the treaty as it appears when acceptance is given and not necessarily encompass subsequent modifications that parties to the treaty may adopt. Contrary to what was held by Klein (ibid, pp 211–13 and 345) the absence of objections on the part of third States would not be sufficient for a treaty regime to affect them. 48 See Ph. Cahier, ‘Le problème des effets des traités à l'égard des Etats tiers’, RCADI, 1974III, vol. 143, pp 660–77; Th. Schweisfurth, ‘International Treaties and Third States’, ZaöRV, 1985, pp 665–6. 49 ICJ Reports 1994, p 37, paras 72–3. 50 Supra, para. 12. * Professor of International Law, University of Florence; Member of the International Law Commission of the United Nations.

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Volume I, Part III Observance, Application and Interpretation of Treaties, s.4 Treaties and Third States, Art.38 1986 Vienna Convention Giorgio Gaja From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

Subject(s): Vienna Convention on the Law of Treaties — Treaties, binding force — Treaties, effect for third states — Customary international law

(p. 959) 1986 Vienna Convention Article 38 Rules in a treaty becoming binding on third States or third organizations through international custom Nothing in Articles 34 to 37 precludes a rule set forth in a treaty from becoming binding upon a third State or a third organization as a customary rule of international law, recognized as such. 1. Article 38 of the Vienna Convention of 1986 is identical to Article 38 of the Vienna Convention of 1969, apart from the addition of the reference to international organizations, in the plural in the heading and in the singular in the text. The ILC had proposed an identical text. Even if, at the Conference, the draft Article had not been immediately referred to the Drafting Committee, the discussion in the Plenary Committee was very short: there were only two interventions.1 No change was introduced by the Drafting Committee, which followed the general approach consisting of modifying the text of the Convention of 1969 as little as possible.2 2. The fact that Article 38 mentions States and international organizations does not mean that any rule of international customary law applies to both States and international organizations. Thus the safeguard clause applies to international organizations only to the extent that a customary rule that corresponds to a treaty rule includes international organizations among its addressees.3 As the Commission wrote in the commentary to the draft Article at second reading: The present draft Article does not prejudge in one way or the other the possibility that the effects of the process of the formulation of customary law might extend to international organizations . . .4 During the work of the Commission, the Special Rapporteur, Paul Reuter, had emphasized the importance of Article 38 for international organizations because they do not participate in many multilateral treaties, ‘and particularly in treaties of (p. 960) codification’.5 This situation has evolved, at least in relation to certain international organizations which have been entitled to become parties to the United Nations Convention of 1982 on the Law of the Sea and to the Vienna Convention of 1986. *

GIORGIO GAJA

Footnotes: 1 Official Records, vol. I, pp 122–3. 2 See in particular the statement of the chairman of the Drafting Committee, Mr AlKhasawneh, Official Records, vol. I, p 10, para. 6. 3 The question of the recognition of a customary rule on the part of an international organization was discussed in the Commission by Messrs Ushakov, Schwebel, Reuter, Castañeda, and Verosta, YILC, 1976, vol. I, pp 205–6, paras 65–72. It is not likely that a customary rule may be formed on the basis of a treaty in the relations between an international organization and its members. See the interventions by the Special Rapporteur Paul Reuter during the debates in the Commission, YILC, 1982, vol. I, p 126, para. 40 and by Mr Stefanini (France) at the Conference, Official Records, vol. I, p 127, para. 43. 4 Report of the Commission to the General Assembly, A/37/10, YILC, 1982, vol. II, Part Two, p 48, para. 5. 5 Sixth Report on the Question of Treaties Concluded between States and International Organizations or between two or more International Organizations by Mr Paul Reuter, YILC, 1977, vol. II, Part One, p 135. * Professor of International Law, University of Florence; Member of the International Law Commission of the United Nations.

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Abbreviations Edited By: Olivier Corten, Pierre Klein From: The Vienna Conventions on the Law of Treaties Edited By: Olivier Corten, Pierre Klein Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 07 April 2011 ISBN: 9780199546640

ACDI Annuaire de la Commission du droit international ADSP Annales de droit et de science politique AFDI Annuaire français de droit international AJIL American Journal of International Law Ann IDI Annuaire de l'Institute de Droit International ANZUS Australia, New Zealand, United States Security Treaty ARIEL Austrian Review of International and European Law ASDI Annuaire suisse de droit international ASIL American Society of International Law AVR Archiv des Völkerrechts BullQR Bulletin des questions et réponses BVerfGE Bundesverfassungsgerichtsentscheidungen (German Federal Constitutional Court Reports) BYBIL British Yearbook of International Law CETS Council of Europe Treaty Series CFI Court of First Instance CITES Convention on International Trade in Endangered Species of Wild Fauna and Flora CJEC Court of Justice of the European Communities CMLR

Common Market Law Reports CMLRev Common Market Law Review COMECON Council for Mutual Economic Assistance CRA Comptes rendus analytiques CSCE Conference on Security and Cooperation in Europe CTBT Comprehensive Nuclear-Test Ban Treaty CTBTO Comprehensive Nuclear-Test Ban Treaty Organization CTR Claims Tribunal Reports CTS Consolidated Treaty Series DR Decisions and Reports (European Commission of Human Rights) DSB Dispute Settlement Body EC European Community ECJ European Court of Justice Ecosoc Social and Economic Council (UN) ECOWAS Economic Community of West African States ECR European Court Reports ECtHR European Court of Human Rights EFTA European Free Trade Association EHRR European Human Rights Reports EJIL European Journal of International Law EPL European Public Law ETS European Treaty Series FAO Food and Agriculture Organization FRY Federal Republic of Yugoslavia (p. xx) GA General Assembly GATT General Agreement on Tariffs and Trade

GFA General Framework Agreement GYBIL German Yearbook of International Law I/ACtHR Inter-American Court of Human Rights IAEA International Atomic Energy Agency IBRD International Bank for Reconstruction and Development ICAO International Civil Aviation Organization ICC International Criminal Court ICCPR International Covenant on Civil and Political Rights ICJ International Court of Justice ICLQ International and Comparative Law Quarterly ICRC International Committee of the Red Cross ICSID International Centre for Settlement of Investment Disputes ICTR International Criminal Tribunal for Rwanda ICTY International Criminal Tribunal for the former Yugoslavia IDA International Development Association IFAD International Fund for Agricultural Development IFC International Finance Corporation IHRR International Human Rights Reports IIL Institute of International Law (Institut de droit international) IJIL International Journal of Innovation and Learning ILC International Law Commission ILM International Legal Materials ILO International Labour Organization ILR International Law Reports IMCO International Maritime Consultative Organization IMF

International Monetary Fund IMO International Maritime Organization Interpol International Criminal Police Organization IRRC International Review of the Red Cross ITU International Telecommunication Union IUHEI Institut Universitaire de Hautes Etudes Internationales IYBIL Italian Yearbook of International Law JCP Jurisclasseur périodique JDI Journal du droit international JICJ Journal of the International Commission of Jurists JORF Journal Officiel de la République Française JOSdN Journal Official Société des Nations (Official Journal of the League of Nations) JT Journal des Tribunaux KB King's Bench Reports (England and Wales) LJIL Leiden Journal of International Law LNTS League of Nations Treaty Series (Recueil des traites de la Société des Nations) LoN League of Nations LPICT Law and Practice of International Courts and Tribunals MFN most favoured nation (p. xxi) MLR Modern Law Review MTDSG Multilateral Treaties Deposited with the Secretary-General NILR Netherlands International Law Review NQHR Netherlands Quarterly of Human Rights NYIL Netherlands Yearbook of International Law OAS Organization of American States OAU Organisation of African Unity

OECD Organisation for Economic Co-Operation and Development OHCHR Office of the High Commissioner for Human Rights OIC Organisation of the Islamic Conference OJ Official Journal (EU) OPCW Organization for the Prohibition of Chemical Weapons OSCE Organization for Security and Co-operation in Europe ÖZöRV Österreichische Zeitschrift für öffentliches Recht und Völkerrecht Pas Pasicrisie PCIJ Permanent Court of International Justice RAI Recueil des arbitrages internationaux RBDI Revue belge de droit international RCADI Recueil des cours de l'Académie du droit international RCDIP Revue critique de droit international privé RDH Revue des droits de l'Homme RDI Rivista di diritto internazionale RDIDC Revue de droit international et du droit comparé RDILC Revue de droit international et de législation comparée RDP Revue du droit public et de la science politique en France et à l'étranger RDUE Revue de droit de l'Union européenne REDI Revista Española de Derecho Internacional RGDIP Revue general de droit international public RHDI Revue hellénique de droit international RIAA Reports of International Arbitral Awards (Receuil des sentences arbitrales) RMC Revue du Marché Commun et de l'Union Européenne RMUE Revue du Marché Unique Europeen RSDI

Revue suisse de droit international RTDE Revue trimestrielle de droit européen RTDH Revue trimestrielle des droit de l'homme RUDH Revue universelle des droits de l'homme SCR Supreme Court Reports (Canada) SFDI Société Française pour le droit international SFRY Socialist Federal Republic of Yugoslavia SOFA Status of Forces Agreement TEU Treaty on European Union TFEU Treaty on the Functioning of the European Union UKHL UK House of Lords reports UKTS UK Treaty Series UNCLOS United Nations Convention on the Law of the Sea UNCTAD United Nations Conference on Trade and Development (p. xxii) UNDP United Nations Development Programme UNESCO United Nations Educational, Scientific and Cultural Organization UNIDO United Nations Industrial Development Organization UNJY United Nations Juridical Yearbook UNOOSA United Nations Office for Outer Space Affairs UNTS United Nations Treaty Series (Recueil des traités des Nations Unies) UPU Universal Postal Union USC United States Code VaJIL Virginia Journal of International Law VCLT Vienna Convention on the Law of Treaties WHO World Health Organization WIPO World Intellectual Property Organization

WMO World Meteorological Organization WTO World Trade Organization YBECHR Yearbook of the European Commission of Human Rights YIIL Yearbook of the Institute of International Law YILC Yearbook of the International Law Commission ZaöRV Zeitschrift für ausländisches öffentliches Recht und Völkerrecht

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