Yearbook of the International Law Commission 1962 Volume II

YEARBOOKOF THE

INTERNATIONALLAW COMMISSION

1962Volume II

Documents of the fourteenth sessionincluding the report of the Commission

to the General Assembly

YEARBOOK

OF THE

INTERNATIONAL

LAW COMMISSION

1962Volume II

Documents of the fourteenth session

including the report of the Commissionto the General Assembly

UNITED N A T I O N SNew York, 1964

NOTE

Symbols of United Nations documents are composed of capital letters com-bined with figures. Mention of such a symbol indicates a reference to a UnitedNations document.

A/CN.4/SER.A/1962/Add.l

UNITED NATIONS PUBLICATION

Sales No.: 62. V. 5

Price: $U.S. 2.50 (or equivalent in other currencies)

CONTENTS

Page

JURIDICAL REGIME OF HISTORIC WATERS, INCLUDING HISTORIC BAYS

Document A/CN.4/143: Study prepared by the Secretariat 1

LAW OF TREATIES (agenda item 1)

Document A/CNA/144: First report on the law of treaties, by Sir Hum-phrey Waldock, Special Rapporteur 27

Document A/CN.4/144/Add.l: Addendum to the first report on the lawof treaties, by Sir Humphrey Waldock, Special Rapporteur 80

FUTURE WORK IN THE FIELD OF THE CODIFICATION AND PROGRESSIVE DEVEL-OPMENT OF INTERNATIONAL LAW (agenda item 2)

Document A/CN.4/145: Working paper prepared by the Secretariat 84

SUCCESSION OF STATES AND GOVERNMENTS

Document A/CN.4/149 and Add.l: The succession of States in relationto membership in the United Nations: memorandum prepared by theSecretariat 101

Document A/CN.4/150: Succession of States in relation to general multi-lateral treaties of which the Secretary-General is the depositary: memo-randum prepared by the Secretariat 106

Document A/CN.4/151: Digest of the decisions of international tribunalsrelating to State succession: study prepared by the Secretariat 131

CO-OPERATION WITH OTHER BODIES (agenda item 4)

Document A/CN.4/146: Report on the fifth session of the Asian-AfricanLegal Consultative Committee (Rangoon, January 1962) by Radha-binod Pal, Observer for the Commission 152

QUESTION OF SPECIAL MISSIONS (GENERAL ASSEMBLY RESOLUTION 1687

(XVI) ) (agenda item 3)Document A/CN.4/147: Working paper prepared by the Secretariat. . . . 155

REPORT OF THE COMMISSION TO THE GENERAL ASSEMBLY

Document A/5209: Report of the International Law Commission cover-ing the work of its fourteenth session, 24 April-29 June 1962 157

CHECK LIST OF DOCUMENTS REFERRED TO IN THIS VOLUME 196

iii

JURIDICAL REGIME OF HISTORIC WATERS, INCLUDING HISTORIC BAYS

DOCUMENT A/CN.4/143

Study prepared by the Secretariat[Original text: English]

[9 March 1962]

CONTENTS

Paragraphs Page

I. ORIGIN AND BACKGROUND OF THE STUDY 1-32 1

II. JURIDICAL REGIME OF HISTORIC WATERS, INCLUDING HISTORIC BAYS

A. Preliminary explanation of the terms "historic waters" and "historic bays" . 33-35 6

B. Concept of "historic waters"

1. Background 36-41 6

2. Is the regime of "historic waters" an exceptional regime ? 42-61 7

3. Is the title to "historic waters" a prescriptive right? 62-68 11

4. Relation of "historic waters" to "occupation" 69-71 12

5. "Historic waters" as an exception to rules laid down in a general con-vention 72-79 12

C. Elements of title to "historic waters" 80-148 13

1. Exercise of authority over the area claimed 84—100 13

(a) Scope of the authority exercised 85-88 13(b) Acts by which the authority is exercised 89-97 14(c) Effectiveness of authority exercised 98-100 15

2. Continuity of the exercise of authority: usage 101-105 15

3. Attitude of foreign States 106-133 16

4. Question of the vital interests of the coastal State in the area claimed . . . . 134-140 19

5. Question of "historic waters" the coasts of which belong to two or moreStates 141-148 20

D. Burden of proof 149-159 21

F-. 1-egal status of the waters regarded as "historic waters" 160—167 23

F. Question of a list of "historic waters" ] 68—176 23

G. Settlement of disputes 177-181 24

III. CONCLUSIONS 182-192 25 -

I. Origin and background of the study

1. The present study was prepared by the Codifica-tion Division of the Office of Legal Affairs at the requestof the International Law Commission. The Commis-sion's decision to initiate the study was taken at itstwelfth session (1960), in pursuance of General As-sembly resolution 1453 (XIV) of 7 December 1959.The Assembly resolution was prompted by a resolu-tion on the matter taken by the United Nations Con-ference on the Law of the Sea held in 1958 at Geneva.A brief review of these resolutions and of their back-ground will help to clarify the purpose of the study.

2. At its eighth session (1956) the InternationalLaw Commission completed the final draft of its articles

concerning the Law of the Sea1 and this draft was sub-sequently referred by the General Assembly to theabove-mentioned United Nations Conference on theLaw of the Sea. Article 7 of the draft dealt with bays;paragraphs 1 to 3 contained a definition of a bay andlaid down rules for the delimitation of internal watersin a bay (the coasts of which belong to a single State),while paragraph 4 read in part as follows:

"4. The foregoing provisions shall not apply toso-called historic bays . . ."2

1 See chapter II of the Report of the International LawCommission covering the work of its eighth session, 23 April-4 July 1956, Official Records of the General Assembly,Eh-venlh Session, Supplement Xo. 9 (A/3159).

- Ibid., pages 5 and 15.

Yearbook of the International Law Commission, Vol. II

3. Although much attention was given in the reportsof the Special Rapporteur and in the discussions of theCommission to the substantive provisions on bays inarticle 7 in its successive stages of development, thereis little in the records of the Commission to shed lighton the concept of "historic bays" referred to in para-graph 4 of the article.

4. A clause regarding "historic bays" did not appearin the first two reports on the territorial sea preparedby the Special Rapporteur. He submitted, however, atthe fifth session of the Commission, an addendum3 tohis second report in which he presented redrafts ofcertain articles contained in the second report, amongthem the article on bays. These new drafts were to alarge extent inspired by solutions proposed by a groupof experts to a number of technical problems whichhad been referred to them by the Special Rapporteur.As redrafted, the article on bays, in its first paragraph,gave a definition of "a bay in the juridical sense" andthereafter stated:

"Historic bays are excepted; they shall be indicatedas such on the maps."

In his third report,4 submitted at the sixth session ofthe Commission, the Special Rapporteur transferredthis clause regarding "historic bays" from the text ofthe article to the commentary. At the following session,he submitted a new redraft of the article on bays,5 andin the text of that redraft the clause regarding "historicbays" reappeared. However, now the clause excepted"historic bays" not from the general definition of abay but from the rules regarding the drawing of closinglines in bays. Another difference from the previousformulation of the clause was that the provision that"historic bays" should be marked on the maps, hadbeen omitted.

5. In this form, i.e., as a proviso excepting "historicbays" from the rules regarding drawing closing linesin bays, the clause was included in article 7 (on bays)of the preliminary draft on the regime of the terri-torial sea which was adopted by the Commission atits seventh session and circulated to the Member Statesfor observations.

6. In its reply6 the Union of South Africa pointedout that the commentary accompanying the articleseemed to indicate that the real intention of the Com-mission was to exempt "historic bays" not only fromthe rules on the drawing of closing lines but also fromthe other rules on bays laid down in the article. TheSpecial Rapporteur and the Commission agreed, andthe clause regarding "historic bays" was, consequently,in the final draft of the article formulated as set outabove in paragraph 2 of this paper.

7. In the course of the discussions in the Com-mission of the article on bays in its successive formula-tions, only passing references were made to "historicbays". The debates, as a consequence, did not sub-stantially contribute to the clarification of the concept.7

3 A/CN.4/61/Add.l, the French text of which is printedin Yearbook of the International Law Commission, 1953,volume II, page 76.

4 A/CN.4/77, printed in French, in Yearbook of the Inter-national Law Commission, 1954, volume II, page 1.

5 In A/CN.4/93, the French text of which is printed inYearbook of the International Law Commission, 1955, vol-ume II, page 5.

6A/CN.4/99, Yearbook of the International Law Commis-sion, 1956, volume II, page 77.

7 The question of bays was discussed at the fourth sessionin 1952, the seventh session in 1955, and the eighth session, in

8. In order to provide the United Nations Confer-ence on the Law of the Sea with material relating to"historic bays", a memorandum8 on the subject wasprepared by the Codification Division and circulatedas a preparatory document of the Conference. It waspointed out in the memorandum that historic rightswere claimed not only in respect of bays but also inrespect of other maritime areas. However, as the pur-pose of the memorandum was to shed light on theconcept of "historic bays" referred to in the draft ofthe International Law Commission, the emphasis wason this latter concept, and historic claims to otherwaters were dealt with only incidentally. The contentof the memorandum was succinctly set out in its para-graph 5 as follows:

"5. Part I describes the practice of States byreference to a few examples of bays which are con-sidered to be historic or are claimed as such bythe States concerned. Part I then proceeds to citethe various draft codifications which established thetheory of "historic bays", and the opinions of learnedauthors and of Governments on this theory. Part IIdiscusses the theory itself, inquiring into the legalstatus of the waters of bays regarded as historicbays, and setting forth the factors which have beenrelied on for the purpose of claiming bays as historic.The final section is intended to show that the theorydoes not apply to bays only but is more general inscope."9

9. The United Nations Conference on the Law ofthe Sea which met in Geneva on 24 February 1958referred those articles of the International Law Com-mission draft dealing with the territorial sea and thecontiguous zone, including article 7 on bays, to itsFirst Committee. At the third meeting of the Com-mittee, in connexion with the organization of the Com-mittee's work, the representative of Panama proposedthat the Committee should set up a sub-committee toexamine the question of bays and in particular theproblem of the legal status of "historic bays". Therepresentative referred to the above-mentioned Secre-tariat memorandum and stated that it was

"essential that the international instruments to bedrafted by the Conference should deal with suchquestions as the definition of historic bays, the rightsof the coastal State or States, the procedure fordeclaring a bay 'historic', the conditions for recog-nition by other States, and the peaceful settlementof disputes arising from objections by other States".

1956; see, respectively, Yearbook of the International LawCommission, 1952, volume I, pages 188-190; Yearbook, 1955,volume I, pages 205-216, 251, 278, 279-80; and Yearbook,1956, volume I, pages 190-193. In the 1955 discussion, SirGerald Fitzmaurice affirmed that the concept of "historicbays" formed part of international law (Yearbook, 1955, vol-ume I, page 209), while Mr. Garcia-Amador and Mr. Hsu(ibid., pages 210 and 211) said that they had doubts about"historic bays". Mr. Garcia-Amador contended that this con-cept only benefited old countries having a long history andthat there were many comparative newcomers to the interna-tional community—countries in Latin America, the MiddleEast and the Far East—which could not claim such historicrights. The reference to "historic bays" in the relevant articlewas, however, adopted without any member voting against it(ibid., page 214).

8 Historic Bays, Memorandum by the Secretariat of theUnited Nations (A/CONF.13/1), printed in Official Recordsof the United Nations Conference on the Law of the Sea,1958, United Nations publication, Sales No.: 58.V.4, vol. I :Preparatory Documents, pages 1 et seq.

8 Ibid., page 2.

Juridical regime of historic waters, including historic bays

The work of the First Committee with respect to theseproblems would, in the opinion of the representative,be considerably facilitated if it appointed a sub-com-mittee specifically concerned with the law relating tobays.10

10. After a short discussion of the matter in theFirst Committee, the Chairman suggested that, as theforthcoming general debate in the Committee wouldprobably make clear what other sub-committees wouldbe needed, and it was desirable to consider the com-position of all the sub-committees at the same time,the Panamanian proposal should be held over for thetime being, on the understanding that he would bringit before the Committee at an early convenient date.The representative of Panama agreed to that pro-cedure.

11. In the discussion at the third meeting and thegeneral debate in the First Committee, the Panamanianproposal won support from several delegations, in par-ticular the delegations of Saudi Arabia, Yemen,11 ElSalvador,12 and Pakistan,13 while the representative ofthe United Kingdom14 expressed doubts regarding theusefulness of a study of the matter by a sub-committee.The representative of the Federal Republic of Ger-many15 said that he thought that it would be difficultto establish general rules applicable to "historic bays".Mr. J. P. A. Frangois, the International Law Com-mission's special rapporteur on the law of the sea, whowas present at the Conference as an expert to theSecretariat, also advised against setting up a sub-committee to deal with "historic bays". In his view, theConference did not have at its disposal the materialneeded for a thorough study of the question, and theConference might therefore

"merely use the term 'historic bays' and leave it tobe construed, in case of dispute, by the Court, withdue regard for all the features of the special case,which could not possibly be provided for in a gen-eral rule".

If necessary, he added, the International Law Com-mission

"could be instructed to study acquisition by prescrip-tion, with special reference to 'historic bays' ".1(5

12. When the Panamanian proposal was taken Upfor decision at the twenty-fifth meeting of the FirstCommittee,17 the representative of India stated thatalthough his delegation was highly interested in thequestion of "historic bays", he felt that the Committeehad neither the time nor the material available to dealwith the matter properly. Each bay, he said, having itsown particular characteristics, a mass of data wouldhave to be sifted and collated before any general prin-ciples could be established. Instead of setting up a sub-committee, the Conference should therefore adopt aresolution recommending that the General Assemblymake arrangements for further study of the questionof "historic bays" by whatever body it might considerappropriate. The representative of Panama indicatedwillingness to accept this idea put forth by India andconsequently to withdraw his own proposal. At the

10 Official Records of the United Nations Conference onthe Law of the Sea, Volume III, First Committee, page 2.

uibid

suggestion of the Chairman, the Committee thereafteragreed to postpone its decision until the text of a jointproposal by the delegations of India and Panama alongthese lines had been submitted.

13. In the meantime, the delegation of Japan sub-mitted a proposal containing a definition of "historicbays". The delegation proposed that paragraph 4 ofarticle 7, on bays, should be replaced by the followingtext :

"4. The foregoing provisions shall not apply to his-toric bays. The term 'historic bays' means those baysover which coastal State or States have effectivelyexercised sovereign rights continuously for a periodof long standing, with explicit or implicit recognitionof such practice by foreign States."18

The representative of Japan explained that his delega-tion has submitted this proposal because the definitionof "historic bays" was part of the task of codificationand could not be left to arbitral tribunals or courtsdealing with particular disputes regarding such bays.19

The definition included in the proposal had been pre-pared with the aid of the Secretariat's memorandumon "historic bays" (A/CONF.13/1).

14. The representative of Thailand agreed with theJapanese delegation that the definition of the term"historic bays" should not be left to any court ortribunal, but on the other hand he considered that thedefinition included in the Japanese amendment was notprecise enough. The representative of the Soviet Unionurged that the Japanese amendment should not be con-sidered until the Committee was ready to take up theIndian-Panamanian proposal referred to above.20

15. At its forty-eighth meeting the First Committeehad before it both the Japanese amendment to article 7and a draft resolution submitted jointly by India andPanama and reading as follows:21

"The First Committee,"Considering that the International Law Commis-

sion has not provided for the regime of historicwaters including historic bays,

"Recognizing the importance of the juridical statusof such areas,

"Decides to request the Secretary-General of theUnited Nations to arrange for the study of the regimeof historic waters including historic bays and thepreparation of draft rules which may be submittedto a special conference."

16. As far as the records of the meeting22 show, noexplanation was given why the subject of the proposedstudy in the joint draft resolution was described as"historic waters including historic bays", not merely"historic bays" which was the term used in paragraph 4of article 7 and also in the original Panamanian pro-posal to set up a sub-committee. When introducing thedraft resolution, one of the sponsors used the term"historic waters" while the other used the term "historic

1 2 Op. cit., page 48.1 3 Op. cit., page 51.14 Op. cit., page 9.1 5 Op. cit., page 45.1 6 Op. cit., page 69.1 7 Op. cit., page 74.

1 8A/(/ONF.13/C. l /L.104, op. cit.. page 241.10 Op. cit. pages 145, 198.2 0 Op. cit., pages 146, 198.21 A/CONF.13/C.1/L.158, op. cit, page 252.- - Op. cit., pages 147-1-18. It may be of interest in this

respect to note that during the deliberations in the First Com-mittee the question of an historic title to maritime areascame up not only in regard to bays but also in connexionwith the problem of the delimitation of the territorial seasof two States whose coasts are opposite or adjacent to eachother (article 12 of the Convention on the Territorial Seaand the Contiguous Zone) ; see op. cit., pages 187-193.


bays", and in the debate some speakers used the former,others the latter, term.

17. The attention of the Committee was in factfocused on other aspects of the draft resolution. It wasin particular pointed out that the resolution shouldrightly be in the name of the Conference not of theFirst Committee, and also that it was more seemly forthe Conference to address itself to the General As-sembly than to the Secretary-General. Both these pointswere admitted by the sponsor. Another change whichwas of more substantive importance was also acceptedby the sponsors. Their attention was drawn to thepossibility that the study might result in the conclusionthat in view of the diversity of the particular cases of"historic waters, including historic bays" no generalrules could be drawn up. The representative of Indiareplied that no general rules could, of course, be draftedif it was clearly impossible to do so, and that it wasprecisely the object of the proposed study to determinewhether such rules could be drafted.

18. In view of the various points brought up duringthe discussion, a decision on the draft resolution andon the Japanese amendment was further postponed.

19. The matter came before the First Committeeagain at its sixty-third meeting.23 India and Panamanow submitted a revised version of their draft resolu-tion, reading as follows :24

"The First Committee,"Considering that the International Law Commis-

sion has not provided for the regime of historicwaters including historic bays,

"Recognising the importance of the juridical statusof such areas,

"Recommends that the Conference should referthe matter to the General Assembly of the UnitedNations with the request that the General Assemblyshould make appropriate arrangements for the studyof the juridical regime of historic waters includinghistoric bays, and for the result of these studies tobe sent to all Member States of the United Nations."

In this wording, the draft resolution was adopted bythe First Committee. The delegation of Japan withdrewits amendment to article 7.

20. It might be useful to point out that in the reviseddraft resolution which was adopted, the word "juridi-cal" had been inserted before the word "regime" soas to clarify the character of the study to be undertaken.The points made in discussion referred to above hadalso been taken into consideration in the revised version.

21. The resolution adopted by the First Committeewas submitted to the Conference in the Committee'sreport on its work.25 The resolution was adopted with-out discussion, by the Conference, at its twentiethplenary meeting.26 The clause in the article on baysstating that the provisions of the article did not applyto "historic bays" was adopted in the wording pro-posed by the International Law Commission and quotedabove in paragraph 2 of this paper.

22. In consequence, the following resolution dated27 April 1958 was transmitted to the General As-sembly :

23 Op. cit, pages 197-198.24A/CONF.13/C.l/L.158/Rev.l, op. cit., page 252.2 5 Official Records of the United Nations Conference on the

Law of the Sea, Volume II, Plenary Meetings, page 125.26 Op. cit., page 68.

"The United Nations Conference on the Law ofthe Sea,

"Considering that the International Law Commis-sion had not provided for the regime of historicwaters, including historic bays,

"Recognizing the importance of the juridical statusof such areas,

"Decides to request the General Assembly of theUnited Nations to arrange for the study of thejuridical regime of historic waters, including historicbays, and for the communication of the results ofsuch study to all States Members of the UnitedNations."

23. The General Assembly, at its 752nd plenarymeeting on 22 September 1958, placed on the agendaof its thirteenth session the item "Question of initiatinga study of the juridical regime of historic waters, in-cluding historic bays" and referred it to the SixthCommittee. After a short discussion, the Committeeadopted and recommended to the General Assembly adraft resolution whereby the Assembly would postponeconsideration of the question to its fourteenth session.This draft resolution was approved by the General As-sembly at its 783rd plenary meeting, on 10 December195S.27

24. At its fourteenth session, the General Assemblyagain referred the item to the Sixth Committee whichdiscussed it at its 643rd to 646th meetings.28 In thecourse of the debate some representatives discussed thesubstance of the question, but most of the speakersreserved their position on the substance and limitedthemselves to the problem of how the study of thequestion should be organized. In the end there wasgeneral agreement that the study of the question shouldbe entrusted to the International Law Commission.The Sixth Committee unanimously adopted and sub-mitted to the General Assembly a draft resolution tothat effect, and at its 847th plenary meeting on 7 De-cember 1959, the Assembly adopted the following reso-lution 1453 (XIV) :

"The General Assembly,"Recalling that, by a resolution adopted on 27 April

1958, the United Nations Conference on the Law ofthe Sea requested the General Assembly to arrangefor the study of the juridical regime of historicwaters, including historic bays, and for the com-munication of the results of the study to all StatesMembers of the United Nations,

"Requests the International Law Commission, assoon as it considers it advisable, to undertake thestudy of the question of the juridical regime of his-toric waters, including historic bays, and to makesuch recommendations regarding the matter as theCommission deems appropriate."

25. General Assembly resolution 1453 (XIV) wasincluded in the agenda of the twelfth session of theInternational Law Commission and discussed at its544th meeting on 20 May I960.28 As might be ex-pected, the discussion mainly dealt with the methodsof the study to be undertaken.

2 7 See Official Records of the General Assembly, ThirteenthSession, Sixth Committee, 597th and 598th meetings andannexes to agenda item 58.

2 8 Op. cit., Fourteenth Session, Sixth Committee, 643rd to646th meetings and annexes to agenda item 58.

2 9 Yearbook of the International Law Commission, 1960,volume I, pages 111-116.


26. According to one school of thought which turnedout to be the minority opinion, the Commission shouldinvite the Member States to send to the Secretariatall available documentation concerning those historicwaters, including historic bays, which were subject totheir jurisdiction and to indicate the regime claimedby them for these waters. Only from such data pro-vided by Governments could the Commission, accord-ing to this view, learn the rules of customary interna-tional law concerning historic waters. Although it wasnot the task of the Commission to decide on particularclaims to these waters, nevertheless, it must discoverwhat bays and other waters were claimed as historicand on what grounds, in order to be able to determinethe principles governing the juridical regime of historicwaters on the basis of existing international custom.

27. The majority of the members of the Commis-sion, on the other hand, feared that if Governmentswere invited to specify their claims to historic watersthey might be tempted, as a matter of prudence, toprotect their position by advancing all their claims,including possibly some totally new ones. They mightalso thereby commit themselves to a rigid attitude whichcould make a solution of the problem more difficult inthe future. Furthermore, possibly exaggerated claimswould not be a suitable basis for the formulation ofprinciples on the matter. Those members who held thisopinion therefore felt that the Commission should firstdetermine the principles governing the matter and theninvite the Governments to comment on those principles.If the Governments so wished they could, of course,in their observations on the principles, refer to par-ticular claims to historic waters.

28'. While the majority of the members of the Com-mission were against requesting information from Gov-ernments at the present stage, they considered that inorder to expedite the Commission's work in this field,some action should be undertaken forthwith. It wastherefore decided to request the Secretariat to follow upthe work begun by the preparation of the memorandumon "historic bays" mentioned above in paragraph 8. Thisdecision was set out in paragraph 40 of the Commis-sions' report on its twelfth session (A/4425) as follows:

" . . . The Commisson requested the Secretariat toundertake a study of the juridical regime of historicwaters, including historic bays, and to extend thescope of the preliminary study outlined in paragraph 8of the memorandum on historic bays prepared by theSecretariat in connexion with the first United NationsConference on the Law of the S e a . . . "

29. Paragraph 8 of the memorandum referred toin the quotation reads:

"8. As indicated in part II of this paper, thetheory of historic bays is of general scope. Historicrights are claimed not only in respect of bays, butalso in respect of maritime areas which do not con-stitute bays, such as the waters of archipelagos andthe water area lying between an archipelago and theneighbouring mainland; historic rights are alsoclaimed in respect of straits, estuaries and othersimilar bodies of water. There is a growing tendencyto describe these areas as 'historic waters', not as'historic bays'. The present memorandum will leaveout of account historic waters which are not alsobays. It will, however, deal with certain maritimeareas which, though not bays stricto sensu, are ofparticular interest in this context by reason of their

special position or by reason of the discussion ordecisions to which they have given rise."30. It is apparent from what has been said above

that the subject-matter of the study to be undertakenis wider in scope than the subject-matter of the memo-randum on "historic bays" (A/CONF.13/1) preparedby the Secretariat with the purpose of shedding lighton the clause exempting such bays from the provisionof the article on bays contained in the InternationalLaw Commission's draft on the law of the sea. Thesubject-matter was widened to include also other "his-toric waters" than "historic bays". On the other hand,very little information can be gathered from the discus-sions related above as to the scope and meaning of theterm "historic waters" or as to the relationship betweenthat term and the term "historic bays". This was to beexpected as the discussion was mainly concerned withmethods and procedures for dealing with the matter.Moreover, as will be seen below, the question of therelationship between the terms "historic bays" and"historic waters" does not involve major problems.

31. Another point which clearly emerges from theforegoing is that the study at the present stage shouldnot have as its purpose to attempt to establish a list ofexisting "historic bays" and other "historic waters".As far as "historic bays" are concerned, the previousSecretariat memorandum (A/CONF.13/1) contains acomprehensive enumeration of such bays and it wouldbe difficult to make useful additions thereto withoutconsulting the Governments.30

32. The purpose of the study should rather be todiscuss the principles of international law governingthe regime of "historic waters". The question then ariseshow these principles can be ascertained. The properinductive method would be to study the particular casesof "historic waters" and see what common principlescan be abstracted from them. This procedure would,however, seem to require that the first step should beto establish a collection of cases which would be ascomplete as possible. That would mean that the Govern-ments must be approached with a request to provideinformation. On the other hand, if not every govern-mental claim to "historic waters" is to be accepted,some principles would be needed in the light of whichthe claims could be evaluated. Theoretically at least,there seems to be a dilemma here: in order to decidewhether a claim to "historic waters" is rightful, it isnecessary to have principles of international law bywhich the claims can be appraised, but in order not tobe arbitrary these principles must be based on the actualpractice of States in these matters. As usual the dilemmacan be solved only in a pragmatic way. There is alreadyavailable considerable material in the form of knownclaims to "historic waters", discussions of the subjectin the literature of international law and previous at-tempts to establish and formulate the relevant prin-ciples. Most of the material has already been recordedin the Secretariat memorandum on "historic bays" (A /CONF.13/1). On this basis it is possible to analyseand discuss important aspects of the question and toarrive at certain tentative conclusions which can befurther developed and where necessary modified in thelight of information and observations received at a laterstage from Governments. The present paper is con-ceived as a contribution to this initial or tentativediscussion of the subject. Its purpose is to bring to

30 The question of establishing a list of historic waters isdiscussed more extensively below in paragraphs 168-176.

6 Yearbook of the International Law Commission, Vol. II

light, analyse and discuss problems connected with thesubject rather than to present complete solutions tothese problems. In order to be useful and to advancethe study of the relevant problems, the paper must gobeyond the mere enumeration of the various opinionsexpressed in theory and practice. Without presumingto give judgements on these opinions, it will sometimesbe necessary to point out difficulties which seem to beinherent in some of them and to express a preferencefor others.

II. Juridical regime of historic waters, includinghistoric bays

A. PRELIMINARY EXPLANATION OF THE TERMS"HISTORIC WATERS" AND "HISTORIC BAYS"

33. It is hardly necessary to go deeply into thematter of "historic waters" to realize that this is asubject where superficial agreement among authors andamong practitioners conceals several controversial prob-lems as well as some obscurity or at least lack of pre-cision. Nobody would contest that there are cases inwhich a State has a valid historic title to certain watersadjacent to its coasts, but when it comes to a moreprecise definition of this title, its relation to the rules ofinternational law for the delimitation of the maritimeterritory of a State or the question of the circumstancesin which the historic title may arise, agreement is farfrom complete. Although it would have been convenientto be able to give, at the outset, a definition of "historicwaters", this is therefore not possible. Without an ex-amination and discussion of the controversial problemsinvolved, the presentation of a definition would bepremature. Furthermore, as was said above, the purposeof the present preparatory study is not so much toprovide ready-made solutions to the relevant problemsas to indicate these problems and so to prepare theway for the International Law Commission's considera-tion of the matter. In other words, in the paper anattempt will be made to set forth, analyse and clarify anumber of problems connected with the concept ortheory of "historic waters", departing from the factthat it is universally recognized in the doctrine andpractice of international law that States may undercertain circumstances on historic grounds have validclaims to certain waters adjacent to their coasts.

34. One of the lesser problems which, at least in apreliminary way, should be clarified is the terminologi-cal question arising from the use in theory and prac-tice rather indiscriminately of the terms "historic bays"and "historic waters". These two terms are obviouslynot synonymous; the latter term has a wider scope, asis also apparent from the expression used in the resolu-tions of the Conference on the Law of the Sea and theGeneral Assembly, namely, "historic waters, includinghistoric bays". It is a fact that the term "historic bays"is more frequently used or has until recent times beenmore frequently used than "historic waters". This cir-cumstance cannot, however, be taken as evidence thatthe more general view is that only bays, not otherwaters, may be claimed by States on an historic basis.On the contrary, it can be said that all those authoritieswho have directed their attention to the problem seemto agree that historic title can apply also to watersother than bays, i.e., to straits, archipelagos and gen-erally to all those waters which can be included in themaritime domain of a State. If the term "historic bays"has been used more frequently than "historic waters",this is mainly due to the fact that claims on an historic

basis have been made more often with respect towhat were called or considered to be bays than toother waters. In principle, as was said in the Secretariatmemorandum (A/CONF.13/1). referred to above inparagraph 29, "the theory of historic bays is of gen-eral scope", i.e., it applies also to other maritime areasthan bays. Sir Gerald Fitzmaurice no doubt expresseda generally held opinion when he stated that :

" . . . there seems to be no ground of principle forconfining the concept of historic waters merely tothe waters of a bay . . . Even if the cases would inpractice be fewer, a claim could equally be made onan historic basis to other waters . . .".31

It may be of interest to note that in the Fisheries casebetween the United Kingdom and Norway, both partiesagreed that the theory of "historic waters" was notlimited to bays.32 It will be seen below that the legalstatus of "historic bays" may be different from thatof other "historic waters", but that circumstance obvi-ously does not weaken the position that an historictitle can exist to other waters than bays.

35. It is easily discernible that many of the prob-lems and difficulties inherent in the theory of "historicwaters" have their origin or are conditioned by thecircumstances in which the theory arose and was de-veloped. A short description of the background of thetheory, in fact and in law, should therefore facilitate itsunderstanding.

B. CONCEPT OF "HISTORIC WATERS"

1. Background

36. There are above all two factors which have con-tributed to the emergence and development of theconcept of "historic waters". One important factor wasthe controversial status of the international legal rulesrelating to the delimitation of the maritime territoryof the State. Without taking a position regarding thequestion whether or not there ever was a generallyaccepted maximum width of the territorial sea or amaximum breadth of the opening of bays, it can safelybe said that these questions through the ages were en-veloped in controversy and therefore appeared to bothlawyers and laymen as subject to doubt. In these cir-cumstances it was natural that States laid claim to andexercised jurisdiction over such areas of the sea adja-cent to their coasts as they considered to be vital totheir security or to their economy. When a controversyarose after a State had for some time exercised juris-diction over such an area of the sea, and the opponentState alleged that, according to the general rules ofinternational law relating to the delimitation of terri-torial waters, the area in question was outside suchwaters, it was also natural for the defendant State toreply not only that it had a different opinion about thecontent of the applicable rule of general internationallaw but also that by force of long usage it now had anhistoric title to the area. In the course of time thereoccurred quite a number of cases in which a State

31 British Year Book of International Law, vol. 31 (1954),page 381; see also Gidel, Droit international public de la mer,vol. I l l (1934), page 651, and the Norwegian Counter-Memorial in the Fisheries case, paragraphs 539, 549 and 557-560; International Court of Justice, Pleadings, Oral Argu-ments, Documents, I'ish-eries Case, volume I, pages 548, 557and 564-566, and British reply, paragraphs 471-472, op. cit.vol. II, pages 643-645; Cf. also the report of the SecondCommittee in Acts of the Conference for the Codification ofInternational Law (1930), vol. Il l , page 211.

3- Cf. op. cit, vol. II, page 643.


asserted its sovereignty, based on historic rights, overcertain maritime areas, whether or not according togeneral international law rules such areas might beoutside its maritime domain. No attempt will be madein this paper to enumerate these cases; an enumera-tion and description of many of them may be foundin the Secretariat's memorandum on "historic bays"(A/CONF.13/1), pages 3 et seq.

37. The second important factor in the developmentof the concept and theory of "historic waters" was theattempts, official and unofficial, to substitute for thecontroversial and doubtful international law relating tothe delimitation of territorial waters a set of clear-cut, generally acceptable, written rules on the subject.For various such projects, reference may also bemade to the aforementioned Secretariat memorandum(A/CONF.13/1), pages 14 et seq. As pointed out inthat memorandum (pages 2-3), a codification of theinternational law rules relating to the delimitation ofterritorial waters and in particular regarding the de-limitation of bays would in several cases have con-flicted with existing situations. In other words, con-siderable maritime areas over which States claimedand exercised sovereignty would, if the codificationwere accepted, fall outside the jurisdiction of theseStates and belong instead to the high seas. It is obviousthat a codification having such consequences would notcommend itself to the States affected. The proposedrules would stand a better chance of being acceptedif they included a clause excepting from its regulationswaters to which a State had a historic title. As a conse-quence, the proposed codifications dealing with thedelimitation of territorial waters generally containedsuch clauses in varying formulations. The concept of"historic waters" came to be considered as an in-dispensable concept without which the task of establish-ing simple and general rules for the delimitation ofmaritime areas could not be carried out. Gidel expressesthis thought when he says :

"The theory of 'historic waters', whatever nameit is given, is a necessary theory; in the delimitationof maritime areas, it acts as a sort of safety valve;its rejection would mean the end of all possibilityof devising general rules concerning this branch ofpublic international law . . .'\33

38. In summary, the concept of "historic waters" hasits root in the historic fact that States through the agesclaimed and maintained sovereignty over maritime areaswhich they considered vital to them without payingmuch attention to divergent and changing opinionsabout what general international law might prescribewith respect to the delimitation of the territorial sea.This fact had to be taken into consideration whenattempts were made to codify the rules of internationallaw in this field, i.e., to reduce the sometimes obscureand contested rules of customary law to clear andgenerally acceptable written rules. It was felt that Statescould not be expected to accept rules which would de-prive them of considerable maritime areas over whichthey had hitherto had sovereignty. The Second Com-mittee of the 1930 Hague Codification Conference saidin its report:

"One difficulty which the Committee encounteredin the course of its examination of several points ofits agenda was that the establishment of generalrules with regard to the belt of the territorial sea

33 Gidel, op. cit., page 651.

would, in theory at any rate, effect an inevitablechange in the existing status of certain areas of water.In this connection, it is almost unnecessary to mentionthe bays known as 'historic bays'; and the problemis besides by no means confined to bays, but arisesin the case of other areas of water also. The work ofcodification could not affect any rights which Statesmay possess over certain parts of their coastal sea,and nothing, therefore, either in this report or in itsappendices, can be open to that interpretation."34

39. The circumstance that the existence of historicrights to certain areas of the sea came to be ofparticular interest in connexion with the endeavour toformulate general rules of international law on the de-limitation of the territorial sea had as a consequencea tendency to consider the juridical regime of "historicwaters" as an exceptional regime. The protagonists ofthe codification of international law in this field under-stood that, as a practical matter, a long-standing exer-cise of sovereignty over an area of the sea could notsuddenly be invalidated because it would not be inconformity with the general rules being formulated. Onthe other hand, as the purpose of the codification wasthe establishment of general rules it was natural tolook upon these historic cases as exceptions from therule. Gidel succinctly expressed this view as follows:

". . . while the theory of historic waters is a neces-sary theory, it is an exceptional theory . . ,".35

40. Whether or not the regime of "historic waters"is an exceptional regime may seem to be an academicquestion. In reality, it is of practical importance withrespect to the question of what is needed to establishtitle to such waters. If the right to "historic waters"is an exceptional title which cannot be based on thegeneral rules of international law or which may evenbe said to abrogate these rules in a particular case, it isobvious that the requirements with respect to proof ofsuch title will be rigorous. In these circumstances thebasis of the title will have to be exceptionally strong.The reasons for accepting the title must be persuasive;for how could one otherwise justify the disregardingof the general rule in the particular case? To quoteGidel again:

"The costal State which makes the claim of 'his-toric waters' is asking that they should be givenexceptional treatment; such exceptional treatmentmust be justified by exceptional conditions."'36

41. Both from the theoretical and from the practicalpoint of view, it is therefore important to examine,analyse and clarify the notion that the regime of"historic waters" is an exceptional regime.

2. Is the regime of "historic waters" an exceptionalregime?

42. It is probably true that, at least among thewriters on the subject, the dominant opinion is that"historic waters" constitute an exception to the generalrules of international law governing the delimitation ofthe maritime domain of a State. Gidel has been quotedabove as an adherent of that opinion. His thoughts onthe matter are expressed in greater detail in the follow-ing passage:

34 Acts of the Conference for the Codification of Interna-tional Law, Meetings of the Committee, volume I I I : Minutesof the Second Committee (Series of League of Nations pub-lications, V.Legal.l930.V.16), page 211.

35 Gidel, op. cit., page 651.36 Gidel, op. cit., page 635.


"An examination of the facts shows: (1) thatcertain States have claimed as part of their maritimedomain waters which under the generally acceptedrules applicable in principle to such areas would havehad to be considered as part of the high seas, and(2) that such claims have often been recognized byother States.

"This state of affairs has given rise to a theorycommonly referred to as the theory of 'historic bays':it has tried, with varying success, to identify a pos-sible link between these different exceptional situa-tions, whose only common feature appears to be theirderogation from the generally accepted rules. Sinceit is necessary, if the general rule is not to bedestroyed, to limit the claims of States tempted tonullify the generally recognized rules for determiningareas that have a juridical status other than that ofthe high seas, the 'historic bays' theory has aimed atmaking such derogations subject to certain conditions,on which agreement, both in the doctrine and in prac-tice, appears not to be complete."37

In this statement the exceptional character of "historicwaters" is strongly emphasized as well as the necessityof limiting claims of this nature in order not to jeopar-dize the general rules regarding the delimitation ofthe maritime domain of States. It is also interesting tonote that Gidel mentions two facts as bases of the con-cept of historic waters : a claim by a State to a maritimearea which according to the general rules would behigh seas, and the recognition by the other States ofthis exceptional claim. This indicates the connexion,according to this view, between the exceptional natureof the claim and a requirement that in order to be thebasis of a valid title, the claim has to be combined withsome form of recognition by the other States. We shallcome back to this important proposition later. Here it issufficient to point out the connexion as it appears inGidel's statement.

43. A similar position is taken by another prominentauthority on these matters. In an article discussing thelaw and procedure of the International Court of Justice,Sir Gerald Fitzmaurice says with reference to theFisheries case between the United Kingdom andNorway:

"The Norwegian contention was essentially anattempt to remove from the conception of 'historicity'of given rights, the element of prescription, that is,in effect, the element of an adverse acquisition ofrights in the face of existing law. Yet this element isof the essence of the matter, for a title or right basedon historic considerations only becomes materialwhen (and indeed assumes that) the actions involvedare not or could not be justified according to therecognized rules, and can therefore be justified, if atall, only by reference to some special factor such asan historic right.

"As was suggested in the United Kingdom's writ-ten reply in the Fisheries case, this right takes theform essentially of a 'validation in the internationallegal order of a usage which is intrinsically invalid,by the continuance of the usage over a long periodof time'."38

Sir Gerald is here referring to the subsidiary issue inthe Fisheries case whether Norway, even if the general

37 Gidel, op. cit , pp. 621-623.38 British Year Book of International Law, vol. 30 (1953),

pages 27-28.

rules of international law did not allow it to do so,had an historic right to delimit its waters in the mannerprovided by the Norwegian legislation and opposed bythe United Kingdom. In his view, such an historicright would be an adverse acquisition of certain mari-time areas, an acquisition on the basis of a title whichin the particular case would constitute an exception toor an abrogation of the general rule. A similar thoughtis expressed in the following passage from anotherarticle of his on the law and procedure of the Court:

"It has for long been part of international law that,on a basis of long-continued use and treatment aspart of the coastal domain, waters which would nototherwise have that character may be claimed asterritorial or as internal waters . . ,".39

44. In the opinion of Sir Gerald, the exceptionalnature of the historic title also has as a consequencethat some form of acquiescence on the part of otherStates is necessary.40 Further attention to this aspect ofthe problem will be given below.

45. Other authors who consider the regime of"historic waters" to be an exception to the generalrules are, e.g., Westlake, Fauchille, Pitt-Cobbett,Higgins and Colombos, Balladore Pallieri and others.Pertinent quotations from their works are found inthe Secretariat memorandum on "historic bays"(A/CONF.13/1), pages 18-20.

46. The view that "historic waters" constitute anexception to the generally valid rules regarding thedelimitation of maritime areas was argued by the UnitedKingdom in the Fisheries case. A summary of its posi-tion is set out in the reply of the United Kingdomas follows:

"(i) A State is entitled to a belt of territorialwaters of a certain breadth—the generally acceptedlimit is three miles—but Norway has an historic orprescriptive title to a belt of four miles.

"(ii) The belt of territorial waters must be meas-ured from a base-line, which, subject to certain excep-tions, must follow the low-water mark on the land.

"(iii) Where there are bays or similar indentationsof the coast (whatever name these indentations have)which are of a certain character and where there areislands off the coast, there are rules of general inter-national law which permit the base-line of territorialwaters to cease to follow low-water mark on the landand to enclose as national waters certain areas of sea.

"(iv) A State can only establish a title to areas ofsea which do not come within these general rules ofinternational law on the basis of an historic or pre-scriptive title."41

47. In the opinion of the United Kingdom there weretwo essential elements in such an historic or prescriptivetitle, namely:

"( i ) Actual exercise of authority by the claimantState;

"(ii) Acquiescence by other States."42

48. The connexion between the exceptional characterof the claim to an historic title and the requirement ofacquiescence by other States is clear from the followingstatement by the United Kingdom:

39 Op. cit , vol. 31 (1954), page 381.4 0 See op. cit., vol. 30 (1953), pages 27 et seq.^International Court of Justice, Pleadings, Oral Argu-

ments, Documents, Fisheries Case, vol. II, page 302.4 2 Op. cit., page 303.


". . . where the claim goes beyond what is acceptedunder general customary international law, it is theacquiescence of other States, express or implied fromlong usage, that sets the seal of legal validity uponthe exceptional claim".43

49. In contrast to this theory according to whichthe regime of "historic waters" is an exceptional regime,there is another opinion which denies that there existgeneral rules of international law regarding the de-limitation of bays and other maritime areas from whichthe regime of "historic waters" could be an exception.In a study on "historic bays"44 Bourquin has developedthis line of thought. He says that:

". . . Before taking a position on the theory of'historic bays', one must ask oneself whether ordinarylaw subjects the delimitation of territorial bays tostrict rules. The answer to this question cannot failto influence the way in which one regards the prac-tical importance and juridical function of historictitles.

"Is there a rule, valid for all States, which wouldlimit the width of the opening of territorial bays toa given distance? More precisely, has the so-calledten-mile rule, generally advanced by those who favoura rigid delimitation, been consecrated by customarvlaw?"45

50. After having reached the conclusion that no suchfixed limitation of the opening of a bay exists in generalinternational law and that in any case:

"The character of a bay depends on a combinationof geographical, political, economic, historical andother circumstances . . ."4C

he continues:"If it is agreed that the solution given by ordinary

law to the problem of the territoriality of bays is nota matter of a mathematical limitation of their widthbut depends on an appreciation of the various ele-ments that make up the character of the particularbay, the notion of 'historic titles' assumes a meaningthat is quite different from that given it by thosewho favour the ten-mile rule. 'Historic title' no longerhas the function of making an otherwise illegal situa-tion legitimate. It is no longer a means whereby thecoastal State can include a part of the high seas inits domain. It is no longer connected with the ideaof usucapion. It is one element along with otherscharacterizing a particular state of affairs, whichmust be considered as a whole and in its variousaspects.

"Where long usage is invoked by a State, it is aground additional to the other grounds on which itsclaim is based. In justification of its claim, it will beable to point not only to the configuration of the bay,to the bay's economic importance to it, to its need tocontrol the bay in order to protect its territory, etc.,but also to the fact that its acts with respect to thebay have always been those of the sovereign and thatits rights are thus confirmed by historical tradition."47

51. As he does not consider the regime of historicbays as a deviation from general rules of internationallaw, Bourquin is inclined to de-emphasize the impor-

4 3 Op. cit , page 621.4 4 Bourquin, "Les baies historiques" in Melatiges Georges

Sauser-Hall (1952), pages 37-51.4 5 Op. cit., page 39.4 6 Op. cit., page 42.4 7 Op. cit., pages 42-43.

tance of the acquiescence of other States. The historictitle is for him "a juridical consolidation by the effect oftime",48 and such title is created by "the peaceful andcontinuous exercise of sovereignty".49 Therefore,

"While it is wrong to say that the acquiescence ofthese States [foreign States] is required, it is truethat if their reactions interfere with the peaceful andcontinuous exercise of sovereignty, no historic titlecan be formed."50

As said before, this question will be further analysedlater on; the purpose of mentioning it here is to pointout the connexion between the author's concept of"historic bays" and his attitude regarding the require-ment of acquiescence on the part of foreign States.

52. In the Fisheries case, Norway took a similarposition. The argument was, however, not limited to"historic bays" but referred to "historic waters" ingeneral:

"In sum, it is not at all the function of an historictitle, as conceived by the Norwegian Government andinvoked in the present case, to legalize an otherwiseillegal situation, but rather to confirm the validity ofa situation.

"The Norwegian Government does not believe itnecessary to discuss to what extent parts of the highseas may be included in the maritime domain of theState by virtue of an historic title, since the questiondoes not arise in this case. It would only arise if thegeneral rules which the United Kingdom Governmentalleges to be applicable to the delimitation of themaritime domain were really in force. But, the Nor-wegian Government has demonstrated that they arenot and that they have never acquired the stabilityof customary rules . . .

"The Norwegian Government recognizes that theusage on which an historic title is based must bepeaceful and continuous, and consequently that thereaction of foreign States constitutes an element tobe taken into account in an appreciation of such title;but it completely rejects the thesis of the adverseParty that the aquiescence of other States is the onlybasis of an historic title, which would then be virtuallyindistinguishable from the juridical institution ofrecognition.

"The Norwegian Government considers that theabsence of reaction by other States endows usage withthe peaceful and continuous character it must havein order to give rise to an historic title.

"As to the consequences that must be deemed toensue in this connexion from opposition by certainStates, the Norwegian Government believes that it isa specific question, that each case must be judged inthe light of its circumstances; that not all protestscan be placed on the same footing; that, in any case,isolated opposition is incapable of preventing thecreation of an historic title; and that in decisions insuch matters one should bear in mind the wise counselof the maxim quieta non movere."51

53. Also Counsel for Norway said, as quoted by theCourt in its judgement:

"The Norwegian Government does not rely uponhistory to justify exceptional rights, to claim areas of

4 8 Op. cit., page 45.4 9 Op. cit., page 46.60 ibid.5 1 International Court of Justice, Pleadings, Oral Arguments,

Documents, Fisheries Case, vol. I l l , pages 461-462.


sea which the general law would deny; it invokeshistory, together with other factors, to justify theway in which it applies the general law."52

54. Without passing judgement on these two oppos-ing opinions, it may be pointed out that there seem tobe certain difficulties inherent in the view that title to"historic waters" is an exception to the general rulesof international law regarding the delimitation of themaritime domain of the State and that such title there-fore must be based on some form of acquiescence onthe part of the other States. If such general rulesexist, and whatever their contents may be, they mustobviously be customary rules. When the Geneva Con-vention on the Territorial Sea and the Contiguous Zonecomes into force and is widely ratified, this situation willchange to a certain extent.53 For the present, however,the general rules in this field from which the regimeof "historic waters" would be an exception could onlybe customary rules. This means that both the generalrules and the title to "historic waters" would be basedon usage. Why then should the latter be considered asexceptional and also inferior with regard to its validity,so that the acquiescence of the other States would benecessary to validate the title? The facts on which thetitle to "historic waters" are based belong to the usagein this field, no less than the facts on which the generalcustomary rules would be based. And the opinio jurisexists in the case of "historic waters" just as much asin the case of the so-called general rules.

55. If there are general rules in this field, the mostthat could be asserted is that, within the framework ofcustomary international law, certain maximum limitsfor the territorial sea and the width of the opening ofbays are generally applicable and that in certain casesthere exists an historic title to waters which do notcome within these limits. The so-called general ruleswould then be "general" in the sense only that theywould be more generally applicable than the "excep-tional" title to "historic waters". But they would not be"general" in the sense of having a superior validity inrelation to the "exceptional" historic title. Both thegeneral rules and the historic title would be part ofcustomary international law, and there would be nogrounds for claiming a priori that the historic title isvalid only if based on the acquiescence of the otherStates.

56. However, it might be doubted whether it is evenpossible in this manner to distinguish within the frame-work of customary international law between a "gene-ral" regime and an "exceptional" regime based on anhistoric title. It may well be argued that a distinctionbetween "general" and "exceptional" in this case wouldbe wholly arbitrary. It could be said that only bya priori classifying certain cases as exceptional, or bya priori classifying certain cases as normal, can onearrive at general customary rules regarding such ques-tions as the limits of the territorial sea, bays, etc.

57. Furthermore, it may even be doubted whetherthere exist at present any general customary rules re-garding the delimitation of the maritime domain ofStates. The fact is that through the ages many con-flicting opinions have been expressed in the doctrineand in practice on these problems and that claims tomaritime areas have been made by States on groundswhich have varied greatly both within the same period

S2/.CJ. Reports, 1951, page 133.58 See below, paragraphs 72-79.

of time and from one time to another. Internationaldoctrine and practice therefore present a rather confus-ing picture in this respect. It is to be expected that theGeneva Conventions will, when they come into force,bring more stability to this field, but as far as thecustomary law is concerned the situation is far fromclear.

58. If that is true, the view that the regime of "his-toric waters" is an exceptional regime which deviatesfrom certain precise general rules of customary inter-national law becomes even more doubtful. If the rulesof customary international law on fundamental ques-tions such as the breadth of the territorial sea or thewidth of the opening of bays are in dispute between theStates, where are the general rules from which thehistoric title would be an exception? In these circum-stances, would not the most realistic view be not torelate the claim or right to "historic waters" to anygeneral customary rules on the delimitation of maritimeareas, as an exception or not an exception from suchrules, but to consider the title to "historic waters" in-dependently, on its own merits.54

59. It follows that also the problem of the elementsconstituting title to "historic waters" and the questionof proof have to be considered independently and noton the assumption that the title to "historic waters"constitutes an exception to general international law.In particular, the question if, or to what extent, a claimby a State to "historic waters" is subject to the acqui-escence of other States has to be studied without beingprejudiced by the a priori postulate that this is an excep-tional claim.

60. Some authors who consider that the regime of"historic waters" is an exception to the general rulesof international law regarding the delimitation of baysand other maritime areas use the existence of "historicbays" as conclusive proof of the existence of suchgeneral rules. Gidel says:

"The simple existence of this category of 'historicbays', which is not questioned by anyone, is of itselfenough to demonstrate conclusively the existence ofcustomary international law in the matter."55

This argument seems based on a petitio principii, foronly of it is already assumed that the regime of "his-toric bays" is an exception to certain general rules doesthe existence of "historic bays" imply the existence ofsuch general rules. Sir Gerald Fitzmaurice places theargument on a more practical level:

". . . it must be assumed that the historic principleremains—and if this is admitted, it follows at oncethat international law, even if it does not impose aten-mile limit [for bays], must still impose somelimit, for if there were no legal limitation on the sizeof bays all reason for claiming a bay on historicgrounds would disappear."56

There would, however, be a practical reason for claim-ing an historic title to bays or other maritime areas evenif there is no generally accepted legal limitation on thesize of bays or the breadth of the territorial sea. It issufficient that the claiming State itself or other States

54 Cf. Jessup, The Laiv of Territorial Waters and MaritimeJurisdiction (1927), pages 355 et seq.

55 Gidel, op. cit., page 537. See also the reply of the UnitedKingdom in the Fisheries case, International Court of Justice,Pleadings, Oral Arguments, Documents, Fisheries Case, vol. I I ,page 607.

56 British Year Book of International IMW, 1954, page 416.

Juridical regime of historic waters, including historic bays 11

hold that there is such a limitation to make it under-standable that a State may wish to base its claim onhistoric grounds. Only if there existed general andabsolute agreement among the States that there wasno limitation, would it be pointless to claim a maritimearea on historic grounds. It could even be asserted thatit is the uncertainty of the legal situation, not the cer-tainty that general rules of international law on thematter exist, which has given rise to the claims whichform the factual basis of the theory of "historic waters".

61. Intimately connected with the view that the re-gime of "historic waters" forms an exception to generalinternational law is the idea that the title to "historicwaters" is a kind of prescriptive right. This thought isclearly expressed in some of the statements quotedabove. It may therefore be of interest briefly to examinethat idea.

3. Is the title to "historic waters" a prescriptive right?

62. There has been much debate regarding the exist-ence of prescription in international law.57 Of the twomain forms of prescription, "extinctive prescription"(prescription liberatoire), or loss of a claim by failureto prosecute it within a reasonable time, has no appli-cation in the present context. In connexion with "his-toric waters" it is the other form of prescription, namely"acquisitive prescription" {prescription acquisitive),which may be of interest.

63. "Acquisitive prescription" means that a title tosomething, e.g., a territory, is acquired by prescription,i.e., by the lapse of time under certain circumstances.Within the category of "acquisitive prescription" twosub-categories can be distinguished. One is acquisitiveprescription based on "immemorial possession". In thiscase the original title is uncertain. It may have been avalid title or not; in any case the long lapse of timemakes it impossible to establish what the original legalsituation was. This uncertainty is cured and a valid titleis considered to be acquired by "immemorial posses-sion". The existence in international law of this kindof "acquisitive prescription" does not seem to be dis-puted. More controversial is the question whether theother sub-category of "acquisitive prescription" has aplace in international law. In this case, which is said tobe akin to the usucapio of Roman law, the original titleof the possessor is known to be defective. But becausethe possessor has enjoyed uninterrupted possession fora period of time under conditions which are consideredto imply acquiescence (in any case tacit consent) on thepart of the rightful title owner, the possessor is held tohave acquired through prescription a full and completetitle. Some authors have denied that this sort of acquisi-tive prescription exists in international law, because nofixed time for the necessary possession can be foundthere, in contrast to the situation in municipal lawwhere precise time-limits are prescribed. The majorityof writers, however, consider this to be a detail whichshould not prevent the acceptance in international lawof this kind of prescription which they find necessaryfor the preservation of international order and stability.Some even think that no distinction should be made

57 See, for instance, Oppenheim, International Lazv, vol. I,8th ed. (1955), pages 575-578; Verykios, La prescription endroit international public (1934) ; Soressen in Ada Scan-dinaznca Juris Gentium-, vol. 3 (1932), pages 145-170; Johnsonin British Year Book of International Lazv, vol. 27 (1950),pages 332-354; Pinto "La prescription en droit international",in Jiecueil des Cours de I'Academic de Droit International,vol. 87 (1955-1), pages 391-449.

between the two sub-categories of "acquisitive prescrip-tion", because the "immemorial possession" cannot inpractice be required to be literally "immemorial" andthat therefore, as far as the lapse of time is concerned,the two sub-categories tend to merge.58

64. This argument for the assimilation of the twosub-categories is, however, hardly sufficient. There isanother important difference between them, namely, adifference with respect to the original title. In one casethe original title is uncertain, in the other case it isknown to be defective. It would seem that the require-ments for remedying uncertainty should be less stringentthan those necessary to cure known illegality.

65. To what extent can the concept of prescriptionbe applied to "historic waters" ? This problem has tobe approached with some circumspection, for althoughthere seems to be no reason why prescription shouldnot apply to maritime areas as well as to areas of land,that does not necessarily mean that acquisitive prescrip-tion in both its forms is applicable to "historic waters".If, for instance, there is a dispute between two Statesregarding the sovereignty over a certain area of water,it is thinkable that one of the parties to the disputemight base its case on a prescriptive right to the area.But that would hardly be a case of "historic waters".The theory of "historic waters" is not used to decidewhether a maritime area belongs to one State or another."Historic waters" are not waters which originally be-longed to one State but now are claimed by anotherState on the basis of long possession. They are waterswhich one State claims to be part of its maritime terri-tory while one or more other States may contend thatthey are part of the high seas. To what extent then isprescription applicable to this latter situation?

66. As far as the first form of acquisitive prescriptionis concerned, i.e., prescription based on "immemorialpossession", this kind of prescriptive right does notseem to differ much from the historic title envisaged inthe theory of "historic waters". It refers to a situationwhere the original title is uncertain and is validated bylong possession. It is approximately the same situationas in the case of "historic waters". If nothing more isimplied in the term "prescriptive right", its applicationto "historic waters" seems innocuous, although not par-ticularly useful.

67. If, on the other hand, the term "prescriptiveright" refers to the second sub-category of acquisitiveprescription, mentioned above, it is more difficult toaccept the concept of prescription as applicable to"historic waters". In this case, prescription would meanthat an originally defective or invalid title is cured bylong possession. If applied to "historic waters" thatwould imply the assumption that according to the gen-eral rules of international law the waters were originallyhigh seas, but that through the effect of time (in theproper circumstances) an exceptional historic title tothe waters had emerged in favour of the coastal State.In other words, to consider the title to "historic waters"as a prescriptive right in this latter sense would reallybe to embrace the idea that the title to "historic waters"is an exception to the general rules of international lawregarding the delimitation of maritime areas.

68. It is to be feared that this is usually what isimplied when the term "prescriptive right" is used inconnexion with "historic waters". In order to avoid thatby the use of that term unwarranted assumptions are

58 Cf. Johnson, op. cit., pages 339-340.


brought into the argument, it would therefore be prefer-able not to refer to the concept of prescription in con-nexion with the regime of "historic waters".

4. Relation of "historic waters" to "occupation"

69. Another term which is occasionally used inconnexion with "historic waters" is "occupation", andit may therefore be useful briefly to examine whetherthere is a significant relation between these two concepts.

70. As is well known, occupation is an original modeof acquisition of territory. It is denned by Oppenheimas follows:

"Occupation is the act of appropriation by a Stateby which it intentionally acquires sovereignty oversuch territory as is at the time not under the sove-reignty of another State."59

A similar definition is given by Fauchille:"Generally speaking, occupation is the taking by

a State, with the intention of acting as the owner,of something which does not belong to any otherState but which is susceptible of sovereignty."60

Both authors agree that because of the freedom of thehigh seas, those seas cannot be the object of oc-cupation.61

71. This doctrine that occupation is an original modeof acquisition of territory but one which is not appli-cable to the high seas seems to be generally accepted atthe present time. A State could therefore hardly claiman area of water on the basis of occupation unless itaffirmed that the occupation took place before the free-dom of the high seas became part of international law.In that case the State would claim acquisition of thearea by an occupation which took place long ago.Strictly speaking, the State would, however, not assertan historic title but rather an ancient title based onoccupation as an original mode of acquisition of terri-tory. The difference may be subtle but should in theinterest of clarity not be overlooked: to base the title onoccupation is to base it on a clear original title whichis fortified by long usage.

5. "Historic waters" as an exception to rules laid downin a general convention

72. The difficulties inherent in the conception thatthe regime of "historic waters" is an exception to cus-tomary law have been discussed above. What is thesituation when the customary rules of international lawregarding the delimitation of the maritime domain ofthe State are codified? Does the regime of "historicwaters" then become an exceptional regime in the sensethat strict requirements regarding the establishment ofan area as "historic waters" are justified? To give ananswer, it is necessary to study the content of the codi-fied rules, the circumstances in which the rules wereadopted and the intention of the parties accepting them.

73. As the nearest approach to a codification of therules of international law regarding the territorial sea,the 1958 Geneva Convention on the Territorial Sea andthe Contiguous Zone is of particular interest. As men-tioned above, references to historic title occur in articles7 and 12 of that Convention. Article 7, which dealswith bays the coasts of which belong to a single State,

59 Oppenheim, International Law, volume I, 8th ed. (1955),page 555.

60 Fauchille, Traite de droit international public, vol. 1,part 2, 8th ed. (1925), pages 680-681.

61 Oppenheim, op. cit., page 556; Fauchille, op. cit., page 702.

contains a final paragraph stating that the foregoingprovisions of the article shall not apply to so-called"historic bays". In paragraph 1 of article 12, regardingthe delimitation of the territorial seas of States whosecoasts are opposite or adjacent, there is a clause say-ing that the provisions of the paragraph shall not applywhere by reason of historic title it is necessary todelimit the territorial seas in a different manner.

74. It seems to be clear both from the texts and fromthe relevant discussions at the Conference, related abovein the first section of this paper, that the purpose ofthese exception clauses in articles 7 and 12 was to main-tain with respect to the historic titles mentioned thestatus quo ante the entry into force of the Convention.As was indicated previously in this paper, the SecondCommittee of the 1930 Hague Codification Conferencetook the position in its report that the proposed codi-fication of the rules of international law regarding terri-torial waters should not affect the historic rights whichStates might possess over certain parts of their coastalsea. Articles 7 and 12 show that the 1958 GenevaConference on the Law of the Sea took the same positionregarding historic rights in relation to bays borderedby a single State or the delimitation of the territorialseas of States whose coasts are opposite or adjacent toeach other.

75. The question arises, however, what the situationis in cases where the historic title has not been expresslyreserved in the Convention. In principle, it seems thatthe answer must be: if the provisions of an articleshould be found to conflict with an historic title to amaritime area, and no clause is included in the articlesafeguarding the historic title, the provisions of thearticle must prevail as between the parties to the Con-vention. This seems to follow a contrario from the factthat articles 7 and 12 have express clauses reservinghistoric rights; articles without such a clause must beconsidered not to admit an exception in favour of suchrights.

76. Obviously the situation is different where a cer-tain subject-matter has not been regulated by the Con-vention. Such is the case with respect to bays, the coastsof which belong to two or more States, and also inregard to the breadth of the territorial sea. Here thesubject-matter is left completely untouched by theConvention; and as the Convention contains no relevantgeneral rules, it would of course be pointless to reservehistoric rights in this respect.62

77. Three hypotheses may therefore be envisaged:(i) The historic title relates to maritime areas not

dealt with by the Convention and the Convention hasconsequently no impact on the title;

(ii) The historic title relates to areas dealt with bythe Convention but is expressly reserved by the Con-

62 It may be interesting to note that while various proposalsfor regulating the breadth of the territorial sea were submittedat the two Geneva Conferences on the Law of the Sea, noneof these proposals contained clauses reserving historic titlesto certain areas of the sea. It was also fairly apparent fromthe discussion that the aim of the proposals was to arrive atrules which would have universal application. If any of theproposed regulations of the breadth of the territorial sea hadbeen accepted, such regulation would then have prevailed overconflicting historic titles to maritime areas. In view of thefact that none of the proposals acquired the necessary majority,it might perhaps be worth while, if and when the question of thebreadth of the territorial sea is again taken up for solution, toconsider whether an agreement on a proposal might be facilitatedif it contained a clause reserving historic rights.


vention. Also in this case the Convention has no impacton the title;

(iii) The historic title is in conflict with a provisionof the Convention and is not expressly reserved by theConvention. In that case, the historic title is supersededas between the parties to the Convention.

78. One can, of course, say in a certain sense thatan historic title which is expressly reserved, as is thecase in articles 7 and 12 of the Convention, thereby isimplicitly qualified as an exception. But it must not beforgotten that the whole purpose of making the historictitle an exception from the general rules contained inthe main provisions of the relevant article is to maintainthe historic title. It is not the intention, by excepting it,to subject the historic title to stricter requirements butto maintain the status quo ante with respect to the title.It would therefore be a fallacy if, from the fact thatthe Convention in certain cases excepts historic rights,one would draw the conclusion that the Conventionrequires stricter proof of the historic title than was thecase before the conclusion of the Convention. In reality,the Convention simply leaves the matter, both regardingthe existence of the title and the proof of the title, inthe state in which it was at the entry into force of theConvention.

79. The above discussion of the general aspects ofthe concept of "historic waters", its relation to generalinternational law and to certain other concepts such asprescription and occupation, has cleared the way for amore concrete study of the juridical regime of "historicwaters". The first problem to be taken up is the ques-tion, what conditions must be fulfilled in order that anhistoric title to water areas may arise or, in other words,the question of the elements constituting a title to"historic waters".

C. ELEMENTS OF TITLE TO "HISTORIC WATERS"

80. There seems to be fairly general agreement thatat least three factors have to be taken into considerationin determining whether a State has acquired a historictitle to a maritime area. These factors are: (1) theexercise of authority over the area by the State claimingthe historic right; (2) the continuity of this exerciseof authority; (3) the attitude of foreign States. First,the State must exercise authority over the area inquestion in order to acquire a historic title to it.Secondly, such exercise of authority must have con-tinued for a considerable time; indeed it must havedeveloped into a usage. More controversial is the thirdfactor, the position which the foreign States may havetaken towards this exercise of authority. Some writersassert that the acquiescence of other States is requiredfor the emergence of an historic title; others think thatabsence of opposition by these States is sufficient.

81. Besides the three factors just referred to a fourthis sometimes mentioned. It has been suggested thatattention should also be given to the question whetherthe claim can be justified on the basis of economicnecessity, national security, vital interest or a similarground. According to one view, such grounds shouldeven be considered to form the fundamental basis fora right to "historic waters", so that they would besufficient to sustain the right even if the historic elementwere lacking.

82. These various factors will be examined below.In order not to complicate the discussion unneces-sarily, it is assumed that there is only one coastal

State claiming historic title to the area. In a separatesub-section, the situation will thereafter be studiedwhich arises when "historic waters" are bordered bytwo or more States.

83. The method to be used will be an analysis ofproblems and principles rather than a discussion ofcases. For a more detailed presentation of both caselaw and opinions of writers reference may be made tothe Secretariat memorandum on "historic bays" (A/CONF.13/1).

1. Exercise of authority over the area claimed

84. Various expressions are used in theory andpractice to indicate the authority which a State mustcontinuously exercise over a maritime area in orderto be able validly to claim the area on the basis of anhistoric title. As examples may be mentioned: "ex-clusive authority", "jurisdiction", "dominion", "sove-reign ownership", "sovereignty".63 The abundance ofterminology does not, however, mean that there is agreat and confusing divergence of opinion regardingthe requirements which this exercise of authority wouldhave to fulfil. On the contrary there seems to be rathergeneral agreement as to the three main questions in-volved, namely, the scope of the authority, the acts bywhich it can be exercised and its effectiveness.

(a) Scope of the authority exercised

85. There can hardly be any doubt that the au-thority which a State must continuously exercise overa maritime area in order to be able to claim it validlyas "historic waters" is sovereignty. An authority morelimited in scope than sovereignty would not be suf-ficient to form a basis for a title to such waters. Thisview, which does not seem to be seriously disputed,is based on the assumption that a claim to an area as"historic waters" means a claim to the area as partof the maritime domain of the State. It is logical thatthe scope of the authority required to form a basis fora claim to "historic waters" will depend on the scopeof the claim itself. If, therefore, as is the generallyaccepted view,64 a claim to "historic waters'' meansa claim to a maritime area as part of the nationaldonKiin, i.e., i£ the claim to "historic waters" is aclaim to sovereignty over the area, then the authorityexercised, which is a basis for the claim, must also besovereignty.

86. This interrelationship between the scope of theclaim and the scope of the authority which the claim-ing State must exercise, and also the soundness ofthe assumption that the claim to "historic waters" isa claim to sovereignty over the waters, may be illus-trated by an example. Suppose that a State asserted,on a historical basis, a limited right related to acertain maritime area, such as the right for its citi-zens to fish in the area. This would not in itself be aclaim to the area as "historic waters". Nor could theState, even if it so wanted, claim the area as its "his-toric waters" on the basis of the fact that its citizenshad fished there for a long time. The claim would insuch case not be commensurate with the factual ac-tivity of the State or its citizens in the area. Supposeon the other hand that the State has continuously

6 3 For other examples see pages 4-7, 14, 15, 16-20, 32-33 of theSecretariat memorandum on "historic bays" (A/CONF.13/1) .

6 4 See Gidel, op. cit , pages 625 et seq. and the Secretariatmemorandum on "historic bays" (A/CONF.13/1) , pages 21et seq.


asserted that its citizens had the exclusive right tofish in the area, and had, in accordance with this as-sertion, kept foreign fishermen away from the area ortaken action against them. In that case the State infact exercised sovereignty over the area, and its claim,on a historical basis, that it had the right to continueto do so would be a claim to the area as its "historicwaters". The authority exercised by the State wouldbe commensurate to the claim and would form a validbasis for the claim (without prejudice to the conditionthat the other requirements for the title must also befulfilled).

87. The reasoning may be summarized as follows.A claim to "historic waters" is a claim by a State,based on an historic title, to a maritime area as partof its national domain; it is a claim to sovereigntyover the area. The activities carried on by the Statein the area or, in other words, the authority con-tinuously exercised by the State in the area must becommensurate with the claim. The authority exercisedmust consequently be sovereignty, the State must haveacted and act as the sovereign of the area.65

88. This does not mean, however, that the Statemust have exercised all the rights or duties which areincluded in the concept of sovereignty. The main con-sideration is that in the area and with respect to thearea the State carried on activities which pertain tothe sovereign of the area. Without venturing to presenta catalogue of such activities, some examples may begiven to illustrate the kind of acts by which the au-thority required as a basis for the claim might beestablished.

(b) Acts by which the authority is exercised

89. It may be useful to begin by quoting the opin-ions of some prominent writers on the subject. Gidel,in discussing what he calls the actes d'appropriationto which the claiming State must have proceeded, statesas follows:

"It is hard to specify categorically what kind ofacts of appropriation constitute sufficient evidence:the exclusion from these areas of foreign vessels ortheir subjection to rules imposed by the coastalState which exceed the normal scope of regulationsmade in the interests of navigation would obviouslybe acts affording convincing evidence of the State'sintent. It would, however, be too strict to insist thatonly such acts constitute evidence. In the Grisba-darna dispute between Sweden and Norway, thejudgement of 23 October 1909 mentions that 'Swe-den has performed various acts . . . owing to herconviction that these regions were Swedish, as, forinstance, the placing of beacons, the measurementof the sea, and the installation of a light-boat, beingacts which involved considerable expense and indoing which she not only thought that she was ex-ercising her right but even more that she was per-forming her duty'."66

90. Regarding the kind of acts mentioned in thefirst part of the above quotation, Bourquin is virtuallyin agreement with Gidel. Bourquin says:

"What acts under municipal law can be cited asexpressing its desire to act as the sovereign? Thatis a matter very difficult, if not impossible, to

65 Cf. Johnson, op. cit., pages 344-345 regarding the exerciseof authority necessary as a basis for acquisitive prescription.

C6 Gidel, op. cit., page 633.

determine a priori. There are some acts which aremanifestly not open to any misunderstanding in thisregard. The State which forbids foreign ships topenetrate the bay or to fish therein indisputablydemonstrates by such action its desire to act as thesovereign."67

He is more doubtful or flexible with respect to themeasures of assistance to navigation mentioned in thesecond part of Gidel's statement.

"There are, however, some borderline cases. Thus,the placing of lights or beacons may sometimesappear to be an act of sovereignty, while in othercircumstances it may have no such significance."68

91. Bustamante, in a draft convention prepared byhim with a view to assisting the 1930 Hague Codifica-tion Conference, included an article relevant to thequestion now discussed. It reads as follows:

"There are expected from the provisions of thetwo foregoing articles, in regard to limits and dis-tance, those bays or estuaries called historic, viz.,those over which the coastal State or States, ortheir constituents, have traditionally exercised andmaintained their sovereign ownership, either by pro-visions of internal legislation and jurisdiction, or bydeeds or writs of the authorities."69

92. Substantially the same article was included inthe "project" submitted in 1933 to the Seventh Inter-national Conference of American States by the Ameri-can Institute of International Law.70

93. In the Fisheries case, Norway stated in itsCounter-Memorial:

"It cannot seriously be questioned that, in theapplication of the theory of historic waters, actsunder municipal law on the part of the coastal Stateare of the essence. Such acts are implicit in anhistoric title. It is the exercise of sovereignty thatlies at the basis of the title. It is the peaceful andcontinuous exercise thereof over a prolonged periodthat assumes an international significance and be-comes one of the elements of the international juridi-cal order."71

And having asked how sovereignty is asserted, theCounter-Memorial replies:

"Above all, by action under municipal law (laws,regulations, administrative measures, judicial deci-sions, etc.)."72

94. The United Kingdom Government, while em-phasizing that they were not in itself sufficient to estab-lish the title, agreed that such acts by the State undermunicipal law (actes d'ordre interne} were essentialto the establishment of an historic title to a maritimeterritory.73

95. These examples furnish some guidance as tothe kind of acts which are required. In the first place

6 7 Bourquin, op. cit., page 43.6 8 Ibid. See also the statements emanating from the Ministry

of Foreign Affairs of the Netherlands in 1848 and quoted byGidel, op. cit., page 633, footnote 3.

«»Bustamante, The Territorial Sea (1930), page 142.7 0 See the Secretariat memorandum on "historic bays" ( A /

CONF.13/1), page 14.7 1 International Court of Justice, Pleadings, Oral Arguments,

Documents, Fisheries Case, vol. I, pages 567-568.i2 Ibid., page 568.7 3 Op. cit., vol. II, page 648. See also the Secretariat memo-

randum on "historic bays" (A/CONF.13/1) , page 32.


the acts must emanate from the State or its organs.Acts of private individuals would not be sufficient—unless, in exceptional circumstances, they might beconsidered as ultimately expressing the authority ofthe State. As Sir Arnold McNair said in his dissent-ing opinion in the Fisheries case:

"Another rule of law that appears to me to berelevant to the question of historic title is that someproof is usually required of the exercise of Statejurisdiction, and that the independent activity ofprivate individuals is of little value unless it canbe shown that they have acted in pursuance of alicence or some other authority received from theirGovernments or that in some other way their Gov-ernments have asserted jurisdiction through them."74

96. Furthermore, the acts must be public; they mustbe acts by which the State openly manifests its will toexercise authority over the territory. The acts musthave the notoriety which is normal for acts of State.Secret acts could not form the basis of a historic title;the other State must have at least the opportunity ofknowing what is going on.75

97. Another important requirement is that the actsmust be such as to ensure that the exercise of au-thority is effective.

(c) Effectiveness of authority exercised

98. On this point there is full agreement in theoryand practice. Bourquin expresses the general opinionin these words:

"Sovereignty must be effectively exercised; theintent of the State must be expressed by deeds andnot merely by proclamations."76

99. This does not, however, imply that the Statenecessarily must have undertaken concrete action toenforce its relevant laws and regulations within orwith respect to the area claimed. It is not impossiblethat these laws and regulations were respected withoutthe State having to resort to particular acts of enforce-ment. It is, however, essential that, to the extent thataction on the part of the State and its organs wasnecessary to maintain authority over the area, suchaction was undertaken.

100. The first requirement to be fulfilled in orderto establish a basis for a title to "historic waters" cantherefore be described as the effective exercise ofsovereignty over the area by appropriate action onthe part of the claiming State. We can now proceed tothe second requirement, namely, that this exercise ofsovereignty continued for a time sufficient to conferupon it the quality of usage.

2. Continuity of the exercise of authority: usage

101. A study of the extensive material included inthe Secretariat memorandum on "historic bays" (A /CON F.I 3/1) and drawn from State practice, arbitraland judicial cases, codification projects and opinionsof learned authors, provides ample proof of the domi-nant view that usage is required for the establish-ment of title to "historic waters". This view seemsnatural and logical considering that the title to the

74/.C.7. Reports, 1951, page 184. Cf. Pleadings, vol. II ,page 657.

75 The question of knowledge on the part of foreign Statesis further discussed below in paragraph 125 et seq.

76 Op. cit., page 43.

area is an historic title.77 A great variety of terms isused in describing and qualifying the usage required.A few of the terms employed in the codification pro-jects mentioned in the memorandum78 may illustratethis variety: "continuous usage of long standing"[usage continu et seculaire] (Institute of InternationalLaw 1894), "international usage" (Institute of Inter-national Law 1928), "established usage" (Harvarddraft 1930), "continued and well-established usage"(American Institute of International Law 1925),"established usage generally recognized by the na-tions" (International Law Association 1926), "im-memorial usage" (Japanese International Law Society1926), "continuous and immemorial usage" (Schiick-ing draft 1926).

102. The term "usage" is not wholly unambiguous.On the one hand it can mean a generalized patternof behaviour, i.e., the fact that many persons behavein the same (or a similar) way. On the other hand itcan mean the repetition by the same person of the same(or a similar) activity. It is important to distinguishbetween these two meanings or "usage", for whileusage in the former sense may form the basis of ageneral rule of customary law, only usage in the lattersense can give rise to a historic title.

103. As was established above, a historic title toa maritime area must be based on the effective exerciseof sovereignty over the area by the particular Stateclaiming it. The activity from which the required usagemust emerge is consequently a repeated or continuedactivity of this same State. The passage of time istherefore essential; the State must have kept up itsexercise of sovereignty over the area for a considerabletime.

104. On the other hand, no precise length of timecan be indicated as necessary to build the usage onwhich the historic title must be based. It must remaina matter of judgement when sufficient time has elapsedfor the usage to emerge. The addition of the adjective"immemorial" is of little assistance in this respect.Taken literally "immemorial" would be a wholly im-practical notion ;79 the term "immemorial" could, there-fore, at the utmost be understood as emphasizing, ina vague manner, the time-element contained in theconcept of "usage". It will anyhow be a question ofevaluation whether, considering the circumstances ofthe particular case, time has given rise to a usage.

105. Usage, in terms of a continued and effectiveexercise of sovereignty over the area by the Stateclaiming it, is then a necessary requirement for theestablishment of a historic title to the area by thatState. But is usage in this sense also sufficient? Thereseems to be practically general agreement that besidesthis national usage, consideration must also be givento the international reaction to the said exercise ofsovereignty. It is sometimes said that the nationalusage has to develop into an "international usage".This may be a way of underlining the importance ofthe attitude of foreign States in the creation of anhistoric title; in any case, a full understanding of thematter requires an analysis of the question how and to

77 Regarding the opinion which pays less attention to thepassage of time and lays more emphasis on the vital interestsof the State claiming the area, see below paragraphs 134et seq.

7» Pages 14-15.79 Cf. Johnson, op. cit., page 339.


what extent the reaction of foreign States influencesthe growth of such a title.

3. Attitude of foreign States

106. In essence, this is the problem of the so-calledacquiescence of foreign States. As was indicated above,according to a widely held opinion acquiescence in theexercise of sovereignty by the coastal State over thearea claimed is necessary for the emergence of anhistoric title to the area. The connexion between thisrequirement of acquiescence and the opinion that "his-toric waters" are an exception to the general rules ofinternational law governing the delimitation of mari-time areas was also pointed out above. It might berecalled that the argument was on the following lines.The State which claims "historic waters" in effectclaims a maritime area which according to generalinternational law belongs to the high seas. As thehigh seas are res commnnis omnium and not resnullius, title to the area cannot be obtained by occupa-tion. The acquisition by historic title is "adverseacquisition", akin to acquisition by prescription, inother words, title to "historic waters" is obtained bya process through which the originally lawful owners,the community of States, are replaced by the coastalState. Title to "historic waters", therefore, has itsorigin in an illegal situation which was subsequentlyvalidated. This validation could not take place by themere passage of time; it must be consummated by theacquiescence of the rightful owners.

107. The argument seems logically to imply thatacquiescence is a form of consent. However, here adifficulty arises. If acquiescence is a form of consent,acquiescence would amount to recognition of the sove-reignty of the coastal State over the area in questionand reliance on a historic title would be superfluous.If the continued exercise of sovereignty during a lengthof time had to be validated by acquiescence in themeaning of consent by the foreign States concerned,the lapse of time, i.e., the historical element, wouldbe immaterial.

108. Some of the defenders of the concept of acqui-escence, on the one hand, desiring to avoid a confu-sion with recognition and, on the other hand, unwillingto concede that the continued exercise of sovereigntyby the coastal State over the area claimed could initself constitute a historic title to the area, have en-deavoured to vindicate the idea of acquiescence byinterpreting it as an essentially negative concept. Theterm "acquiescence" is said to "describe the inactionof a State which is faced with a situation constitutinga threat to or infringement of its rights",80 or to meanthat the foreign States "have simply been inactive".81

The historic title would then be based on the continuedeffective exercise of sovereignty by the coastal Statesover the area in question combined with the inactionof the other States. In this view,

"the true role of the theory [of historic rights] isto compensate for the lack of any evidence of expressor active consent by States, by creating a presump-tion of acquiescence arising from the facts of thecase and from the inaction and toleration of States."82

80 McGibbon, "The Scope of Acquiescence in InternationalLaw", in British Year Book of International Law, vol. 31 (1954),page 143.

81 Fitzmaurice in British Year Book of International Law,vol. 30 (1953), page 29.

8- Fitzmaurice, ibid., page 30.

109. It is interesting to note that the protagonistsof the concept of acquiescence, if they reduce this con-cept to mean merely inaction or toleration, arrive ata position which is very near to the one taken by thosewho oppose the idea that the regime of "historicwaters" is an exceptional regime and the consequentidea that the acquiescence of foreign States is neces-sary to acquire a title to historic waters. Bourquin,who as was seen above, is a spokesman for the latteropinion, states the following:

"While it is wrong to say that the acquiescenceof these States is required, it is true that if theirreactions interfere with the peaceful and continuousexercise of sovereignty, no historic title can beformed.

"In such cases the question to be asked is notwhether the other States consented to the claims ofthe coastal State but whether they interfered withthe action of that State to the point of divesting itof the two conditions required for the formation ofan historic title.

"Obviously only acts of opposition can have thateffect. So long as the behaviour of the riparian Statecauses no protest abroad, the exercise of sovereigntycontinues unimpeded . . .

"The absence of any reaction by foreign States issufficient."83

110. The similarity of the final positions arrivedat, both by some of the proponents and some of theopponents of the notion of acquiescence is striking:both seem to agree that inaction on the part of foreignStates is sufficient to permit the emergence of a historicright. This would seem to suggest that the term "ac-quiescence" is ambiguous. In these circumstances, itmight perhaps be better, in the interest of clarity, notto use the term "acquiescence" in this context. Theterm seems at least prima facie to convey the idea ofconsent and its use can therefore result in the conclu-sion that a historic title can arise only if concurrenceon the part of foreign States has been demonstratedin a positive way. If the proponents of the necessity ofacquiescence really have in mind only the negativeaspect, i.e., toleration on the part of the foreign States,it would be preferable to use the term "toleration"which better expresses their thoughts. Moreover, thereshould be no difficulty in dropping the term "acqui-escence" once the dubious theory that title to "historicwaters" constitutes an exception to general interna-tional law has been discarded.

111. "Toleration" is furthermore the expressionused by the International Court of Justice in theFisheries case when discussing Norway's historic titleto the system of delimitation which was an issue in thedispute. The Court said, inter alia:

"In the light of these considerations, and in theabsence of convincing evidence to the contrary, theCourt is bound to hold that the Norwegian au-thorities applied their system of delimitation con-sistently and uninterruptedly from 1869 until the timewhen the dispute arose. From the standpoint ofinternational law, it is now necessary to considerwhether the application of the Norwegian systemencountered any opposition from foreign States . . .

83 Bourquin, op. cit., page 46. Bustamante is also against theidea of consent, see op. cit., page 100.


"The general toleration of foreign States withregard to the Norwegian practice is an unchal-lenged fact."84

The Court continued further on in its judgement:

"The Court notes that in respect of a situationwhich could only be strengthened with the passageof time, the United Kingdom Government refrainedfrom formulating reservations.

"The notoriety of the facts, the general tolerationof the international community, Great Britain's posi-tion in the North Sea, her own interest in the ques-tion, and her prolonged abstention would in any casewarrant Norway's enforcement of her system againstthe United Kingdom."85

In the Court's opinion, the consistent and prolongedapplication of the Norwegian system combined withthe general toleration of foreign States gave rise to ahistoric right to apply the system. This opinion seemsto correspond fairly well to the final positions takenboth by the proponents and the opponents of the con-cept of "acquiescence", as set out in paragraphs 108and 109.

112. However, even if it may be said that, whetherthe term "acquiescence" or the term "toleration" isused, there is substantial agreement that inaction onthe part of foreign States is sufficient to permit anhistoric title to a maritime area to arise by effectiveand continued exercise of sovereignty over it by thecoastal State during a considerable time, all difficultiesin this respect are not solved. It is true, of course,that if there has been no reaction at any time fromany foreign State, then there is no difficulty. But whathappens if at any one time or another opposition fromone or more foreign States occurred? Does any kindof opposition by any one State at any time precludethe historic title? It is prima jade highly improbablethat the terms "inaction" or "toleration" would haveto be interpreted so strictly. Before attempting a moreprecise answer, it would, however, be useful to ex-amine more closely the three points which seem to beinvolved, namely, (i) what kind of opposition wouldprevent the historic title from emerging, (ii) how wide-spread in terms of the rmmbcr of opposing States mustthe opposition be, and (iii) when must the oppositionoccur.

113. With regard to the first point, it is obviousthat the opposition ending the inaction must be ex-pressed in some kind of action. In the passage quotedabove in paragraph 109, Bourquin states that:

". . . if their reactions [i.e., of foreign States]prevent the peaceful and continuous exercise of sove-reignty, no historic title can be formed."86

Indeed, it is hardly doubtful that opposition by forceon the part of foreign States would be a means ofinterrupting the process by which a historic title isformed. On the other hand it cannot be assumed thatBourquin, despite the use of the word paisible, wouldconsider only opposition by force as effectively prevent-ing the creation of a historic title. He also says in thepassage quoted above that:

" . . . so long as the behaviour of the riparian Statecauses no protest abroad, the exercise of sovereigntycontinues unimpeded."87

This seems to imply also a protest could be a meansof hindering the emergence of a historic right.

114. If that is so, Bourquin's view would not befar from the opinion expressed by Fitzmaurice inthese words:

"Protest, in some shape or form or equivalentaction, is necessary in order to stop the acquisitionof a prescriptive right."88

In a footnote Fitzmaurice goes on to describe theaction in question as follows:

"Apart from the ordinary case of a diplomaticprotest, or a proposal for reference to adjudication,the same effect could be achieved by a public state-ment denying the prescribing country's right, byresistance to the enforcement of the claim, or bycounter-action of some kind."89

115. These are some of the acts by which the oppo-sition of foreign States could be expressed, and thereare, no doubt, other means which could be used. Moreimportant than establishing a list of acts, is to em-phasize that whatever the acts they must effectivelyexpress a sustained opposition to the exercise of sove-reignty by the coastal State over the area in question.To quote Fitzmaurice again:

"Moreover the protest must be an effective onedepending on what the circumstances require. Asimple protest may suffice to begin with, but thismay not be enough as time goes on."90

Should despite the protest the coastal State continueto exercise its sovereignty over the area, the opposi-tion on the part of the foreign State must be main-tained by renewed protests or some equivalent action.

116. The second point to be examined is how widethe opposition must be, to prevent the creation of ahistoric title. Is it sufficient that a single State effec-tively expresses its opposition? Hardly anybody wouldgo as far as that. Gidel says on this point:

"A single objection formulated by a single Statewill not invalidate the usage; furthermore all ob-jections cannot be placed on an equal footing, re-gardless of their nature, the geographical or othersituation of the objecting State."91

Bourquin92 agrees with Gidel that one opposing Statewould not be sufficient to invalidate the usage. Thisseems, moreover, to be a generally accepted opinion.If the total absence of opposition is not a necessaryrequirement for the emergence of a historic right,it would seem to be a matter of judgement, subjectto the circumstances in the particular case, how wide-spread the opposition must be to prevent the historictitle from materializing.

117. In this connexion it is interesting to note, inthe above quotation, that Gidel is not willing to placeall the opposing States on the same level. The oppositionof one State may according to circumstances carrymore weight than the opposition of another State.

84 Fisheries case, Judgement of 18 December 1951, I.C.J.Reports, 1951, page 138.

Mlbid., page 139.8 6 Bourquin, op. cit , page 46.

87 ibid.88 British Year Book of International Law, vol. 30 (1953),

page 42. A historic right to a maritime area is in Fitzmaurice'sopinion a prescriptive right, see op. cit., pages 27-28

8 9 Op. cit., page 42, footnote 1.9 0 Op. cit., page 42, see also pages 28-29.9 1 Gidel, op. cit., page 634.9 2 Bourquin, op. cit., pages 47-48.


Fitzmaurice follows the same line of reasoning whenhe says:

"It is obvious that, depending on the circumstances,the acquiescence of certain States must be of fargreater weight and moment in establishing the ex-istence of a prescriptive or historic right than thatof others. Thus the consent, either expressly givenor reasonably to be inferred, of those States which,whether on account of geographical proximity, orcommercial or other interest in the subject-matter,etc., are directly affected by the claim, may be almostenough in itself to legitimize it; while a clear ab-sence of consent on the part of such States wouldcertainly suffice to prevent the establishment of theright. Equally, acquiescence or refusal on the partof States whose interest in the matter, actual or po-tential, is non-existent, or only slight, may have littlepractical significance."93

118. The position, outlined in the passages quotedfrom Gidel and Fitzmaurice, that the same weightneed not be accorded to the attitude of each State, seemsto be reasonable and realistic. It may, perhaps, bepointed out, however, that this position is hardlyconsonant with the assumption that the right to "his-toric waters" is an exception to the general rules ofinternational law. If that assumption were correct, ifthe State claiming "historic waters" were really claim-ing a part of the high seas, a part of a res communis,unless a historic title could be established, it wouldseem that any State, any member of the communityof States, should be able to prevent by its oppositionthe emergence of the historic title. How could in suchcase some States be entitled to give away rights whichbelong to all States and how could in the matter ofacquiescence or opposition greater weight be given toone State than to the other? On the other hand, if itis admitted that the legal situation regarding the delimi-tation of the maritime territory of States is not clear,that the customary international law in this respect isin doubt, and that it is against that background thatthe existence or non-existence of historic rights toparticular areas has to be considered, then the viewseems sensible and practical that this question ofopposition is a question of appreciation, not a questionof arithmetic, and that the opposition of one State inview of the circumstances in the particular case maywell be of greater importance than that of anotherState.

119. In this connexion, it may be useful to try tovisualize how a dispute with respect to "historic waters"is most likely to arise. Although it is theoretically pos-sible, it is not probable that a dispute will arise becauseall or most foreign States refuse to recognize thehistoric right of a coastal State to a certain maritimearea. Many States may have no great interest in thequestion and would therefore have no reason to goout of their way to antagonize the coastal State. Thedispute would be most likely to arise through theopposition of neighbouring States or of those Stateswhich have a particular interest in the area. It wouldtherefore be only natural if the arbitrator or tribunalhaving to settle the dispute paid particular attentionto the previous attitute of those States and, in deter-mining the existence of an historic title, gave specialweight to the fact that these States, in the formativeperiod of the disputed title, had or had not effectively

93 Fitzmaurice, op. cit., pages 31-32.

opposed the exercise of sovereignty by the coastal Stateover the area in question.

120. With regard to point two, relative to thequestion how wide-spread the opposition must be topreclude the emergence of an historic title, it maytherefore be said that this is a matter of appreciationin the light of the circumstances in each case. Howthis appreciation may be made, can be illustrated bythe last part of the statement of the International Courtof Justice in the Fisheries case, referred to above inparagraph 111:

"The notoriety of the facts, the general tolerationof the international community, Great Britain's posi-tion in the North Sea, her own interest in thequestion, and her prolonged abstention would in anycase warrant Norway's enforcement of her systemagainst the United Kingdom."94

121. It remains to deal with the third point, namely,the question at what time the opposition must occurin order to prevent the creation of an historic title.It is evident that the opposition must have been effec-tively expressed before the historic title came intobeing. After a State has exercised sovereignty over amaritime area during a considerable time under gen-eral toleration by the foreign States, and an historicright to the area has thus emerged, it is not possiblefor one or more States to reverse the process bycoming forward with a protest against the accomplishedfact. The historic title is already in existence and standsdespite the belated opposition.

122. However, by this general and rather obviousstatement the problem is not solved. There are in anycase two questions which need to be discussed in thisconnexion. The first question is: how long is theconsiderable time during which sovereignty has to beexercised and tolerated? The second question is: fromwhat moment does this time start to run?

123. Regarding the first question it can only besaid that the length of time necessary for a historicright to emerge is a matter of judgement; no precisetime can be indicated. However, as the exercise ofsovereignty has to develop into a usage the length oftime must be considerable. Reference may be made inthat respect to the explanations given above in para-graphs 101-104.

124. The second question has several aspects. Inthe first place the time cannot begin to run until theexercise of sovereignty has begun. As was said above,the exercise of sovereignty must be effective and publicand the time can therefore not begin to run until thesetwo conditions have been fulfilled.

125. Here a problem arises: is it sufficient thatthe exercise of sovereignty is public or is it also neces-sary that the foreign States actually have knowledgeof this exercise of sovereignty? In other words, can aforeign State offer as a valid excuse for its inaction,the fact that it had no actual knowledge of the situa-tion, and demand that the time within which it mustmanifest its opposition should be construed to runonly from the moment it received such knowledge?

126. Those who consider the right to "historicwaters" to be an exception to general internationallaw and therefore have a tendency to require at leasttacit or presumed consent on the part of foreign States,are also inclined to require knowledge of the situa-

.CJ. Reports, 1951, page 139.


tion by these States, in order that absence of opposi-tion may be held against them. For instance Fitz-maurice states:

"Clearly, absence of opposition is relevant onlyin so far as it implies consent, acquiescence ortoleration on the part of the States concerned; butabsence of opposition per se will not necessarily oralways imply this. It depends on whether the cir-cumstances are such that opposition is called forbecause the absence of it will cause consent or ac-quiescence to be presumed. The circumstances arenot invariably of this character, particularly for in-stance where the practice or usage concerned hasnot been brought to the knowledge of other States,or at all events lacks the notoriety from which suchknowledge might be presumed: or again, if the prac-tice or usage concerned takes a form such that itis not reasonably possible for other States to inferwhat its true character is."95

127. The preference is evident in the quotation fora system according to which consent or acquiescenceon the part of foreign States is required and con-sequently also their knowledge of the situation. On theother hand, the language used seems to indicate thatalso implied consent and presumed knowledge wouldbe sufficient. The requirement of knowledge and con-sent seems to be more theoretical than real; in theend the author seems to be satisfied with notoriety fromwhich knowledge may be presumed.

128. In any case, nobody seems to demand that thecoastal State must formally notify each and all of theforeign States that it has assumed sovereignty over thearea, before the time necessary to establish a usagewill begin to run. If that is so, the notoriety of thesituation, the public exercise of sovereignty over thearea, would in reality be sufficient. It may, moreover,be recalled that in the Fisheries case, the InternationalCourt of Justice referred to

"the notoriety essential to provide the basis of anhistoric title."96

129. Against this opinion that notoriety is sufficient,the objection has been made that its effect would beto place an excessive burden of vigilance on States, asthey would be forced to follow the activities of thelegislative and executive organs of other States moreclosely than is usually the case.07 It is, however, doubt-ful if this objection is justified. It may be argued thatif a State had a real interest in a maritime area itwould be natural for that State to follow closely whatwas going on there, and that the fact that the Statewas unaware of the situation was a good indicationthat its interest in the area was slight or non-existent.It might happen that at a later stage the State de-veloped an interest in the area and so became aware ofthe circumstance that the coastal State for a longtime had exercised sovereignty over it. If the new-comer State now found that this was against its in-terests, is it really a justifiable view to assert that thisState could validly object to the coastal State's claimto an historic title to the area on the ground that itdid not know until recently what was going on in thearea?

95 British Year Book of International Lazv, vol. 30 (1935),page 33.

»«/.C./. Reports, 1951, page 139.97 Cf. British Year Book of International Law, vol. 30 (1953),

page 42.

130. In conclusion therefore, there seem to be strongreasons for holding that notoriety of the exercise ofsovereignty, in other words, open and public exerciseof sovereignty, is required rather than actual knowl-edge by the foreign States of the activities of the coastalStates in the area.

131. Assuming now that the time necessary for theformation of a historic title has begun to run, suf-ficient opposition to block the title may not be forth-coming immediately. One or two States may protest,but still the over-all situation may be one of generaltoleration on the part of the foreign States. Opposi-tion may build up successively and finally reach astage where it no longer can be said that the exerciseof sovereignty of the coastal State over the area isgenerally tolerated. Thereby the emergence of the his-toric title will be prevented, provided that this stageis not reached too late, i.e., at a time when the titlehas already come into existence because sufficient timeunder the condition of general toleration has alreadyelapsed. There would therefore be a kind of race takingplace between the lapse of time and the building upof the opposition. The outcome of the race is neces-sarily a matter of judgement as there are no precisecriteria to be applied to either of the two competingfactors. There is no precise time limit for the lapseof time necessary to allow the emergence of the historicright, and there is no precise measure for the amountof opposition which is necessary to exclude "generaltoleration".

132. This concludes the discussion of the three fac-tors which according to the dominant opinion have tobe taken into consideration in determining whether aright to "historic waters" has arisen. The result of thediscussion would seem to be that for such a title toemerge, the coastal State must have effectively ex-ercised sovereignty over the area continuously duringa time sufficient to create a usage and have done sounder the general toleration of the community ofStates.

133. It remains to study the fourth factor which issometimes referred to, namely, the question of thevital interests of the coastal State in the area.

4. Question of the vital interests of the coastal Statein the area claimed

134. The Secretariat memorandum on "historicbays" (A/CONF.13/1), paragraphs 151 et seq., de-scribes a view taken by some authors and Govern-ments, according to which a right to "historic bays"may be based not only on long usage, but also onother "particular circumstances" such as geographicalconfiguration, requirements of self-defence or othervital interests of the coastal State. The origin of thisidea is usually ascribed to Dr. Drago's dissenting opin-ion in the North Atlantic Coast Fisheries Arbitration(1910) where he stated that:

"a certain class of bays, which might be properlycalled the historical bays, such as Chesapeake Bayand Delaware Bay in North America and the greatestuary of the River Plate in South America, forma class distinct and apart and undoubtedly belong tothe littoral country, whatever be their depth of pene-tration and the width of their mouths, when suchcountry has asserted its sovereignty over them, andparticular circumstances such as geographical con-figuration, immemorial usage and above all, the


requirements of self-defence, justify such a preten-tion."98

The basis for Dr. Drago's statement is evidently thatin the classical cases of "historic bays" such as Chesa-peake Bay and Delaware Bay, such "particular cir-cumstances" were put forward in justification of theclaims.

135. The significance of this line of thought is notso much that usage may have to be fortified by otherreasons such as geographical configuration or vital in-terest in order to form a firm basis for a claim to"historic bays". It is rather that these other "par-ticular circumstances" may justify the claim withoutthe necessity of establishing also "immemorial usage".This is in any case the direction in which the ideadeveloped, as may clearly be seen from the informationgiven in the Secretariat memorandum.

136. Illuminating in this respect is article 7 of thedraft international convention submitted at the BuenosAires Conference of the International Law Associa-tion in 1922 by Captain Storny, reading as follows:

"A State may include within the limits of its terri-torial sea the estuaries, gulfs, bays or parts of theadjacent sea in which it has established its jurisdic-tion by continuous and immemorial usage or which,when these precedents do not exist, are unavoidablynecessary according to the conception of article 2;that is to say, for the requirements of self-defence orneutrality or for ensuring the various navigation andcoastal maritime police services."99

137. Also important is the statement of the Por-tuguese representative at the 1930 Hague CodificationConference:

"Moreover, if certain States have essential needs,I consider that those needs are as worthy of respectas usage itself, or even more so. Needs are imposedby modern social conditions, and if we respect age-long and immemorial usage which is the outcomeof needs experienced by States in long past times,why should we not respect the needs which modernlife, with all its improvements and its demands, im-poses upon States."100

138. There is undoubtedly some justification forthis view, and it is also understandable that it appealsto States which reached independence rather late andtherefore are not able to base these claims on longusage.101.

139. On the other hand it hardly seems appropriateto deal with the problem of these vital needs in thecontext of "historic bays". Bourquin, who otherwiseappreciates the importance of the vital interests of theState with regard to bays, says in this respect:

"But why should this factor be considered strictlywithin the context of 'historic titles'? Howeverwidely the concept of a 'historic title' is construed,surely it cannot be claimed in circumstances wherethe historic element is wholly absent. The 'historictitle' is one thing; the 'vital interest' is another."102

It is difficult to disagree with that opinion.

9 8 See quotation in A/CONF.13/1 , paragraph 92.9 9 Ibid., paragraph 152.100 ibid., paragraph 155.1 0 1 See the statement by Mr. Garcia-Amador in the Inter-

national Law Commission and referred to in the footnote toparagraph 7 above.

1 0 2 Bourquin, op. cit., page 51, quoted and translated inA/CONF.13/1 , paragraph 158.

140. Attention may also be drawn to another aspectof the matter, which seems worth considering. In aconvention on the territorial sea, it makes good senseto reserve the position of "historic bays". On thecontrary, giving the parties the right to claim "vitalbays" would come near to destroying the usefulnessof any provision in the convention regarding the defini-tion or delimitation of bays.

5. Question of "historic waters" the coasts of whichbelong to tzvo or more States

141. In the foregoing discussion, it has been as-sumed that there was only one riparian State border-ing the area in question and that therefore one Statealone was interested in claiming it. What is the situa-tion if there are two or more States bordering thearea? Will that circumstance materially change therequirements discussed above for the emergence of anhistoric title to the area? Without pretending to dealwith the matter exhaustively, a few considerations maybe offered with respect to this problem.103

142. These questions may be discussed in regardto two different geographical settings both of whichare in some way related to the 1958 Geneva Conven-tion on the Territorial Sea and the Contiguous Zone.

143. Article 12 of the Convention deals with thesituation where the coasts of two States are oppositeor adjacent to each other, and paragraph 1 of thearticle provides as follows:

"Where the coasts of two States are oppositeor adjacent to each other, neither of the two Statesis entitled, failing agreement between them to thecontrary, to extend its territorial sea beyond themedian line every point of which is equidistantfrom the nearest points on the baselines from whichthe breadth of the territorial seas of each of thetwo States is measured. The provisions of this para-graph shall not apply, however, where it is necessaryby reason of historic title or other special circum-stances to delimit the territorial seas of the twoStates in a way which is at variance with this pro-vision."104

144. It does not seem that in this case the factthat there is more than one coastal State would materi-ally change the requirements for the establishmentof an historic title. There is no doubt that an historictitle can arise in that situation; at least this is assumedby the wording of the article. In other words, theemergence of an historic title for one of the coastalStates is not prevented by the mere existence of anothercoastal State. On the other hand, in evaluating theattitude of the foreign States regarding the claim toan historic title,105 it would seem reasonable to payspecial attention to the attitude of the other coastalStates.

145. The second geographical situation of relevanceis the case of a bay bordered by two or more States.106

This situation is related to the above-mentioned GenevaConvention in a negative way, as its article on bays(article 7) deals only with bays the coasts of which

1 0 3 The question is also dealt with in the Secretariat memo-randum on "historic bays" A/CONF.13/1 , paras. 44-47 and131-136.

1 0 4 United Nations Conference on the Law of the Sea,Official Records, vol. II , page 133.

1 0 5 Cf. above paragraphs 117-119.1 0 0 Cf. Gidel, op. cit., pages 626-627.


belong to a single State. The reason for this limitationon the scope of the article was that the InternationalLaw Commission, which prepared the text formingthe basis of the Convention, considered that it didnot have enough information regarding bays surroundedby two or more States to include provisions regardingthem. The question of such bays was therefore leftopen as far as the Convention is concerned, and itwould, indeed, seem to be a problem which couldbe discussed in depth only after additional informationon the matter has been received from Governments.The few remarks which are made below in this paperare therefore of a very preliminary character.

146. Historic claims to a bay bordered by two ormore States might be envisaged in two different circum-stances. The claim may be made jointly by all thebordering States or it may be presented by one ormore, but not all of these States.

147. If all the bordering States act jointly to claimhistoric title to a bay, it would seem that in principlewhat has been said above regarding a claim to historictitle by a single State would apply to this group ofStates. One problem which might be raised in thisconnexion, without any attempt being made to solveit, is whether sovereignty over the bay must duringthe required period have been exercised by all theStates claiming title or whether it is sufficient thatduring that period one or more of them exercisedsovereignty over the bay.

148. The second hypothesis in which a claim toa bay bordered by two or more States might be en-visaged arises where only one or several of themjointly, but not all of them, claim the area. In thiscase, it is rather improbable that a historic title tothe bay could ever arise in favour of the claimingState or States. For it must be expected that an attemptto exercise sovereignty over the bay on the part of oneor some of the riparian States would cause immediateand strong opposition on the part of the other riparianState or States. It would therefore be difficult to im-agine that the requirement of toleration by foreignStates could in these circumstances be fulfilled. It mustbe emphasized in this connexion that, when it was saidabove that the opposition of one or two foreign Stateswould not necessarily exclude the existence of a gen-eral toleration on the part of foreign States, this state-ment referred to waters bordered by a single coastalState. In the case of a bay surrounded by severalStates, the persistent opposition by one or more ofthe riparian States to the exercise of sovereignty overthe bay by one or more of the other riparian Statesmust naturally be of great if not decisive importancein evaluating whether or not the requirement of tolera-tion had been fufilled.

D. BURDEN OF PROOF

149. As the existence of a right to "historic waters"is to such a large extent a matter of judgement, thequestion of proof and in particular the problem ofthe burden of proof would seem to be of a rathersecondary interest. The task of the parties to a disputeseems to be less to establish certain facts than to per-suade the judges to follow their respective opinionsregarding the evaluation of the facts. Still the ques-tion of the burden of proof cannot be ignored, inparticular since it is one of the problems usually raisedin connexion with the right to "historic waters".

150. In the memorandum of the Secretariat on"historic bays" (A/CONF.13/1), paragraphs 164-166,attention was drawn to certain significant statementsin doctrine and practice regarding the onus of proofwith respect to "historic waters". Gidel is quoted asfollows:

"The onus of proof rests on the State whichclaims that certain maritime areas close to its coastpossess the character of internal waters which theywould not normally possess. The coastal State isthe petitioner in this sort of action. Its claims consti-tute an encroachment on the high seas; and it wouldbe inconsistent with the principle of the freedomof the high seas, which remains the essential basisof the whole public international law of the seas,to shift the onus of proof onto the States prejudicedby that reduction of the high seas which is the con-sequence of the appropriation of certain watersby the claimant State."107

151. Reference is also made to Basis of DiscussionNo. 8 submitted to the 1930 Hague Codification Con-ference and reading:

"The belt of territorial waters shall be measuredfrom a straight line drawn across the entrance ofa bay, whatever its breadth may be, if by usagethe bay is subject to the exclusive authority of thecoastal State; the onus of providing such usage isupon the coastal State."108

152. Finally it is pointed out that in the Fisheriescase, the United Kingdom and Norway agreed that theonus of proof was on the State claiming a historictitle, although they disagreed regarding the conditionsand nature of the proof.It may be interesting to quote the parties themselvesin that respect. The Norwegian Government statedin its Counter-Memorial under the title "the proofof an historic title":

"The usage must be proved by the State whichinvokes it. Regarding this principle the NorwegianGovernment agrees with the United Kingdom Gov-ernment. But it does not agree with it regardingthe conditions of proof to be met and especiallyregarding the nature of the elements of proof to beproduced."109

The United Kingdom Government said:"The Norwegian Government... while disputing

the contentions of the United Kingdom Governmentin regard to the conditions and nature of the proofof an historic title, agrees that the burden of prooflies upon the State which invokes the historic title.This admission that the burden of proof lies uponthe claimant State was only to be expected in viewof the abundant authority to that effect. The roleof the historic element being to validate what isan exception to general rules and therefore intrinsi-cally invalid, it is natural that the burden of proofshould so emphatically be placed upon the coastalState. . . ,"110

153. There is doubt that there is abundant authorityfor the view that the burden of proof lies upon the

1 0 7 Gidel, op. cit., page 632.1 0 8 Acts of the Conference for the Codification of Inter-

national Laiv, vol. I l l : Meetings of the Second Committee,page 179; also cited in the aforesaid memorandum by theSecretariat (A/CONF.13/1) , para .87 .

109 International Court of Justice, Pleadings, Oral Argu-ments, Documents, Fisheries Case, vol. I, page 566.

" 0 Op. cit., vol. II, pages 645-646.


claimant State. Some who hold that view are mainlyinfluenced, as is evident from the statements of Gideland of the United Kingdom, by their belief that thehistoric title is an exception to the general rules ofinternational law and that "historic waters" is anencroachment on the freedom of the high seas. Thedifficulties involved in this line of reasoning havebeen referred to above and may be borne in mindalso with respect to the question of the burden ofproof. Others who say that the burden of proof liesupon the claimant may do so merely because it seemsto restate a widely accepted procedural rule. It can,however, be doubted that the rule that the Stateclaiming historic title has the burden of proof is equalto the procedural rule that the claimant must provehis case. The meaning of the former rule is evidentlythat the burden of proof lies on the State claimingthe title whether that State is the claimant or thedefendant in a dispute.

154. Moreover, the statement that the burden ofproof is on the State claiming the historic title doesnot have a very precise meaning. It is significant inthat respect that it could be accepted by both partiesin the Fisheries case although they disagreed sharplyas to what had to be proved and how. For the purposeof a useful discussion of the question, it is necessaryto relate the burden of proof to the various factorswhich must be present to create an historic title to amaritime area.

155. As was pointed out above, the first requirementfor the development of an historic right to a maritimearea is the effective exercise of sovereignty over thearea by the State claiming the right. There seems to beno doubt that the State claiming the area has to showthat it has exercised the required sovereignty. To dothat it would have to prove certain facts such as forinstance that in certain instances it enforced its lawsand regulations in or with respect to the area. Thesefacts the State must prove to the satisfaction of thearbitrator (or Court or whoever has to decide whetherthe title exists or not). The opposing State (or States)might perhaps allege other facts intended to show thatthe required exercise of sovereignty did not take place,and the latter State must then show these facts to thesatisfaction of the arbitrator. Each of the opponentstherefore bears the burden of proof with respect to thefacts on which they rely. On the basis of the factswhich he considers to be proved, the arbitrator thendecides whether it has been demonstrated that the re-quired sovereignty was exercised. Obviously, this in-volves an evaluation not only of the evidence presentedregarding the facts but also of the importance of thesefacts as signs of the alleged exercise of sovereignty.If the arbitrator finds that effective sovereignty has notbeen exercised, the State claiming the historic title losesthis necessary basis for its claim. In that sense theburden of proof with respect to the exercise of sove-reignty is undoubtedly on the State claiming the title.

156. In order to give rise to an historic title, theexercise of sovereignty, as was seen above, must notonly be effective but also prolonged, continued. It mustdevelop into a national usage. To persuade the arbitra-tor that this is the case, the State claiming title wouldagain bring forward certain facts such as the fact thatthe enforcement of its laws and regulations had goneon for a number of years. These facts the State wouldhave to prove. The opposing State (or States) mightagain allege other facts which in its opinion indicated

that the claiming State had not been able to maintainits authority over the area uninterruptedly and thattherefore, no prolonged, continued exercise of sove-reignty had taken place. The opposing State would haveto prove the facts on which its contentions were based.The arbitrator would then again have to evaluate thefacts which he considers as established in order to decidewhether or not an effective exercise of sovereignty bythe State claiming title had taken place continuouslyduring a sufficient period for a usage to have developed.If he finds that this was not the case, the State claimingtitle would have lost a necessary basis for its claim andin that sense it therefore carries the burden of proofregarding this point.

157. The third factor to take into consideration inrelation to the emergence of an historic title is theattitude of the foreign States. The problem of theburden of proof is slightly more complicated with re-spect to this factor, because of the two views opposingeach other in this respect: one, that "acquiescence" inthe meaning of tacit or presumed consent by the foreignStates is required for the emergence of the historictitle, and the other, that "general toleration" on thepart of these States is sufficient. The general pattern ofproof will, however, be the same as in regard to theprevious factors. Whether the State claiming the titleendeavours to prove "acquiescence" or "toleration",it will assert certain facts in support of its contentionthat "acquiescence" (or "toleration") existed, and thesefacts the State would have to prove to the satisfactionof the arbitrator. And similarly the opponent (or op-ponents) would bring forward certain facts in supportof his assertion that "acquiescence" (or "toleration")did not exist; for these facts, the opponent would havethe burden of proof. The facts upon which the claimingState and the opposing State (or States) rely may notbe the same, if they attempt to prove (or disprove)"acquiescence" as if they attempt to prove (or disprove)"toleration", but in either case they have the burdenof proof for the facts which they allege. Whether"acquiescence" or "toleration" is required is not aquestion of fact but a question of law, and each of theparties will no doubt try to persuade the arbitratorthat its view in this respect is correct, but this is not aquestion of evidence. Finally the arbitrator will decidewhether "acquiescence" or "toleration" is the necessaryrequirement and on the basis of the facts he will alsodecide whether the requirement of "acquiescence" (or"toleration") was fulfilled. If he comes to the conclusionthat this was not the case, the State claiming title losesan indispensable basis for its claim of title, and in thatsense it bears the burden of proof.

158. In summarizing this discussion of the problemof the burden of proof, it may be said that the generalstatement that the burden of proof is on the Stateclaiming historic title to a maritime area is not of muchvalue. If the statement means that, should the arbitra-tor (or whoever has to decide) not find that all theelements of the title (all the requirements for the exist-ence of the title) are present, the State claiming thetitle will lose, then the statement simply asserts theobvious. The elements of the title have evidently to beproved to the satisfaction of the arbitrator, otherwise hewill not accept the title. And this holds true whetheror not the title is considered to be an exception to thegeneral rules of international law, so that burden ofproof is not really a logical consequence of the allegedlyexceptional character of the title. In a dispute, each


party has to prove the facts on which he relies, other-wise the arbitrator will not take these alleged facts intoaccount. Furthermore, as regards the interpretation ofthe law and the evaluation of the facts in the light ofthis interpretation, each party will naturally try topersuade the arbitrator to adopt the party's views inthis respect; to the extent that the party does not suc-ceed in this, it will obviously have to bear the burdenof his failure.

159. On the basis of what has just been said, it issubmitted that it would be unnecessary, and possiblymisleading, to include in a regulation of the regime of"historic waters" a general statement regarding theburden of proof. It would seem preferable to leave thatquestion to be solved by the procedural rules whichmay be applicable in a particular case.

E. LEGAL STATUS OF THE WATERS REGARDED AS"HISTORIC WATERS"

160. The main question to be discussed in thissection is whether "historic waters" are internal watersof the coastal State or are to be considered as part ofits territorial sea. The importance of this problem liesin the fact that, according to the international law ofthe sea, the coastal State must allow the innocent pas-sage of foreign ships through its territorial sea, but hasno such obligation with respect to its internal waters.

161. As far as "historic bays" are concerned, thematter was dealt with in paragraphs 94-136 of theSecretariat memorandum on "historic bays" (A/CONF.13/1), and reference is made to the materialand discussion which may be found there.

162. In paragraph 101 of the memorandum it ispointed out that, until the International Law Commis-sion in its drafts on the law of the sea made a cleardistinction between the "territorial sea" and "internalwaters", the terminology used both in the doctrine andin State practice was ambiguous. "Territorial waters"could be used as a term comprehending both the "terri-torial sea" and "internal waters"; what is now knownas "internal waters" was therefore often referred toas "territorial waters". In attempting to ascertain theopinions of authors and Governments in this field, onehas therefore to take care not to be misled by theuncertain terminology used.

163. If allowance is made for this problem of ter-minology, the dominant opinion, as gathered from thestatements assembled in the memorandum, seems to bethat "historic bays" the coasts of which belong to asingle State are internal waters. This was to be ex-pected, for it is generally agreed that the waters insidethe closing line of a bay are internal waters and thatthe territorial sea begins outside that line.

164. On the other hand, it should be recalled thatthe right to "historic bays" is based on the effectiveexercise of sovereignty over the area claimed, togetherwith the general toleration of foreign States. The sove-reignty exercised can be either sovereignty as overinternal waters or sovereignty as over the territorialsea. In principle, the scope of the historic title emerg-ing from the continued exercise of sovereignty shouldnot be wider in scope than the scope of the sovereigntyactually exercised. If the claimant State exercisedsovereignty as over internal waters, the area claimedwould be internal waters, and if the sovereignty exer-cised was sovereignty as over the territorial sea, the

area would be territorial sea. For instance if the claim-ant State allowed the innocent passage of foreign shipsthrough the waters claimed, it could not acquire anhistoric title to these waters as internal waters, only asterritorial sea.

165. The seeming contradiction between the state-ment that "historic bays" are internal waters, and theconclusion that waters claimed on the basis of the exer-cise of sovereignty as over the territorial sea cannotbe internal waters but only part of the territorial sea,is really one of terminology. In the latter case, it wouldbe preferable not to speak of an "historic bay" but of"historic waters" of some other kind.

166. What was said above refers to "historic waters",the coasts of which belong to a single State. The prin-ciple set out in paragraph 164 would, however, applyin the case of bays bordered by two or more States aswell. Whether the waters of the bay are internal watersor territorial sea would depend on what kind of sove-reignty was exercised by the coastal States in the forma-tive period of the historic title to the bay.

167. The same principle also applies to "historicwaters" other than "historic bays". These areas wouldbe internal waters or territorial sea according to whetherthe sovereignty exercised over them in the course ofthe development of the historic title was sovereignty asover internal waters or sovereignty as over the terri-torial sea.

F. QUESTION OF A LIST OF "HISTORIC WATERS"

168. It is easy to see that claims to "historic waters"may be a source of considerable uncertainty regardingthe delimitation of the maritime domain of States. Aswas shown above, the determination of the questionwhether or not such a claim is legitimate depends to alarge extent on the evaluation of the circumstances inthe particular case. Even if general agreement wasreached on the principles involved, the application ofthese principles would not be without complications.The question how to avoid or reduce this uncertaintyhas held the attention of both authors and Governments,especially in connexion with the attempts to codify therules of international law regarding the territorial sea.111

169. In the course of the preparatory work for the1930 Hague Codification Conference, Schucking, therapporteur of the sub-committee dealing with problemsconnected with the law of the territorial sea, suggestedthe establishment of an International Waters Officewhich would register rights possessed by the riparianStates outside the proposed fixed zone of their terri-torial seas, including rights to "historic waters". Ap-plications for registration of such rights could be madewithin a time limit and application could be opposed byother States within a time limit. A procedure was alsoprovided for settling disputes arising in case of suchopposition.112 The idea of an International WatersOffice was however later dropped by the rapporteur.118

170. Bustamante in his "project of convention", pre-pared in order to help the work of the 1930 CodificationConference, suggested a similar scheme, with the Secre-tariat of the League of Nations playing a role corre-

111 See for instance references in Gidel, op. cit., pages 636-638.112 League of Nations document C.196.M.70.1927.V, pages

38-41 and 58.113 Ibid., page 72.


sponding to that of the International Waters Office inthe Schiicking proposal.114

171. In the discussions at the 1930 CodificationConference, the representative of Greece stated that itwould be useful to adopt Schiicking's proposal

"that an international organ should be established todraw up in advance a list of historic bays".115

172. The representative of Great Britain said:"May I add one other thing? It is quite clear that

neither this Conference nor any Committee nor Sub-Committee of it could possibly undertake to draw upa list of historic bays. Yet the matter is one of greatimportance, and some machinery ought to be devisedby which the various nations of the world can ex-change views on this point, with the object ultimatelyof obtaining a list of historic bays agreed interna-tionally.

"At a later stage, I shall propose that the Confer-ence should suggest, before its work is completed, thesetting up of some small body which might examinethe claims of the various nations to historic bays witha view to making a report and possibly recommenda-tions on the subject at a later date, to Geneva orelsewhere. The subject is one which has caused muchfriction and much dispute in the past and this seemsto be a golden opportunity first of all to settle theprinciples on which the classification is to be based,and then, having settled the principles, to agree uponsome list which will be binding for the future."116

173. Finally the representative of Portugal spoke inthe same sense as follows:

"In the considerations it adduced today, the Britishdelegation spoke of the establishment of an inter-national organization. I venture to remind you thatarticle 3 of Professor Schiicking's draft speaks ofthe creation of an International Waters Office. Afterdiscussion by the Committee, Professor Schiickingagreed to omit that article. I brought it forward again,but it was not taken into account either by the Com-mittee of Experts or by the Preparatory Committee.

"This idea has now been put forward once again.On behalf of the Portuguese delegation, I wish to saythat, from the general point of view, I am preparedto agree to the establishment of such an organization,provided that the character and functions with whichit is endowed are satisfactory."117

174. The Second Committee of the Codification Con-ference in its report referred to the question of "historicwaters" and, as was seen above, stated that the work ofcodification could not affect such rights. The Committeethereafter added:

"On the other hand, it must be recognized that nodefinite or concrete results can be obtained withoutdetermining and defining those rights. The Com-mittee realizes that, in this matter too, the work ofcodification will encounter certain difficulties."118

175. While it no doubt would be convenient anddesirable from the point of view of clarity and certainty

114 The relevant provisions of the Bustamantc procedure may-be found in the Secretariat memorandum on "historic waters",paragraph 209.

115 Acts of the Conference for the Codification of Inter-national Law, vol. Ill , page 105.

wibid., pages 104-105.117 Ibid., page 107.

id., page 211.

to establish an agreed list of "historic waters", it isdoubtful whether a practicable approach to the problemwould be to ask Governments to register their claimswithin a certain time and likewise request opponentsof the claims to register their objections within a cer-tain time. The advantage would, of course, be, after theexpiration of the deadlines, that the unopposed claimswould be considered as accepted, that no new claimscould be made and that only the opposed claims wouldhave to be settled. One weakness of such a scheme is,however, that it would be binding only on the Statesadhering to it, so that its effectiveness would dependupon how many and perhaps which States accepted it.Unless adherence by the totality of the States could beachieved, new claims could, in any case, not be ex-cluded. Moreover, the scheme would involve the obviousdanger that it might provoke a number of unnecessarydisputes, as States would be tempted, in order to be onthe safe side, to overstate both their claims and theirobjections. The net result might be less rather thanmore certainty.

176. It could therefore be argued that little advantagewould be achieved by undertaking the rather formidabletask of establishing a list of "historic waters". It mightalso be said that such an enterprise would be pointlessas long as the question of the breadth of the territorialsea has not been settled. Under these circumstances thequestion is, whether it would not be preferable to limitthe study to the principles of the matter and leave par-ticular cases to be settled if and when they become theobject of an actual dispute.

G. SETTLEMENT OF DISPUTES

177. Should a dispute arise, it would, however, beuseful if means for the settlement of disputes werealready agreed upon. It might therefore be desirable tosupplement any agreement on substantive rules or prin-ciples relating to "historic waters" by provisions forthe settlement of disputes regarding the interpretationor application of such rules or principles. As to theprocedure to be followed in regard to such settlement,one might use as a pattern either the machinery set upby the 1958 Geneva Convention on Fishing and Con-servation of the Living Resources of the High Seas110

or the methods outlined in the Optional Protocolsconcerning the Compulsory Settlement of Disputesadopted at the 1958 Geneva Conference on the Law ofthe Sea120 and at the 1961 Vienna Conference onDiplomatic Intercourse and Immunities.121

178. In the former case, disputes would be referredto a special commission, unless the parties agreed to seeka solution by another method of peaceful settlement, asprovided for in Article 33 of the Charter of the UnitedNations. The members of the commission would benamed by agreement between the States in dispute or,failing agreement, by the Secretary-General of theUnited Nations.

179. If on the other hand the pattern of the optionalprotocols is followed, disputes would be brought beforethe International Court of Justice by the application ofone of the parties. The parties could agree to resort to

119 United Nations Conference on tfie Law of the Sea,Official Records, United Nations publication, Sales No.: 58.V.4,vol. II, page 140.

wibid., page 145.121 Document A/CONF.20/12, in United Nations Conference

on Diplomatic Intercourse and Immunities, Official Records,United Nations publication, Sales No.: 62.X.1, vol. II, page 89.


an arbitral tribunal instead of the Court, and they couldalso agree to adopt a conciliation procedure before goingto the Court.

180. The settlement of disputes regarding rights to"historic waters" is complicated by a peculiar difficulty.If the final decision in a dispute goes against the Stateclaiming the area, it might be expected that the Statewould give up its claim and the matter would be settledonce and for all. On the other hand, should the decisionbe in favour of the State claiming the area, this decisionwould bind only the other party to the dispute, and otherStates might later return to the charge and open upnew disputes regarding the claim. The same could ofcourse happen when the claiming State loses, if thatState, while respecting the decision in its relations withthe other party to the dispute continued to exercisesovereignty over the area in relation to other States ortheir citizens. In other words, although a dispute regard-ing an area of "historic waters" was finally settledbetween the State claiming the area and an opposingState, the matter whether this area is "historic waters"could be reopened by other States, which would not bebound by the first settlement. Even if the dispute wasdecided by the highest international court in existence,the International Court of Justice, its decision wouldbe binding only on the parties to the dispute, as stipu-lated in Article 59 of its Statute. A third State wouldstill be legally free to dispute the claim, and a finaldecision of the question whether an area is or is not"historic waters" would therefore be hard to obtain.Naturally, if in one dispute it decided that the area was"historic waters" of a certain State, the InternationalCourt of Justice in all probability would come to thesame conclusion in another dispute; similarly, a deci-sion by a special commission or an arbitral decision onthe matter in one case would probably carry consider-able weight in another case. Still, the question wouldnot be legally settled once and for all, and the possibilityof new disputes would remain.

181. The experience of the two above-mentionedconferences indicates that it would probably be practicalto embody the provisions for the settlement of disputesin a separate optional protocol. Some States might bewilling to accept certain substantive rules or principleson "historic waters", but not to submit themselves toa compulsory procedure for the settlement of disputes.By including the substantive and the procedural rulesin separate instruments, these States would be able toadhere to the former although they could not subscribeto the latter.

III. Conclusions

182. The above discussion of the principles andrules of international law relating to "historic waters,including historic bays" would seem to justify a numberof conclusions, provided that it is understood that someof these must necessarily be highly tentative and morein the nature of bases of discussion than results of anexhaustive investigation of the matter.

183. In the first place, while "historic bays" presentthe classic example of historic title to maritime areas,there seems to be no doubt that, in principle, a historictitle may exist also to other waters than bays, such asstraits or archipelagos, or in general to all those waterswhich can form part of the maritime domain of a State.

184. On the other hand, the widely held opinion thatthe regime of "historic waters" constitutes an exception

to the general rules of international law regarding thedelimitation of the maritime domain of the State isdebatable. The realistic view would seem to be not torelate "historic waters" to such rules as an exception ornot an exception, but to consider the title to "historicwaters" independently, on its own merits. As a conse-quence one should avoid, in discussing the theory of"historic waters", to base any proposed principles orrules on the alleged exceptional character of such waters.

185. In determining whether or not a title to "his-toric waters" exists, there are three factors which haveto be taken into consideration, namely,

(i) The authority exercised over the area by theState claiming it as "historic waters";

(ii) The continuity of such exercise of authority;(iii) The attitude of foreign States.186. First, effective exercise of sovereignty over the

area by the claiming State is a necessary requirementfor title to the area as "historic waters" of that State.Secondly, such exercise of sovereignty must have con-tinued during a considerable time so as to have devel-oped into a usage. Thirdly, the attitude of foreignStates to the activities of the claiming State in the areamust have been such that it can be characterized as anattitude of general toleration. In this respect the sameweight need not be given to the attitude of all States.Particularly, it would seem reasonable, in the case ofa State (or States) claiming historic title to watersbordered by two or more States, to accord specialimportance to the attitude of the other riparian State(or States).

187. It is apparent from this description of the re-quirements which must be fulfilled for a title to "historicwaters" to emerge, that the existence of such a titleis to a large extent a matter of judgement. A largeelement of appreciation seems unavoidable in this mat-ter, but it is possible that Government comments onthe three factors listed above could yield a number ofconcrete examples which might serve as illustrationand guidance.

188. The burden of proof of title to "historic waters"is on the State claiming such title, in the sense that,if the State is unable to prove to the satisfaction ofwhoever has to decide the matter that the requirementsnecessary for the title have been fulfilled, its claim tothe title will be disallowed. In a dispute both partieswill most probably allege facts in support of their re-spective contentions, and in accordance with generalprocedural rules each party has the burden of proofwith respect to the facts on which he relies. It is there-fore doubtful whether the general statement that theburden of proof is on the State claiming title to "historicwaters", although widely accepted, is really useful as adefinite criterion.

189. The legal status of "historic waters", i.e., thequestion whether they are to be considered as internalwaters or as part of the territorial sea, would in prin-ciple depend on whether the sovereignty exercised inthe particular case over the area by the claiming Stateand forming a basis for the claim, was sovereignty asover internal waters or sovereignty as over the terri-torial sea. It seems logical that the sovereignty to beacquired should be commensurate with the sovereigntyactually exercised.

190. The idea of establishing a definitive list of"historic waters" in order to diminish the uncertaintywhich claims to such waters might cause has serious


drawbacks. An attempt to establish such a list mightinduce States to overstate both their claims and theiropposition to the claims of other States, and so giverise to unnecessary disputes. Moreover, it would in anycase be extremely difficult, not to say impossible, toarrive at a list which would be really final.

191. On the other hand, it would be desirable toestablish a procedure for the obligatory settlement ofdisputes regarding claims to "historic waters". As apattern for such a procedure one might use the rele-vant provisions of the 1958 Geneva Convention onFishing and Conservation of the Living Resources ofthe High Seas; in that case disputes would be referredto a special commission, unless the parties agreed onanother method of peaceful settlement. Or one could

follow the optional protocols adopted at the 1958 GenevaConference on the Law of the Sea and the 1961 ViennaConference on Diplomatic Intercourse and Immunities;disputes would then lie within the compulsory jurisdic-tion of the International Court of Justice, subject tothe possibility of having recourse also to a conciliationprocedure or to arbitration.

192. For practical reasons, an agreement on thesettlement of disputes might preferably be included ina protocol separate from any instrument containingsubstantive rules on "historic waters". In that way,States which would be unwilling to subscribe to a pro-cedure for the compulsory settlement of disputes couldadhere to the substantive rules agreed upon.

LAW OF TREATIES[Agenda item 1]

DOCUMENT A/CN.4/144

FirBt report on the law of treaties, by Sir Humphrey Waldock, Special Rapporteur

[Original text: English][26 March 1962]

CONTENTS

Page

INTRODUCTION

A. Summary of the Commission's proceedings . . . . . . . . . 28

B. Scope of the present draft articles 30

T H E CONCLUSION, ENTRY INTO FORCE AND REGISTRATION OF TREATIES

Chapter I. General provisions 31

Article 1. Definitions 31Commentary 32

Article 2. Scope of the present articles 35Commentary 35

Article 3. Capacity to become a party to treaties 35Commentary 36

Chapter II. The rules governing the conclusion of treaties by States 38

Article 4. Authority to negotiate, sign, ratify, accede to or accept a treaty . 38Commentary 38

Article 5. Adoption of the text of a treaty 39Commentary 40

Article 6. Authentication of the text as definitive 41Commentary . . 41

Article 7. The States entitled to sign the treaty . . . . 42Commentary . . . 43

Article 8. The signature or initialling of the treaty 44Commentary 45

Article 9. Legal effects of a full signature 46Commentary 46

Article 10. Treaties subject to ratification 48Commentary . . . 48

Article 11. The procedure of ratification 52Commentary 52

Article 12. Legal effects of ratification 53Commentary 53

Article 13. Participation in a treaty by accession 53Commentary . . 54

Article 14. The instrument of accession 58Commentary 58

Article 15. Legal effects of accession 59Commentary 59

Article 16. Participation in a treaty by acceptance 59Commentary 59

Article 17. Power to formulate and withdraw reservations 60

27


CONTENTS (continued)Page

Chapter II. The rules governing the conclusion of treaties by States (continued)Article 18. Consent to reservations and its effects 61

Article 19. Objection to reservations and its effects 62Commentary on articles 17, 18 and 19 62Commentary on article 17 65Commentary on article 18 66Commentary on article 19 68

Chapter III. The entry into force and registration of treaties 68Article 20. Mode and date of entry into force 68

Commentary 69

Article 21. Legal effects of entry into force 71Commentary 71

Article 22. The registration and publication of treaties 71Commentary 72

Article 23. Procedure of registration and publication 73Commentary 73

Appendix. Historical summary of the question of reservations to multilateralconventions 73

Introduction

A. SUMMARY OF THE COMMISSION'S PROCEEDINGS1

(1) At its first session in 1949 the International LawCommission placed the "Law of Treaties" amongst thetopics listed in paragraphs 15 and 16 of its report forthat year as being suitable for codification and ap-pointed Mr. J. L. Brierly as Special Rapporteur for thesubject. It also decided to give this subject priority.However, owing to the various special tasks assigned tothe Commission by the General Assembly and to thenecessity for completing for the Assembly subjects likethe law of the sea and diplomatic—and consular—intercourse and immunities, the Commission found itnecessary again and again to postpone its considerationof the law of treaties. A number of important reportswere produced by its successive Special Rapporteurs;but—with the exception of a special report on thesubject of reservations to multilateral conventions in1951, and work in 1959 on a substantial part of Sir G.Fitzmaurice's report on the framing, conclusion andentry into force of treaties—the Commission was notable to do much more than give occasional glances atthese reports.

(2) At its second session in 1950 the Commissiondevoted its 49th to 53rd meetings to a preliminarydiscussion of Mr. J. L. Brierly's first report (A/CN.4/23) and also had available to it replies of Governments(A/CN.4/19) to a questionnaire addressed to themunder article 19, paragraph 2, of its Statute. TheCommission's report for this session contained the fol-lowing observations (A/1316, paragraphs 161 and162):

"The Commission devoted some time to a con-sideration of the scope of the subject to be coveredin its study. Though it took a provisional decisionthat exchanges of notes should be covered, it did notundertake to say what position should be given to

1 This summary is based upon paragraphs 8-11 in chapter IIof the Commission's report to the General Assembly in 1959(document A/4169); Yearbook of the International Law Com-mission, 1959 (United Nations publication, Sales No.: 59.V.1,vol. II), pp. 88-9.

them by the Special Rapporteur. A majority of theCommission favoured the explanation of the term'treaty' as a 'formal instrument' rather than as an'agreement recorded in writing'. Mention was fre-quently made by members of the Commission of thedesirability of emphasizing the binding character ofthe obligations under international law established bya treaty.

"A majority of the Commission were also in favourof including in its study agreements to which inter-national organizations are parties. There was generalagreement that, while the treaty-making power ofcertain organizations is clear, the determination ofthe other organizations which possess capacity formaking treaties would need further consideration."(3) At its third session in 1951, the Commission had

before it two reports from Mr. Brierly, one (A/CN.4/43) a continuation of the Commission's general workon the law of treaties and the other (A/CN.4/41) aspecial report on "reservations to multilateral conven-tions" called for by the General Assembly at the sametime as it had requested an advisory opinion from theInternational Court of Justice on the particular problemof reservations to the Convention on the Preventionand Punishment of the Crime of Genocide. As to theCommission's opinions and recommendations on thespecial subject of reservations to multilateral conven-tions, there is no need to summarize them here, sincethis is done with some fullness in an appendix to thepresent report. Its general work on the law of treatiesat its third session was summarized by the Commissionin its report for 1951 as follows (A/1858, paragraphs74 and 75):

"At the third session of the Commission, Mr.Brierly presented a second report on the law oftreaties. In this report, the special rapporteur sub-mitted a number of draft articles which he had pro-posed in the draft convention contained in his reportto the previous session.

"In the course of eight meetings (namely the 84thto 88th, and 98th to 100th meetings), the Commis-sion considered these draft articles as well as someothers contained in the first report of the special

Law of treaties 29

rapporteur. Various amendments were adopted andtentative texts were provisionally agreed upon. Thesetexts were referred to the special rapporteur, whowas requested to present to the Commission, at itsfourth session, a final draft, together with a com-mentary thereon. The special rapporteur was alsorequested to do further work on the topic of the lawof treaties as a whole and to submit a report thereonto the Commission."

But the Commission also took a further decision at thatsession concerning the question of international organi-zations already mentioned in its report for 1950. At its98th meeting, it adopted "the suggestion put forwardthe previous year by Mr. Hudson, and supported byother members of the Commission, that it should leaveaside, for the moment, the question of the capacity ofinternational organizations to make treaties, that itshould draft the articles with reference to States onlyand that it should examine later whether they couldbe applied to international organizations as they stoodor whether they required modifications".

(4) At its fourth session in 1952 the Commissionhad before it a "Third Report on the Law of Treaties"(A/CN.4/54) prepared by Mr. Brierly, who, however,had meanwhile resigned his membership of the Com-mission. In the absence of its author the Commissiondid not think it expedient to discuss that report, and itconfined itself to electing Mr. H. Lauterpacht to succeedMr. Brierly as Special Rapporteur.

(5) At its fifth session in 1953 the Commission re-ceived a report from Mr. Lauterpacht (A/CN.4/63)containing draft articles and commentaries on a numberof topics in the law of treaties but, owing to its othercommitments, was unable to take up the report at thatsession. It therefore instructed Mr. Lauterpacht to con-tinue his work and present a further report. At its sixthsession in 1954 the Commission duly received Mr. H.Lauterpacht's second report (A/CN.4/87) but wasagain unable to take up the subject. Meanwhile Mr.(by then Sir H.) Lauterpacht had resigned from theCommission on his election as judge of the InternationalCourt of Justice, and at its seventh session in 1955 theCommission elected Sir G. Fitzmaurice as SpecialRapporteur in his place.

(6) At the next five sessions of the Commission,from 1956 to 1960, Sir G. Fitzmaurice presented fiveseparate and comprehensive reports on the law oftreaties, covering respectively (a) the framing, con-clusion and entry into force of treaties (A/CN.4/101),(b) the termination of treaties (A/CN.4/107), (c)essential and substantial validity of treaties (A/CN.4/115), (d) effects of treaties as between the parties(operation, execution and enforcement) (A/CN.4/120)and (e) treaties and third States ( A/CN.4/130).During these years the Commission's time was largelytaken up with its work on the law of the sea and ondiplomatic and consular intercourse and immunities, sothat, apart from a brief discussion of certain generalquestions of treaty law at the 368th to 370th meetingsof its 1956 session, it was only able to concentrate uponthe law of treaties at its eleventh session in 1959. Atthat session it devoted some twenty-six meetings2 to adiscussion of Sir G. Fitzmaurice's first report on theframing, conclusion and entry into force of treaties, andprovisionally adopted the texts of fourteen articles,together with their commentaries (A/4169, chapter II).

2 480th to 496th, 500th to 504th and 519th to 522nd meetings.

However, the time available was not sufficient to enablethe Commission to complete its series of draft articleson this part of the law of treaties.3 In its report, for 1959the Commission drew particular attention (ibid., para-graph 18) to the fact that it did not envisage its workon the law of treaties as taking the form of one ormore international conventions but had favoured theidea of "a code of a general character". The reasons forpreferring a "code" were stated to be twofold (ibid.,citation from Sir G. Fitzmaurice's first report) :

"First, it seems inappropriate that a code on the lawof treaties should itself take the form of a treaty; orrather, it seems more appropriate that it should havean independent basis. In the second place, much ofthe law relating to treaties is not especially suitablefor framing in conventional form. It consists ofenunciations of principles and abstract rules, mosteasily stated in the form of a code; and this also hasthe advantage of rendering permissible the inclusionof a certain amount of declaratory and explanatorymaterial in the body of the code, in a way that wouldnot be possible if this had to be confined to a strictstatement of obligation. Such material has consider-able utility in making clear, on the face of the codeitself, the legal concepts or reasoning on which thevarious provisions are based."

Mention was also made of possible difficulties that mightarise if the law of treaties were to be embodied in amultilateral convention and then some States did notbecome parties to it or, having become parties to it,subsequently denounced it. On the other hand, it recog-nized that these difficulties arise whenever a conventionis drawn up embodying rules of customary law. Finally,it underlined that, if it were decided to cast the codein the form of a multilateral convention, considerabledrafting changes, and possibly the omission of somematerial, would almost certainly be required.

(7) The twelfth session, in 1960, was almost entirelytaken up with consular intercourse and immunities andad hoc diplomacy, so that no further progress was madewith the law of treaties during that session. Then Sir G.Fitzmaurice had himself to retire from the Commissionon his election as judge of the International Court ofJustice, and at the thirteenth session, in 1961, theCommission elected Sir H. Waldock to succeed him asSpecial Rapporteur for the law of treaties. At the sametime the Commission took the following general deci-sions as to its work on the law of treaties (A/4843,paragraph 39) :

"( i ) That its aim would be to prepare draftarticles on the law of treaties intended to serve asthe basis for a convention;

"(ii) That the Special Rapporteur should be re-quested to re-examine the work previously done inthis field by the Commission and its Special Rap-porteurs ;

"(iii) That the Special Rapporteur should beginwith the question of the conclusion of treaties andthen proceed with the remainder of the subject, ifpossible covering the whole subject in two years."

The first of these decisions, as will be appreciated fromthe observation in the report for 1959, marked a radicalchange in the Commission's approach to its work on thelaw of treaties. Instead of a mere expository statement

3 Chapter II of the Commission's report for 1959 containsarticle 1-10, and 14-17 of a proposed chapter of a comprehensivecode on the law of treaties.


of the law, it now envisaged the preparation of draftarticles capable of serving as the basis for a multilateralconvention. Only in this way, it felt, were really con-crete results likely to be obtained from its work onthis subject.

B. SCOPE OF THE PRESENT DRAFT ARTICLES

(8) The Special Rapporteur, in accordance with theCommission's decision, has aimed at preparing a groupof draft articles which might provide the basis for aconvention on the "conclusion" of treaties. "Entry intoforce" has been regarded as naturally associated with,if not actually part of, "conclusion", while the subjectof "registration of treaties" has been added as belongingessentially to the procedure of treaty-making and asbeing closely linked in point of time to entry into force.4

It is believed that, if the Commission finds it possibleto reach a wide measure of agreement upon draft articlescovering these three topics, they will furnish the basiseither for a self-contained convention on the "conclu-sion, entry into force and registration of treaties" orfor a separate chapter in a larger convention coveringthe whole or a large part of the law of treaties. Havingregard to the success achieved in the law of the sea bydealing successively in a series of separate conventionswith more or less self-contained sections of the subject,and bearing in mind the almost unmanageable size ofthe total corpus of the law of treaties, it is believed thata somewhat similar procedure could usefully be adoptedalso for this subject. Accordingly, the Special Rappor-teur has thought it right to try and prepare for theCommission's consideration as closely integrated andself-contained a group of articles on the conclusion,entry into force and registration of treaties as possible.

(9) The present articles differ considerably fromthose adopted by the Commission in 1959, in more thanone respect. First, in draft articles on the conclusionof treaties it has not seemed appropriate to includearticles 3 and 4 of the 1959 draft, which dealt with the"concept of validity" and "general conditions of obliga-tory force". These two articles found a place at thebeginning of the 1959 draft because in that draft the"conclusion" of treaties was envisaged as part of ageneral chapter on the "validity" of treaties, belongingmore particularly to the subject of "formal validity".This method of arrangement may have been appro-priate enough for an expository code, but it seems tobe somewhat too jurisprudential for a convention.As Sir G. Fitzmaurice pointed out in his first report(A/CN.4/101), the "conclusion" of treaties can beregarded either as a process or as a substantive matterrelating to the validity of treaties. Clearly, the topicof "conclusion" of treaties has both aspects; but in thedraft articles of a convention on the "conclusion, entryinto force and registration of treaties" it would appearunnecessary — and perhaps rather artificial — to beginwith solemn pronouncements about the concept of thevalidity of treaties and the general conditions of obliga-tory force. Secondly, and also for the reason that theCommission has changed from an expository code to thedraft articles of a convention, the purely explanatorymaterial in article 5 and paragraph 1 of article 6 of the1959 draft has been omitted. Thirdly, the present draft

4 Article 102 of the Charter requires treaties to be registered"as soon as possible", while the (\c-';r:i-H'oiu- adopted hy theGeneral Assembly on 14 December 1916 p;\>vLle that they shallnot be registered until they have entered into force; see furtherthe Commentary to art'ele 22.

aims at a more complete statement of the proceduralaspects of treaty-making by adding such matters as thecorrection of errors in the text and the functions of adepositary and, as already mentioned, registration oftreaties, which were not included in Sir G. Fitzmaurice'sdraft of this topic. This seems to be not only justifiablebut even necessary, if the emphasis is shifted, as theSpecial Rapporteur thinks that it must be in a con-vention, from the "validity" to the "process" aspect ofconclusion of treaties.

(10) The present draft naturally owes much to thevaluable studies of Mr. Brierly and Sir H. Lauterpachtand especially to the detailed scientific exposition of thevarious topics by Sir G. Fitzmaurice. It also takesaccount of the provisional conclusions reached by theCommission itself at previous sessions, and has drawninspiration from the debates at those sessions. But,although much of the ground covered by the presentarticles has been covered in previous reports, the con-version of the previous draft into the basis for a con-vention has necessitated a complete re-examination of it.Moreover, the previous work of the Commission hadleft unresolved a number of important and controversialmatters, such as capacity to enter into treaties, ratifica-tion, reservations to multilateral conventions and thequestion of a "right" to participate in multilateral con-ventions, which provided difficult problems for theSpecial Rapporteur and must now engage the attentionof the Commission. The draft articles have been ar-ranged provisionally in five chapters, (a) "generalprovisions", (&) "the rules governing the conclusionof treaties by States", (c) "the entry into force andregistration of treaties", (d) "corrections of errorsand the functions of depositaries", and (e) "the treatiesof international organizations".

(11) The last chapter is purely tentative and theCommission may not wish to carry its examination oftreaty-making by international organizations very faruntil it has had the comments at any rate of the UnitedNations and the specialized agencies. In 1959 (A/4169,chapter II, para. 6 of commentary to article 2), as pre-viously in 1951 (98th meeting), the Commission de-cided to leave aside for the moment the question of thecapacity of international organizations to make treaties;it decided to draft the articles with reference to Statesonly and to examine later whether they could be ap-plied to international organizations as they stood, orwhether they required modifications. On the otherhand, the Commission fully accepted that internationalorganizations may possess treaty-making capacity andthat international agreements concluded by internationalorganizations possessing such capacity fall within thescope of the law of treaties. For in explaining what itmeant by the phrase "other subjects of internationallaw possessed of treaty-making capacity" the Commis-sion said that the "obvious case" is that of internationalorganizations.5 One course, no doubt, might be to leaveaside altogether the question of the treaties of inter-national organizations until the whole of the Commis-sion's work on the law of treaties, as it affects States,is complete and then to consider just how much of itis applicable to organizations. But, as already pointedout, the conclusion, entry into force and registration oftreaties, with which the present articles are concerned,is to a large extent a self-contained branch of the law

5 A/-rl'9, he. cit. In truth, international organizaiions nowfipure almost as prominently as States in the United NationsTreaty Series.

Law of treaties

of treaties and, unless it is unavoidable, it seems betternot to postpone all consideration of treaty-making byinternational organizations until some comparativelydistant date, by which time the Commission will havedealt with many other matters not very closely relatedto this part of the law of treaties. The solution suggestedis similar to that adopted by the Commission for thecase of honorary consuls in its draft articles on consularintercourse and immunities (A/4843, chapter I I ) ,namely, a separate chapter specifying the extent towhich the provisions of the draft articles apply to thetreaties of organizations and formulating any particularrules peculiar to these treaties.

(12) There is one topic in the present articles whichis of special complexity and difficulty, namely, "reserva-tions to multilateral treaties". It is, moreover, a topicwhich during the past eleven years has occupied theattention of the International Court of Justice, the Com-mission itself, the General Assembly and the Organiza-tion of American States, as well as of the Commission'sSpecial Rapporteurs. It may, it is believed, be convenientto members of the Commission to have before them asummary of the discussion of this question in recentyears, and such a summary has therefore been providedin the form of an appendix to the present report.

(13) Finally, the Special Rapporteur has begun workon a further section of the law of treaties with the ideaof including in a second series of articles all the mattersdealt with in Sir G. Fitzmaurice's second and thirdreports. These matters, it is thought, can suitably begrouped together so as to form the subject of a secondpossible convention covering the various aspects of thevalidity, that is, substantive validity, and duration oftreaties. It should then be possible to dispose of thematters comprised in Sir G. Fitzmaurice's fourth andfifth reports in a third series of draft articles. The pro-gramme is, therefore, likely to occupy three years ratherthan the two years contemplated in the above-mentioneddecision of the Commission.

The conclusion, entry into force and registrationof treaties

Text of draft articles -with commentary

Chapter / . General provisions

ARTICLE 1. DEFINITIONS

For the purposes of the present articles, the followingexpressions shall have the meanings hereunder assignedto them:

(a) "International agreement" means an agreementintended to be governed by international law and con-cluded between two or more States or other subjectsof international law possessing international personalityand having capacity to enter into treaties under therules set out in article 3 below.

(b) "Treaty" means any international agreement inany written form, whether embodied in a single instru-ment or in two or more related instruments and what-ever its particular designation (treaty, convention,protocol, covenant, charter, statute, act, declaration,concordat, exchange of notes, agreed minute, memo-randum of agreement, modus vivendi or any otherappellation).

(c) "Party" means a State or other subject of inter-national law, possessing international personality and

having capacity to enter into treaties under the rulesset out in article 3 below, which has executed acts bywhich it has definitively given its consent to be boundby a treaty in force; "Presumptive party" means aState or other subject of international law which hasqualified itself to be a "party" to a treaty which has notyet entered into force.

(d) "Bilateral treaty" means a treaty participationin which is limited to two parties and no more. "Pluri-lateral treaty" means a treaty participation in which isopen to a restricted number of parties and the provisionsof which purport to deal with matters of concern onlyto such parties. "Multilateral treaty" means a treatywhich, by its terms or by the terms of a related instru-ment, has either been made open to participation by anyState without restriction, or has been made open toparticipation by a considerable number of parties andeither purports to lay down general norms of inter-national law or to deal in a general manner with mattersof general concern to other States as well as to theparties to the treaty.

(e) "Full powers" means a formal instrument issuedby the competent authority of a State authorizing agiven person to represent the State either for the pur-pose of negotiating or signing a treaty or of executingan instrument relating to a treaty.

(f) "Adoption" means the act whereby the negotiat-ing States express their final concurrence in theformulation of the text of a proposed treaty.

(g) "Authentication" means the act whereby thetext of a treaty is rendered definitive and final nevarietur.

(h) "Signature" means the acts whereby a dulyauthorized representative of a State or other Subjectof international law signs the treaty on behalf of suchState or other Subject of international law, and includesinitialling where, under the provisions of article 8 be-low, initialling is equivalent to a full signature. "Signa-ture ad referendum" means a signature expressly madeconditional upon reference to and confirmation by theState or other subject of international law whose repre-sentative has so worded his signature.

(i) "Ratification" means the international actwhereby a State, which has affixed its signature to atreaty upon condition of subsequent ratification orapproval, confirms and renders definitive its consent tobe bound by the treaty.

(j) "Accession" means the international act wherebya State which is not a signatory to a treaty, under apower conferred upon it by the terms of the treaty orof another instrument, expresses its will to "accede"or "adhere" to the treaty and thereby definitively givesits consent to be bound by the treaty.

(k) "Acceptance" means the international actwhereby a State gives its consent to be bound by atreaty, either as a definitive confirmation of a signaturepreviously affixed to the treaty or as an original anddefinitive expression of its consent to be bound.

(1) "Reservation" means a unilateral statementwhereby a State, when signing, ratifying, acceding to oraccepting a treaty, specifies as a condition of its consentto be bound by the treaty a certain term which willvary the legal effect of the treaty in its application be-tween that State and the other party or parties to thetreaty. An explanatory statement or statement of in-tention or of understanding as to the meaning ofthe treaty, which does not amount to a variation in


the legal effect of the treaty, does not constitute areservation.

(m) "Depositary" means the State or internationalorganization designated in a treaty to be the custodianof the authentic text and of all instruments relating tothe treaty and to perform with reference to such treatyand instruments the functions set out in article 25 below.

Commentary

(1) Paragraphs (a) and (b) of article 1 give effectto decisions previously reached by the Commission.After some initial hesitation in 1950 (50th, 51st and52nd meetings) the Commission decided in 1951 andagain in 1959 (A/4169, chapter II, articles 1 and 2)that its codification of the law of treaties should coverall international agreements in writing, whatever theirform or appellation, and that it should deal with treatiesconcluded by international organizations as well as byStates.

(2) Paragraph (a) defines an "international agree-ment" which is, of course, the essential basis for theexistence of a "treaty". The definition is in somewhatbroader terms than that found in article 2 of the 1959draft;6 some of the elements in the 1959 draft—written form and expression in a single instrument orin related instruments — appear to belong rather tothe definition of "treaty" and will be found in para-graph (b). The two main elements in the presentdefinition are (i) "intended to be governed by inter-national law" and (ii) "between two States or othersubjects of international law possessing internationalpersonality and having capacity to enter into treaties".As to the first element, the Commission felt in 1959 thatthe element of subjection to international law is soessential a part of an international agreement that itshould be expressly mentioned in the definition. Theremay be agreements between States, such as agreementsfor the acquisition of premises for a diplomatic missionor for some purely commercial transaction, the inci-dents of which are regulated by the local law of oneof the parties or by a private law system determined byreference to conflict of laws principles. Whether in suchcases the two States are internationally accountable toeach other at all may be a nice question; but even ifthat were held to be so, it would not follow that thebasis of their international accountability was a treatyobligation. At any rate, the Commission was clear thatit ought to confine the notion of an "international agree-ment" for the purposes of the law of treaties to one thewhole formation and execution of which (as well as theobligation to execute) is governed by international law.

(3) The second element in the definition concernsthe character and capacity that the parties to an agree-ment must possess, if it is to be considered an inter-national agreement. Capacity to enter into treaties isdealt with in article 3, and on this point, therefore,reference should be made to the commentary attachedto that article, where the question of statehood andpersonality as an element in treaty-making capacityis also discussed. Here it is enough to indicate whatthe words "two or more States or other subjects ofinternational law possessing international personalityand having capacity to enter into treaties" are intended,on the one hand, to include and, on the other, toexclude. The phrase "other subjects of international

6 The expression "1959 draft" means, in the context of thisreport, the draft articles 1-10 and 14-17 adopted by the Com-mission at its eleventh session (A/4169, chapter II).

law" is designed (a) to leave no doubt as to the rightof entities such as the Holy See to be consideredparties to international agreements and (fr) to admitthe possibility of international organizations beingparties to international agreements. The obviouscase is the United Nations, whose capacity to be aparty to treaties was expressly recognized in the Regu-lations adopted on 14 December 1946 by the GeneralAssembly, concerning the Registration and Publica-tion of Treaties and International Agreements,7 andwhose international personality and treaty-making ca-pacity was affirmed by the International Court ofJustice in the case of Reparations jor Injuries Suf-fered in the Service of the United Nations.8 In fact,the number of international agreements concluded byinternational organizations in their own names, bothwith States and with each other, and registered assuch with the Secretariat of the United Nations, isnow very large, so that inclusion in the general defini-tion of "international agreements" for the purposesof the present articles seems really to be essential.

(4) But it is not enough that the party to theagreement should be a "State" or that it should bea "subject of international law"; it must also possess"international personality" and have "capacity to enterinto treaties". This requirement is designed to ex-clude a State which is subordinated to another State,-whether under a federal constitution or otherwise,and which under the applicable constitutional agree-ments or arrangement does not possess any distinctinternational personality and treaty-making capacity(see paragraphs 2-5 of the commentary to article 3) .It is also designed to exclude any question of agree-ments made by States or organizations with privateindividuals or with corporate legal persons from thecategory of international agreements. While opinionsmay differ—and the Commission itself was dividedin 1959—on the question whether individuals andcorporations can be regarded as subjects of interna-tional law, there seems to be no disposition to dissentfrom the view that agreements made by them cannotfall within the concept of an "international agreement"or a "treaty" for the purposes of the present articles.It is true that the question has been raised by someauthorities as to whether a concession or contractbetween a State and a foreign corporation may not incertain circumstances be governed by the "generalprinciples of law", as a system of what has beenreferred to as "trans-national law"—a system moreor less intermediate between municipal and interna-tional law.9 Whether or not that view is accepted, theredoes not appear to be any question of foreign concessionsor contracts being considered to be governed by the lawof "treaties" or of "international agreements" as this lawhas hitherto been understood and applied. Certainly,the International Court of Justice in the Anglo-IranianOil Company Case10 appears to have regarded the con-cessionary "convention" between Iran and the foreigncompany as something fundamentally different froma treaty or international agreement.

(5) Paragraph (d) embraces within the term"treaty" every international agreement in writing,whether formal or informal, whether embodied in a

7 See article 4. paragraph 1 (a).HI.CJ. Reports, 79-/9, at page 179.9Cf. Jessup, Transnational Law: Lord McXair, "The

Genrral Principles of Law recognized by Civilized Nations",British Year Book of International Lazv, vol. 33, p. 1.

iO/.C./. Reports, 1952, p. 112.

Law of treaties 33

single instrument or in two or more related instrumentsand whatever title or name is given to it. The wordingof the definition of "treaty" in paragraph (b) differsto some extent from that in article 1, paragraph 1,of the Commission's 1959 draft, primarily because,as already indicated above, some elements of thepresent definition of "treaty" were attached in 1959to the definition of "international agreement". Butthe substance of the present definition and of thatin the 1959 draft is believed to be the same. Theadoption of this broad definition, which sweeps intothe law of treaties every form of international agree-ment in writing, is held by the Commission to becalled for by reason of the following considerations.11

(6) Although the term "treaty" in one sense con-notes a particular type of international agreement, thesingle formal instrument which is commonly subject toratification, there also exist international agreements,such as exchanges of notes, which are not a singleformal instrument nor usually subject to ratification, andyet are certainly agreements to which the law of treatiesapplies. Similarly, very many single instruments indaily use, such as an "agreed minute" or a "memoran-dum of understanding", could not appropriately becalled formal instruments, and yet they are undoubtedlyinternational agreements subject to the law of treaties.A general code on the law of treaties must coverall such agreements, whether embodied in one instru-ment or in two or more related instruments, andwhether the instrument is "formal" or "informal".The question whether, for the purpose of describingall such instruments and the law relating to them,the expressions "treaties" and "law of treaties" shouldbe employed, rather than "international agreements"and "law of international agreements", is a questionof terminology rather than of substance.

(7) This view is in conformity with the pronounce-ment of the Permanent Court of International Justicein the Austro-G erman Customs Regime Case,12 wherethe Court said:

"From the standpoint of the obligatory characterof international engagements, it is well known thatsuch engagements may be taken13 in the form o£treaties, conventions, declarations, agreements, proto-cols or exchanges of notes."

Much the same view is generally to be found amongstwriters and was expressed as long ago as 1869 bythe eminent jurist Louis Renault,14 when he spokeof a treaty as being:

". . . every agreement arrived at between . . . States,in whatever way it is recorded (treaty, convention,protocol, mutual declaration, exchange of unilateraldeclaration)" [translation].

(8) Two further factors militate strongly in favourof this view:

(a) In the first place, the "accord en forme simpli-fiee"—to use the apt French term—so far from being

11 The ensuing four paragraphs reproduce, with some modifi-cations, paragraphs 2-4 of the commentary upon article 1 ofthe 1959 draft.

12 Series A/B, No. 41, p. 47.13 The English text of the judgement is probably a transla-

tion from an original French text. A better English renderingwould be "such engagements may be assumed in the form of",or better still, simply "may take the form of treaties, etc.".

14 Introduction a I'etude dw droit international', pp. 33-34.

at all exceptional, is very common. The number of suchagreements, whether embodied in a single instrumentor in two or more related instruments, is now verylarge—much larger than that of the treaty or conven-tion stricto sensu, i.e., the single formal instrument.Their use is moreover steadily increasing, as wasconvincingly shown by Sir H. Lauterpacht in his firstreport (A/CN.4/63, commentary to article 2).

(b) The juridical differences, in so far as they reallyexist at all, between treaties stricto sensu and "accordsen forme simplified' lie almost exclusively in the fieldof form, and of the method of conclusion and entryinto force. The law relating to such matters as validity,operation and effect, execution and enforcement, inter-pretation, and termination, applies to all classes ofinternational agreements. In relation to these matters,there are admittedly some important differences ofa juridical character between certain classes or cate-gories of international agreements.15 But these differ-ences spring neither from the form, the appellation,nor any other outward characteristic of the instrumentin which they are embodied: they spring exclusivelyfrom the content of the agreement, whatever its form,and from the particular character, not of that form,but of that content. It would therefore be inadmissibleto exclude certain forms of international agreementsfrom the general scope of a code on the law of treatiesmerely because, in the field of form pure and simple,and of the method of conclusion and entry into force,there may be certain differences between such agree-ments and treaties stricto sensu. At the most, sucha situation might make it desirable, in that particularfield and in the section of the code dealing with it,to institute certain differences of treatment betweendifferent forms of international agreements. But thequestion arises whether it is necessary to do eventhat.

(9) None of the Special Rapporteurs has in factfound it necessary to distinguish between the differentkinds of treaty in that way. Distinctions, where theyexist, normally reveal themselves unaided owing tothe nature of their subject-matter, and do not needto be expressly characterized as applicable only tocertain forms of international agreements. For example,the legal incidents of ratification can have no applica-tion to classes of agreements that do not requireratification. But if the code indicates in what circum-stances agreements are not subject to ratification,there is no need to make express distinctions betweendifferent forms of agreements. Moreover, as Sir H.Lauterpacht pointed out, even in the case of ratification,where the designation of agreements as "treaties"may appear to have particular relevance, there areno classes of international agreements which are in-herently incapable of ratification. An "exchange ofnotes", for example, although normally not subjectto ratification, is sometimes made so by an expressprovision in the notes exchanged.

(10) The present Rapporteur is of the view thatit is undesirable and unnecessary to draw distinctionsbetween different categories of international agree-ments merely on the basis of their form and designation.As was pointed out by the Commission in 1959,distinctions of other kinds do exist, for example,

15 See on this subject the commentaries to Sir G. Fitzmatirice'ssecond report (A/CN.4/107), paras. 115, 120, 125-128 and 165-168; his third report (A/CW4/115), paras. 90-93; and fourthreport (A/CN.4/120), paras. 81 and 101).


between bilateral, plurilateral and multilateral treaties,and, where appropriate, these distinctions find a placein the draft articles (e.g. articles 5, 13, 18, 19 and 20).

(11) Another consideration is that, even in the caseof single formal agreements—treaties in the narrowersense of the word—an extraordinarily rich and variednomenclature has developed which serves to confusethe question of classifying international agreements.Thus, in addition to "treaty", "convention" and "pro-tocol", we not infrequently find titles such as "declara-tion", "charter", "covenant", "pact", "act", "statute","agreement", "concordat", whilst names like "declara-tion" and "agreement" and "modus vivendi" may wellbe found given both to formal and less formal types ofagreements. As to the latter, their nomenclature isalmost illimitable, even if some names such as "agree-ment", "exchange of notes", "exchange of letters","memorandum of agreement", or "agreed minutes",may be more common than others.16

(12) Accordingly, the need for some generic termto cover all forms and designations of internationalagreements is evident. Although some of the membersof the Commission in 1959 would have preferred toconfine the use of the word "treaty" to its classicalmeaning of a single formal instrument, the generalfeeling was that it is the right word to use as thegeneric term enjbracing written international agree-ment. Its use for this purpose is supported by twoimportant provisions of the Statute of the InternationalCourt of Justice. In Article 36, paragraph 2, amongstthe matters in respect of which States parties to theStatute can accept the compulsory jurisdiction of theCourt, there is listed "a. the interpretation of a treaty".But clearly, this cannot be intended to mean thatStates cannot accept the compulsory jurisdiction ofthe Courts for purposes of the interpretation of inter-national agreements not actually called treaties, orembodied in instruments having another designation.Again, in Article 38, paragraph 1, amongst the ele-ments which the Court is directed to apply in reachingits decisions, there is listed "a. international conven-tions". But equally, this cannot be intended to meanthat the Court is precluded from applying other kindsof instruments embodying international agreements,but not styled "conventions". On the contrary, theCourt must and does apply them. The fact that in oneof these two provisions dealing with the whole rangeof international agreements the term employed is"treaty" and in the other the even more formal term"convention" serves to confirm that use of the term"treaty" generically in the present articles to embraceall international agreements is perfectly legitimate.Moreover, the only real alternative would be to usefor the generic term the phrase "international agree-ment", which would not only make the drafting morecumbrous but would sound strangely today, when the"law of treaties" is the term almost universally em-ployed to describe this branch of international law.

(13) The word "treaty" has accordingly been usedthroughout the present articles as a generic term cover-ing international agreements as a whole. In its 1959draft (article 1, paragraph 2), the Commission pre-

16 In his article "The Names and Scope of Treaties"(American Journal of International Law, 51 (1957), Xo. 3,p. 574), Air. Denys P. Myers considers no less than thirty-eight different appellations. See also the list given in Sir H.Lauterpacht's first report (A/CN.4/63), paragraph 1 of thecommentary to his article 2.

faced its definition of "treaty" as a generic term withthe words "Unless the context otherwise requires".These words have been omitted from paragraph (b)of the present article, because it is thought that, if theword "treaty" is defined as having a generic meaningfor the purpose of the draft articles, its use with a par-ticular meaning ought, if possible, to be avoided. Ithas not been found necessary to employ the word inits particular sense in the present articles concerningthe conclusion, entry into force and registration oftreaties, and it may be doubted whether the need willbe found to exist in other branches of the law oftreaties. The one place where it might have been veryconvenient to have a term covering treaties in theclassical sense is in article 10, for the purpose ofdistinguishing agreements presumed to be subject toratification from those presumed not to require it. Ifit is considered that a satisfactory formula has beenfound, or can be devised, to distinguish between formaland less formal agreements in that context, then theSpecial Rapporteur believes that it will be possible toconfine the use of the term "treaty" to its genericsense.17

(14) With one exception, the remaining paragraphsdo not appear to require any explanation, since thedefinitions explain themselves, or at least do so whenread in conjunction with the articles to whose subject-matter they particularly relate. The exception is sub-paragraph (d), which defines "bilateral", "plurilateral"and "multilateral" treaty. The first of these definitionsneeds no comment, but the second and third make adistinction which is important but not easy to drawwith precision. The distinction finds a place in ar-ticle 5, concerning the adoption of the text of thetreaty, articles 7 and 13, concerning respectively theright to sign and the right to accede to a treaty, ar-ticles 18 and 19, concerning consent and objection toreservations, and article 20, concerning entry into forceof treaties. In its 1959 draft, the Commission itselfdrew a distinction between plurilateral and multilateraltreaties in article 6 (adoption of the text) and ar-ticle 17 (the right to sign) without, however, formulat-ing a fully considered definition of the two terms. Inits commentary upon article 1, paragraph 1, the Com-mission referred to a "plurilateral" treaty as one made"between a restricted number or group of States", andreferred to a "multilateral" treaty as "e.g. a generalmultilateral convention concluded at a conference con-vened under the auspices of an international organiza-tion". The text of article 6 paragraph 4 (b) spoke of"treaties negotiated between a restricted group ofStates", evidently meaning "plurilateral" treaties, anddistinguished these treaties from the "multilateraltreaties negotiated at an international conference" andfrom the "treaties drawn up in an international organi-zation or at an international conference convened byan international organization" which were dealt within sub-paragraphs (c) and (d). The text of article 17spoke of "plurilateral treaties negotiated between aregional or other restricted group of States", con-trasting them with "general multilateral treaties". Thecommentary upon that article, in discussing the ques-tion whether international law recognizes the existenceof any abstract right of participation, said that no prob-

17 Truth to tell, if "treaty" were to be given a secondarymeaning of "treaty stricto sensu", the formulation of thatsecondary meaning might not be free from difficulty in drafting,e.g. with regard to "Protocol", "Final Act" and "Proces-verbal".

Law of treaties 35

lem could arise with reference to "treaties (e.g. of aregional character) negotiated between a restrictednumber or group of States"; and it added: "The prob-lem was therefore confined to general multilateraltreaties or conventions, and even so not necessarilyall of them, for it was only in relation to such as couldbe said to be of general interest to all States or in-tended to create norms of general international law,that it was suggested that international law did, orshould, postulate an inherent right of participation forevery State." Thus the 1959 report gives certain indi-cations as to what the Commission had in mind indistinguishing between "plurilateral" and "multilateral"treaties; but these indications scarcely constitute thekind of definition which might provide a sufficientbasis for distinguishing between "plurilateral" and"multilateral" treaties for the purpose of applying tothem differing legal regimes. If the treaty is expresslymade open to participation by any State, it identifiesitself as a multilateral treaty. But for other cases thedefinition is not one which it is easy to formulate withany degree of precision. In the first place, mere restric-tion of the treaty to specified /States is not a sufficientcriterion because many multilateral treaties are sorestricted, even although the class of participatingStates may be a very wide one; indeed, it is becauseparticipation in the treaty is technically "closed" thatthe question of the existence of a right of accessionfor other States arises. Secondly, a purely numericaltest would scarcely be feasible, for it would be a nicequestion to determine when the number of States be-comes sufficiently large for the treaty to be regardedas having passed from the />/ttWlateral to the multi-lateral category. Moreover, it is possible for a treatyto be concluded by a considerable number of States ona regional or other limited basis. Nor in some caseswill it necessarily be clear whether a treaty deals witha matter which is properly to be considered as oneof "general concern". From one point of view, aregional treaty fixing common tariffs is very mucha treaty which deals with a matter of general concern,since outside States are directly affected by it; yet thetreaty is certainly a plurilateral treaty. A treaty wouldseem rather to be of general concern when it dealswith a matter of general interest, such as the supplyof meteorological information or the white slave traffic,and deals with it in a general manner. The definitiontentatively put forward in the text seeks to combinethe element of "number" with that of the generalcharacter of the subject-matter of the treaty.

ARTICLE 2. SCOPE OF THE PRESENT ARTICLES

1. Except to the extent that the particular contextmay otherwise require, the present articles shall applyto every international agreement which under the defi-nitions laid down in article 1, paragraphs (a) and (b),constitutes a treaty for the purpose of these articles.

2. The fact that, by reason of the definitions inarticle 1, paragraphs (a) and (b), an internationalagreement not in written form or a unilateral declara-tion or any other form of international act is excludedfrom the application of the present articles shall notbe understood as affecting in any way such legal forceas these agreements or acts may possess under generalinternational law.

3. Nothing contained in the present articles shallaffect in any way the characterization or classificationof particular international agreements under the in-

ternal law of any State, whether for the purposes ofits domestic constitutional processess or otherwise.

Commentary

(1) Paragraph 1 is sufficiently explained by thediscussion of "international agreement" and "treaty"in the commentary on paragraphs (a) and (b) of ar-ticle 1. Here, the words "except to the extent that aparticular context may otherwise require" preface thestatement as to the scope of the present articles simplyas a recognition of the fact that some of their provi-sions are, either by their express terms or by theirinherent nature, only applicable to certain kinds oftreaties. A provision relating to multilateral treatiescould hardly, for example, have any application to"exchanges of notes".

(2) Paragraph 2 does two things. First, it em-phasizes that the draft articles do not cover interna-tional agreements not drawn up in written form, andthat they have no reference to unilateral declarationsor to any other international act falling outside thedefinitions in article 1, paragraphs (a) and (b). Sec-ondly, it preserves whatever legal force such oralagreements and unilateral instruments or acts maypossess under general international law. In short, with-out going any further into the matter, paragraph 2acknowledges the existence of oral agreements suchas that resulting from the Ihlen Declaration in theEastern Greenland Case18 and of written undertakingssuch as declarations under the Optional Clause of theStatute of the Court; and it puts on record that theiromission from the draft articles is not to be understoodas in any way altering the legal position in regardto them.

(3) Paragraph 3 is designed to safeguard the posi-tion of States in regard to their internal law andusages, and more especially in connexion with theratification of treaties. In many countries, it is a con-stitutional requirement that international agreementsin a form considered under the internal law or usageof the State to be a "treaty" must be "ratified" bythe legislature or have their ratification authorized byit—perhaps by a specific majority; whereas otherforms of international agreement are not subject tothis requirement. Moreover, recourse is not infre-quently had to less formal types of international agree-ment for the very purpose of obviating the need ofbringing the agreement before the legislature, eitherbecause its subject-matter appears to render this un-necessary or for other reasons.19 Accordingly, it isquite essential that the definition given to the term"treaty" in the present articles should do nothing todisturb or affect in any way the existing domesticrules or usages which govern the classification of inter-national agreements.

ARTICLE 3. CAPACITY TO BECOME A PARTY TO TREATIES

1. Capacity in international law (hereafter referredto as international capacity) to become a party totreaties is possessed by every independent State,whether a unitary State, a federation or other formof union of States, and by other subjects of interna-tional law invested with such capacity by treaty or byinternational custom.

"Series A/B No. 53.] 0This point is referred to ajrain in the commentary on

article 10.


2. (a) In the case of a federation or other unionof States, international capacity to be a party to treatiesis in principle possessed exclusively by the federal Stateor by the Union. Accordingly, if the constitution of afederation or Union confers upon its constituent Statespower to enter into agreements directly with foreignStates, the constituent State normally exercises thispower in the capacity only of an organ of the federalState or Union, as the case may be.

(b) International capacity to be a party to treatiesmay, however, be possessed by a constituent State ofa federation or union, upon which the power to enterinto agrements directly with foreign States has beenconferred by the Constitution:

(i) If it is a member of the United Nations, or(ii) If it is recognized by the federal State or Union

and by the other contracting State or Statesto possess an international personality of itsown.

3. (a) In the case of a dependent State the con-duct of whose international relations has been entrustedto another State, international capacity to enter intotreaties affecting the dependent State is vested in theState responsible for conducting its international rela-tions, except in the cases mentioned in sub-para-graph (&).

(&) A dependent State may, however, possess inter-national capacity to enter into treaties if and in sofar as:

(i) The agreements or arrangements between itand the State responsible for the conduct of itsforeign relations may reserve to it the powerto enter into treaties in its own name; and

(ii) The other contracting parties accept its par-ticipation in the treaty in its own name sepa-rately from the State which is responsible forthe conduct of its international relations.

4. International capacity to become a party to trea-ties is also possessed by international organizations andagencies which have a separate legal personality underinternational law if, and to the extent that, suchtreaty-making capacity is expressly created, or neces-sarily implied, in the instrument or instruments pre-scribing the constitution and functions of the organiza-tion or agency in question.

Commentary(1) The draft articles adopted by the Commission

in 1959 did not contain an article on capacity to con-clude treaties. The reason was that, without in anyway committing itself, the Commission had provi-sionally adopted a plan for the intended code of treatylaw under which the question of "capacity of parties"was to be dealt with in part II of the code as one ofthe topics of the "essential or substantive validity" oftreaties, part I being confined to matters relating tothe "formal" validity of treaties (A/4169, chapter II,paragraph 14). Capacity under international law tobecome a party to treaties has, however, a dual aspect,since it touches the question, what kind of legal personsare necessary as parties to an agreement if it is to beconsidered a treaty, as well as the question of thevalidity under international law of the agreementclaimed to be a treaty. No doubt, it was for this reasonthat Sir H. Lauterpacht in his first report (A/CN.4/63) dealt in detail with capacity to enter into treaties,both in his commentary upon his article 1, covering the

essential requirements of a treaty, and in his article 10,covering "capacity of the parties" in its relation to thesubstantive validity of a treaty. Now that the Commis-sion is engaged in formulating draft articles for a pos-sible convention on treaty law, it may feel that toomit "capacity of parties" from the provisions con-cerning the conclusion of treaties would leave a notice-able gap in the articles, and the Special Rapporteurhas accordingly prepared the present article for theCommission's consideration.

(2) Paragraph 1 sets out the general rule in regardto treaty-making capacity. In formulating it, the Spe-cial Rapporteur has taken account of the opinion ex-pressed by the Commission in its commentary onarticle 2 of its 1959 draft that, whereas treaty-makingcapacity involves international personality in the sensethat all entities having treaty-making capacity neces-sarily have international personality, it does not followthat all international persons have treaty-makingcapacity. The phrase "other subjects of internationallaw invested with such capacity by treaty or by inter-national custom" is designed primarily to cover thecases of international organizations and agencies andother entities like the Holy See. In its 1959 com-mentary the Commission said:

"It has always been a principle of internationallaw that entities other than States might possessinternational personality and treaty-making capacity.An example is afforded by the case of the Papacy,particularly in the period immediately preceding theLateran Treaty of 1929, when the Papacy exercisedno territorial sovereignty. The Holy See was never-theless regarded as possessing international treaty-making capacity. Even now, although there is aVatican State which is under the territorial sove-reignty of the Holy See, treaties entered into by thePapacy are, in general, entered into not by reasonof territorial sovereignty over the Vatican State, buton behalf of the Holy See, which exists separatelyfrom that State."

States, including dependent States, and internationalorganizations are dealt with in more detail in thefurther paragraphs of this article, but it has not beenthought necessary to deal more specifically with theHoly See.

(3) Paragraph 2 seeks to cover the cases of federalStates or Unions of States where the treaty-makingcapacity may under their constitutions be to some ex-tent shared between the federation or Union and itscomponent units. The subject is not free from difficulty,as can be seen from its somewhat different treatmentin the reports of Sir H. Lauterpacht and Sir G. Fitz-maurice. The former, who did not, however, formulateany draft rules on the point, appears to have consideredthat the component States of a federation may incertain circumstances have a measure of treaty-makingcapacity, and even that agreements between the twocomponent States of a federation can be consideredtreaties in the international sense (A/CN.4/63, com-mentary on articles 1 and 10). He referred in thisconnexion to the application by municipal tribunalsof the doctrine of rebus sic stantibus to "treaties" be-tween two component States of the German Federationin the case of Bremen v. Prussia20 and of the SwissFederation in the case of Canton of Thurgau v. Canton

20 Annual Digest of Public International Law Cases, 1925-6,Case No. 266.

Law of treaties 37

of St. Gallen.21 Sir G. Fitzmaurice, on the other hand,in article 8 of his draft on the essential validity oftreaties (A/CN.4/115) strictly confined internationalcapacity to conclude treaties to the federation itself anddeclined to attribute any treaty-making capacity to acomponent State in its own right; and he regardedany treaty-making authority conferred upon a com-ponent State simply as the authority of a subordinateagent or organ contracting on behalf of the federa-tion. In other words, what is given in paragraph (a)of the present draft article as the normal rule was putforward by Sir G. Fitzmaurice as the sole rule.

(4) However close the analogy may be betweeninternational treaties and agreements between twocomponent units of a federation or Union of States,it seems impossible to regard the latter agreements asexamples of the exercise of international treaty-makingcapacity without risking confusion between the spheresof operation of international and domestic law. Nor-mally, at any rate, agreements between componentStates of a federation operate within the regime of theconstitutional law of the federation; if the federationsubsequently dissolves, questions may arise as to thestatus of the agreements, but that problem belongsto another branch of the law of treaties. Accordingly,although in certain types of federation inter-State orinter-provincial agreements may appear to be similarto treaties, it does not seem appropriate to classifythese agreements as arising from the exercise of inter-national treaty-making capacity. No such agreement,it is believed, has ever been registered under therelevant provisions of the Covenant or Charter.

On the other hand, it may perhaps be thought togo too far in the opposite direction to deny altogetherthe possibility of any separate treaty-making capacityfor the component State of a federation or union,even in those cases where both the domestic constitutionand foreign States have recognized the componentState to possess a measure of international personality.The examples, if not numerous, are important anddifficult to overlook in draft articles on the law oftreaties; for the Ukraine and Byelorussia are not onlyMembers of the United Nations but have also beenadmitted as parties to many multilateral treaties intheir own right. If both the federal constitution andthird States recognize a component State to possessa measure of seperate international personality, it seemsdifficult to deny it any international treaty-makingcapacity in the present articles. Nor is the questionpurely academic, because it may be necessary to knowin a given case whether the other contracting Statesmust look to the component State alone for the per-formance of the obligations undertaken in the treatyor whether the federation is also liable for the non-performance of the treaty by the component State.It is indeed possible that the component State mightmake a reservation not made by the federation itself.Accordingly, a rule has been formulated in paragraph(b) of the present article which, while not con-templating an unrestricted right for component Statesto claim treaty-making capacity, admits such capacityto the extent that the State's separate internationalpersonality is recognized both by the constitution ofthe federation and by the other contracting State orStates.

(5) An analogous problem is posed by protectoratesand other dependent States in cases where the treaties

or arrangements establishing the status of dependencyplace the general conduct of the State's foreign relationsin the hands of another State but do not exclude allpossibility of agreements being made directly betweenthe dependent State and a foreign State. For example,the Court said in the case concerning the Rights ofNationals of the United States of America in Morocco,22

that Morocco had "made an arrangement of a con-tractual character whereby France undertook to ex-ercise certain sovereign powers in the name and onbehalf of Morocco, and, in principle, all of the inter-national relations of Morocco"; but that Morocco hadnevertheless "remained a sovereign State" and had"retained its personality as a State under inter-national law"; moreover, as was mentioned by Sir H.Lauterpacht (A/CN.4/63, commentary to article 10),Morocco was admitted to the signature of a numberof multilateral treaties as a separate party in its ownright, even while still under the protection of France.And Tunisia was another example of the same kind.In such cases, the protected State would seem toretain a measure of treaty-making capacity in itsown right, even although its exercise may be' subjectto the consent of the protecting Power. It scarcelyseems possible, however, to attribute the same measureof treaty-making capacity to a self-governing territorynot possessing the character of a State. It is truethat a dependent self-governing territory has sometimesbeen admitted to separate participation in multilateraltreaties, usually of a technical or economic character,in its own name.23 But it seems doubtful whether insuch cases the other contracting parties do or canlegally look upon the self-governing territory as adistinct juridical person and a responsible party tothe treaty entirely separate from the parent State.

(6) Paragraph 4 of this article seeks to state thegeneral rule in regard to the treaty-making capacityof international organizations and agencies. The viewhas previously been expressed in theMhtr-oduction tothis report that the appropriate method of dealing withtreaty-making by international organizations is todeal with it in a separate chapter, and it may bewondered why it is proposed to include a rule con-cerning- their treaty-making capacity in the presentarticle. The reason is that it seems logical to regardtreaty-making capacity as a general matter distinct,from the procedure of treaty-making, and to includeit in chapter I. If this arrangement is accepted, thenthe appropriate place for the general rule concerningthe treaty-making capacity of organizations is in thepresent article. As to the rule proposed in paragraph4, it is based upon principles analogous to those laiddown by the International Court of Justice in itsopinion on "Reparations for Injuries Suffered in theService of the United Nations"24 for determining thecapacity of the United Nations to present an inter-national claim. In particular, it is based upon thestatement25 of the Court that: "Under internationallaw, the Organization must be deemed to have thosepowers which, though not expressly provided forin the Charter, are conferred upon it by necessaryimplication as being essential to the performance ofits duties."

21/Wrf., 1927-8, Case No. 289.

2 2 I.C.J. Reports, 1952, pp. 182 and 185.2 3 E.g. Universal Postal Union, World Health Organization

and International Trade Organization.2 4 I.C.J. Reports, 1949, p. 171, at p. 179.2 5 Ibid., p. 182.


Chapter II. The rules governing the conclusionof treaties by States

ARTICLE 4. AUTHORITY TO NEGOTIATE, SIGN, RATIFY,ACCEDE TO OR ACCEPT A TREATY

1. A representative of a State purporting to haveauthority to negotiate and draw up the terms of atreaty on behalf of his State shall be required, exceptin the cases mentioned in paragraph 3, to furnish orexhibit credentials issued by the competent authorityin the State concerned and providing evidence of suchauthority. He is not, however, required for these pur-poses to be in possession of full-powers to sign thetreaty.

2. (a) A representative of a State purporting tohave authority to sign (whether in full or ad referen-dum), ratify, accede to or accept a treaty on behalf ofhis State shall be required, except in the cases men-tioned in paragraph 3 -(b) below, to produce full-powers which invest him with authority to executethe act in question.

(b) Full-powers shall be in the form prescribed bythe law and practice of the State concerned and shallemanate from the competent authority in that State.They may either be in a form restricted to the execu-tion of the particular act concerned or in the formof a general grant of full-powers which covers theexecution of that particular act.

(c) In case of delay in the transmission of theinstrument of full-powers, a letter or telegram evidenc-ing the grant of full-powers sent by the competentauthority of the State concerned or by the head ofits diplomatic mission in the country where the treatyis negotiated may be employed provisionally as a sub-stitute for full-powers, subject to the production indue course of an instrument of full-powers, executedin proper form. Similarly, full-powers issued by aState's permanent representative to an internationalorganization may also be employed provisionally as asubstitute for full-powers issued by the competent au-thority of the State concerned, subject to the produc-tion in due course of an instrument of full-powersexecuted in proper form.

3. (a) Heads of a diplomatic mission have authorityex officio to negotiate a bilateral treaty between theirState and the State to which they are accredited andto authenticate its text. They are, however, bound tocomply with the provisions of paragraph 2 of thisarticle, concerning the production of full-powers forthe purpose of signing or ratifying the treaty on behalfof their State.

(b) Heads of State, Heads of Government andForeign Ministers have authority, ex officio, to nego-tiate and authenticate a treaty on behalf of their State,and to sign, ratify, accede to or accept a treaty onits behalf; and they are not required to furnish anyevidence of specific authority to execute any of theseacts.

Commentary(1) In the Commission's 1959 draft articles the au-

thority of representatives to negotiate was dealt within article 6, paragraphs 2 and 3, and their authorityto sign in article 15. The Commission itself did nothave time to consider the questions of ratification,accession and acceptance, so that there is no provisionin the 1959 draft articles concerning authority to exe-cute these acts; and Sir G. Fitzmaurice's drafts on

these matters do not cover the point. Nevertheless, thequestion of the representative's authority does arisealso in regard to ratification, accession and acceptance;and, in order to avoid repetition, it seems better tocover all four cases of authority to exercise the treaty-making power on behalf of a State in a single article.The present article, therefore, contains the substance ofthe provisions of article 6, paragraphs 2 and 3, andarticle 15 of the Commission's 1959 draft, with somemodifications and additions; while the present com-mentary also incorporates the relevant parts of the1959 Commentary.

(2) Paragraph 1 deals with authority to negotiate,as distinct from authority to sign. While authority tosign, if possessed by the representative at the stageof negotiation, may reasonably be held to imply au-thority to negotiate, the reverse is not true; and, exceptin the cases mentioned in paragraph 3 (a), a furtherauthority specifically empowering him to sign will berequired before signature can be affixed. Per contra itis not necessary, for the purposes of negotiating anddrawing up a treaty, to be in possession of full-powersto sign; credentials or ex officio authority under para-graph 3 suffice for these purposes.

(3) Paragraph 2 (a) lays down the general rulethat, except for Heads of State, Heads of Governmentor Foreign Ministers, who are exempted in para-graph 3 («), a representative is required to producefull-powers specifically authorizing him, as the casemay be, to sign, ratify, accede to or accept the treatyin question. In point of fact, the normal practice inregard to instruments of ratification, accession andacceptance appears to be that the instruments are exe-cuted directly by the Head of State or Head of Govern-ment or by the Minister of Foreign Affairs, in whichcase they fall under the exception in paragraph 3 (a).Nevertheless, the execution of these acts is sometimesentrusted to the head of a diplomatic mission or thepermanent representative of the State at the head-quarters of an international organization, and then theproduction of full-powers will be necessary.26

In 1959, the Commission was divided on the ques-tion whether full-powers are necessary for signaturead referendum as well as for signature in full, partlybecause it lacked information as to the actual practiceof Governments and partly because of differences ofview as to the exact legal effect of signature adreferendum. The practice of Governments in regardto treaties of which the Secretary-General of the UnitedNations is depositary indicates that no distinction ismade for this purpose between signature in full andsignature ad referendum.27 The Commission may feelthat it now has a sufficient basis for framing the rulein that sense, and paragraph 2 (a) has therefore beendrafted in that form for the Commission's consideration.

(4) Paragraph 2 (b) deals with the form of full-powers. While the procedure of ratification of an inter-national act is regulated by international law, the par-ticular forms used for full-powers and the particularauthorities within the State which issues them arematters which, in principle, are left to be determinedby the domestic laws and usages of each State. Nor-mally, full-powers are issued ad hoc for the executionof the particular act in question, but there does not

26 See Summary of the Practice of the Secretary-General asDepositary of Multilateral Agreements (ST/LEG/7), para-graph 37.

"" See ibid., paragraph 31.

Law of treaties 39

appear to be any reason why full-powers should notbe couched in a general form provided that they leaveno doubt as to the scope of the powers which theyconfer. Some countries, it is believed, may adopt thepractice of issuing to certain Ministers, as part of theirnormal commissions, general or standing full-powerswhich, without mentioning any particular treaty, conferon the Minister general authority to sign treaties orcategories of treaties on behalf of the State.28 In addi-tion, some permanent representatives at the head-quarters of international organizations, that are thedepositaries of multilateral treaties, are clothed by theirStates with general full-powers, either included in theircredentials or contained in a separate instrument. Italso appears that during regular sessions of the Gen-eral Assembly the permanent representatives are some-times given general full-powers with respect to agree-ments which may be concluded during the session (seeSummary of the Practice of the Secretary-General(ST/LEG/7), paragraph 35). The Commission willbe glad eventually to have information from Govern-ments as to their practice in regard to "general" full-powers. In the meanwhile, it seems justifiable tentativelyto insert in paragraph 2 (b) a provision admitting thesufficiency of full-powers framed to cover treaties gen-erally or specific categories of treaty. But, whether thefull-powers be general or particular, they must besufficient to invest the representative with authorityto execute the particular act in question—signature,ratification, accession or acceptance, as the case may be.

(5) Paragraph 2 (c) recognizes a practice of com-paratively recent development which is of considerableutility and should serve to render initialling and sig-nature ad referendum unnecessary save in exceptionalcircumstances. If the promised full-powers do not indue course arrive, the signature provisionally admittedon the emergency basis contemplated in this sub-paragraph naturally becomes a nullity and the Stateconcerned is in the same position as if its signaturehad never been affixed to the treaty.

The Summary of the Practice of the Secretary-General (ST/LEG/7), paragraph 29, states that since1949 "full-powers issued by a permanent representa-tive to the United Nations acting on instructions fromhis Government have in practice been accepted ashaving the same validity as full-powers transmitted bytelegraph for purposes of signing conventions which aresubject to ratification". The part played by permanentrepresentatives to international organizations in moderndiplomatic life is now so well recognized and so im-portant that it seems desirable to take account of thepractice of the Secretariat of the United Nations in thepresent connexion. If the head of a diplomatic missionmay issue a letter provisionally evidencing the grantof full-powers, there would certainly seem to be noreason why the Head of a permanent mission to aninternational organization should not do the equivalenton the same provisional basis for the purpose of sign-ing, ratifying, acceding to or accepting a treaty forwhich the organization is the depositary. A sentencecovering this point has accordingly been inserted inparagraph 2 (c) and is submitted for the Commission'sconsideration.

(6) Paragraph 3 (a) notices a well-established ex-ception to the rule that the representative of a Statedeputed to negotiate a treaty on its behalf must furnish

28 See paragraph 3 of the commentary on article 15 of theCommission's 1959 draft.

credentials evidencing his authority to negotiate thetreaty. Such authority is inherent in the Head of adiplomatic mission in virtue of his credentials as suchand the functions of his office. Thus, article 3 (c) ofthe Vienna Convention on Diplomatic Relations pro-vides that "the functions of a diplomatic mission con-sist, inter alia, in . . . negotiating with the Governmentof the receiving State".

Paragraph 3 (b) notices equally well-establishedexceptions not only to the rule concerning the furnish-ing of credentials but also to the rule concerning thefurnishing of full-powers. It is inherent in the officeand function of Heads of State, Heads of Governmentand Foreign Ministers that they possess authority bothto negotiate a treaty and to sign, ratify, accede to oraccept a treaty on behalf of their State. In the caseof Foreign Ministers, the inherent authority of theMinister to bind his Government in negotiations witha foreign State was expressly recognized by the Per-manent Court of International Justice in the EasternGreenland case29 in connexion with an oral undertakingby the Foreign Minister of Norway, commonly referredto as the "Ihlen Declaration".

ARTICLE 5. ADOPTION OF THE TEXT OF A TREATY

1. The adoption of the text or texts setting out theprovisions of a proposed treaty takes place:

(a) In the case of a bilateral treaty, by 'mutualconsent of the parties;

(b) In the case of a plurilateral treaty, by unanimityunless the States concerned shall decide by commonconsent to apply another voting rule;

(c) In the case of a multilateral treaty drawn up atat an international conference convened by the Statesconcerned, by any voting rule that the conference shall,by a simple majority, decide to apply;

(d) In the case of a multilateral treaty drawn upat an international conference convened by an interna-tional organization, by any voting rule that may beprescribed in the constitution of the organization, or ina decision of the organ competent to determine thevoting rule, and, failing any such decision, by the rulethat the conference shall by a simple majority decideto apply;

(e) In the case of a multilateral treaty drawn up inan international organization, by any voting rule thatmay be prescribed in the constitution of the organiza-tion or, failing any such constitutional provision, in adecision of the organ competent to decide the votingrule.

2. The participation of a State in the adoption of thetext of a treaty, whether in negotiation or at an inter-national conference, shall not place it under any obliga-tion to proceed afterwards to sign, ratify, accede to, oraccept the said treaty. A fortiori, such participationshall not place it under any obligation to carry out theprovisions of the treaty.

3. Nothing contained in paragraph 2 of this articleshall, however, affect any obligation that a State par-ticipating in the drawing up of a treaty may have,under general principles of international law, to refrainfor the time being from any action that might frustrateor prejudice the purposes of the proposed treaty, ifand when it should come into force.

29 Series A/B 53, p. 71.


Commentary

(1) This article incorporates the substance of ar-ticle 6, paragraph 4, and of article 8 of the draft articlesapproved by the Commission in 1959. It does notseem to the Special Rapporteur that the provisions ofarticle 7 of the 1959 draft are suitable for inclusionin a convention, as distinct from an expository code.Article 7 of that draft read as follows:

"Elements of the text

" 1 . It is not a juridical requirement of the textof a treaty that it should contain any particularrubric, such as a preamble or conclusion, or otherspecial clause.

"2. However, in addition to a statement of itspurpose and an indication of the parties, provisionsnormally found in the text of a treaty are thoseconcerning the date and method of the entry intoforce of the treaty, the manner of participation ofthe parties, the period of its duration, and otherformal and procedural matters.

"3 . In those cases where a treaty provides ex-pressly that it shall remain open for signature, orprovides for ratification, accession, acceptance, com-ing into force, termination or denunciation, or anyother matter affecting the operation of the treaty,it should indicate the manner in which these pro-cesses are to be carried out and the requisite com-munications to the interested States which are tobe made."

These provisions appear to point out what it is desirablethat a model text of a treaty should contain rather thanto state rules of law. The Special Rapporteur there-fore suggests that it is unnecessary to do more thanto recall them in the commentary to the present article.

(2) Paragraph 1 of the present article embodiesand largely repeats the rules set out in paragraph 4of article 6 of the 1959 draft concerning the voting1

rules for the adoption of the text of a treaty, withthe difference that those rules are here set out underfive heads instead of four. The reason which led theSpecial Rapporteur to make this change is that para-graphs (c) and (d) of the 1959 draft really coverthree, not two, distinct types of case, and it seemedsimpler to treat them in three separate paragraphs.

(3) Paragraph 1 of the present article deals withthe voting rule by which the text of the treaty is"adopted", i.e., the voting rule by which the formand content of the proposed treaty is settled. At thisstage, the negotiating States are concerned only withdrawing up the text of the treaty as a documentsetting out the provisions of the proposed treaty, andtheir votes, even when cast at the end of the negotiationsin favour of adopting the text as a whole, relatesolely to this process. A vote cast at this stage, there-fore, is not in any sense an expression of the State'sagreement to be bound by the text, which can onlybecome binding upon it by a further expression ofits consent (signature, ratification, accession or accept-ance) in accordance with the provisions of articles 7to 16 of these draft articles.

(4) Sub-paragraphs fa) and (b) of paragraphs 1express the obvious principles (a) that the text of abilateral treaty can only be adopted by mutual consentand (b) that the rule of unanimity must also applyin the case of treaties negotiated between a smallnumber or a restricted group of States for some

specific common purpose, unless they agree—by unani-mous vote—to adopt a different voting rule.

(5) The main problem is the voting rules for adopt-ing general multilateral treaties, and here a distinctionhas to be made between treaties drawn up at conferencesconvened by the negotiating States themselves andthose drawn up either within an international organiza-tion or at a conference called by an internationalorganization. For in the latter type of case the organiza-tion itself may play a role in settling the voting rule.

(6) Sub-paragraph (c) deals with the first typeof case, where the conference is convened by the Statesthemselves. There seems to be little doubt that upto the First World War the unanimity rule generallyapplied also at this type of conference, and in 1959 somemembers of the Commission considered this still tobe the basic rule in the absence of an express decisionto the contrary. The general feeling in the Commission,however, was that in recent times the practice at largeinternational conferences of adopting texts by somekind of majority had become so invariable that itwould now be unrealistic to postulate any other system.A conference can still, of course, decide to proceed byunanimity, but in the absence of any such decisionit must now be assumed that it will proceed on thebasis of a majority voting rule. The only questionsnow are, what is the majority to be and how is theconference to decide on that majority—i.e., does thisinitial decision itself require to be taken by unanimity,or can it equally be taken by majority vote and, ifso, by what majority?

(7) The commission had some initial doubts in1959 as to exactly how1 far it is appropriate for acode of treaty law to lay down voting rules for aninternational conference convened by States for thepurpose of drawing up the text of a treaty. Ultimately,however, while considering that it should refrain fromlaying down a hard and fast voting rule for the adoptionof the treaty, the Commission concluded that it isessential to prescribe by what means the conferenceshould arrive at its decision concerning the votingrule. It might be true that a conference would usuallyarrive at it somehow, but perhaps only after longprocedural debates, delaying the start of the substantivework of the conference. Once this view had beenadopted by the Commission, there was general agree-ment that the rule of the simple majority as the basisof the adoption by the. conference of its rules ofprocedure, including its substantive voting rule, wasthe only practicable one. The Conference's substantivevoting rule—i.e., for the adoption of texts, and fortaking any other non-procedural30 decisions, would thenbe such as the Conference, by a simple majority, decidedupon. This substantive voting rule might itself be asimple majority rule, or it might be two-thirds, oreven, theoretically, unanimity.

(8) Sub-paragraph (d) deals with the case, nowincreasingly common, where a multilateral treaty isdrawn up at a conference convened by an internationalorganization. The constitutions of some organizations,such as the International Labour Organisation, pre-scribe in detail the method by which treaties concludedunder their auspices shall be drawn up. Those ofothers do not. However, the appropriate organ of the

30 The rule of the simple majority vote for proceduraldecisions is universally admitted; but the discussion here relatesto substantive decisions—in particular those leading to theadoption of texts.

Law of treaties 41

organization, if it is constitutionally empowered to doso, may, in deciding to convene a conference, prescribethe voting rule in advance as one of the conditionsfor doing so. In the absence of any rule having beenlaid down in advance either by the constitution orby the decision of the organization, the determinationof the voting rule clearly rests with the conferenceitself, and that determination, as in cases under sub-paragraph (c), should itself be made by a simplemajority. Thus, according to the Secretary of the Com-mission, the practice of the Secretariat of the UnitedNations, when the General Assembly convenes a confer-ence, is, after consultation with the groups and interestsmainly concerned, to prepare provisional or draft rulesof procedure for the conference, including a suggestedvoting rule, for adoption by the conference itself. Butit is left to the conference to decide whether to adoptthe suggested rule or replace it by another.

(9) Sub-paragraph (e) deals with the case where thetreaty is drawn up within the international organizationitself. In these cases it would seem that, if the constitu-tion of the organization. dose not prescribe the votingrule, the determination of the rule must rest with theorgan competent under the constitution to lay downthe voting rule; in other words, either with theorgan within which the treaty is to be drawn upor some other organ competent to give directions toit concerning the voting rule to be applied.

(10) Paragraphs 2 and 3 of the present articleembody, with some redrafting, the two paragraphs ofarticle 8 of the 1959 draft, which was entitled "Legalconsequences of drawing up the text". This title, asthe 1959 commentary conceded, was "slightly elliptical",in that the primary rule stated in the article, as inparagraphs 2 and 3 of the present article, was thatadoption of the text of a treaty does not involve legalconsequences. That being so, the present Rapporteurdoes not think it justifiable to place these paragraphsin a separate article, and suggests that the properplace for them is in the present article. Truth to tellsuch "direct or positive" legal consequences as mightseem to follow from participation in the adoption ofthe text of a treaty really attach to participation inthe "authentication" of the text, which falls under thenext article. This seems to the Special Rapporteur tobe another reason why it may be better not to have aseparate article which deals with the so-called "legalconsequences of drawing up the text".

(11) Paragraph 2 of the present article has beendrafted somewhat differently from article 8, paragraph1, of the 1959 draft, to which it corresponds. Thephrase "does not involve any obligation to accept thetext", found in the 1959 draft, seems to the SpecialRapporteur to be open to objection on two grounds.First, the "acceptance" of a treaty text is a technicalprocess in treaty-making (see article 16 of the presentdraft) and it seems better to avoid the use of the word"accept" in its non-technical meaning, so far as possible.Secondly, the phrase "accept the text" is ambiguousand confusing in the context of this paragraph. Forthe chief object of this paragraph is to underline thedistinction between "adopting" the "text" and "agree-ing" to the "treaty" itself. The intention in the para-graph, as the 1959 commentary confirms, was to empha-size that adoption of the text does not involve anyobligation to carry out the treaty, but the words"accept the text" used in the paragraph do not expressthat intention and may confuse the issue. In any

event, it seems desirable also to make the point thatparticipation in the adoption of the text involves noobligation to proceed afterwards to become a partyto the treaty; this point has accordingly been added.

ARTICLE 6. AUTHENTICATION OF THE TEXT ASDEFINITIVE

1. Unless another procedure has been prescribedin the text or agreed upon by the negotiating States,the text of the treaty as finally adopted may beauthenticated in any of the following ways:

(a) Initialling of the text by the representativesof the States concerned;

(b) Incorporation of the text in the Final Actof the conference in which it was adopted;

(c) Incorporation of the text in a resolution of aninternational organization in which it was adopted orin a resolution of one of its organs or in any othermanner prescribed by the Constitution of the organiza-tion concerned.

2. In addition, signature of the text by a representa-tive of a negotiating State, whether a full signature orsignature ad referendum, shall automatically constitutean authentication of the text of a proposed treaty,if the text has not been previously authenticated inanother manner with respect to that State under theprovisions of paragraph 1 of this article.

3. On authentication in accordance with the fore-going provisions of the present article, the text shallbecome the definitive text of the treaty. No additionsor amendments may afterwards be made to the textexcept by means of the adoption and authenticationof a further text providing for such additions oramendments.

Commentary(1) This article repeats, with minor drafting changes,

the provisions of article 9 of the 1959 draft, and thecommentary which follows repeats, in abbreviated form,the 1959 commentary.

(2) Authentication of the text is necessary in orderthat, before the negotiating States are called uponto decide whether they will become parties to thetreaty or not—or in some cases before they are calledupon to decide whether they will even sign it, as anact of provisional consent to the treaty—they mayknow finally and definitively what is the text of thetreaty which, if they take these decisions, they willbe signing or becoming parties to. It is clear thatsuch steps as signature, ratification, accession, bringinginto force, etc., can only take place on the basis of atext the terms of which have been settled, and arenot open to change. There must come a point, therefore,at which the process of negotiation or discussion ishalted, and the text which the parties have agreedas a text is established as being the text of the proposedtreaty. Whether the States concerned will eventuallybecome bound by this treaty is of course anothermatter, and remains quite open. None is committedat that stage. But if they are eventually to becomebound, they must have, as the basis of any furtheraction, a final text not susceptible of alteration. Authen-tication is the process by which this final act is estab-lished, and it consists in some act or procedure whichcertifies the text as the correct and authentic text.

(3) Accordingly, once a recognized procedure ofauthentication has been carried out in relation to a


text, any subsequent alteration of it results not merelyin an amended text, but in a new text, which willthen itself require authentication or reauthenticationin some way. Thus, where signature is itself the methodof authentication, changes effected after signature wouldrequire the text to be re-signed or re-initialled, ora new text to be drawn up and signed; or alternativelya separate protocol registering and authenticating thechanges would have to be drawn up and signed. Ingeneral, no changes could be made to the originalsigned text or signature copy itself, for then the partieswould be on record as having signed a text differentfrom the one which, at the actual date of signature,they did sign. If changes should be made on theoriginal signed text or signature copy, they wouldthemselves require to be signed or initialled, and dated.The document as a whole would then stand authen-ticated as the actual text of the treaty. But final estab-lishment of the text at some point there must be, and,in order to register and stabilize this text as the basisfor ratification (where necessary) and entry into force,there must be an eventual authentication of it in itsfinal form by some recognized method.

(4) The same considerations apply, mutatis mu-tandis, and perhaps even more obviously, where au-thentication of the original text has taken place, notby signature but, e.g., by embodiment of the text inthe final act of a conference, or in a resolution of anorgan of an international organization.31 Any subse-quent alteration of it would result in a new text, itselfrequiring authentication by the same or some otherrecognized means.

(5) Previous drafts and codes of the law of treatieshave not recognized authentication as a distinct andnecessary part of the treaty-making process. The rea-son appears to be that until comparatively recentlysignature was the normal method of authenticating atext and that signature always has another and moreimportant function; for it also operates as an expres-sion of the State's consent to be bound by the treaty(either conditionally upon ratification or uncondi-tionally if the treaty is not subject to ratification).The authenticating aspect of signature is consequentlymasked by being merged in its consent aspect. Thiswas pointed out by Professor Brierly in his first report(A/CN.4/23, commentary on his article 6), where hewent on to explain that in recent years other methodsof authenticating texts of treaties on behalf of all ormost of the negotiating parties have been devised. Hegave as examples the incorporation of unsigned textsof projected treaties in signed Final Acts of diplomaticconferences, the special procedure of the InternationalLabour Organisation under which the signatures of thePresident of the International Labour Conference andof the Director-General of the International LabourOffice authenticate the texts of labour conventions,

3 1 The practice of the United Nations for purposes ofauthentication is to use the latter two methods specified inparagraph 1 of article 6, rather than the first alternative ofinitialling. The custom of initialling has never been used in theUnited Nations for the purposes of authenticating the text of amultilateral convention. Initialling for the purposes of authenti-cation has been supplanted, in the more institutionalized treaty-making processes of the United Nations, by such standardmachinery as the recorded vote on a resolution embodying orincorporating the text, or by incorporation into a final act.As stated in paragraph 4 of the above commentary, any subse-quent alteration of a text authenticated by these means wouldbe, in effect, the drawing up of a new text, itself requiringauthentication by the same or other recognized means.

and treaties which are not signed at all but opened foraccession and whose texts are authenticated by beingincorporated in a resolution of an international organi-zation. Professor Brierly considered, as is the viewalso of the Commission, that these developments intreaty-making practice render it desirable to emphasizein the draft the distinction between signature of thetexts of treaties as a means of mere authentication andsignature as the process, or part of the process,whereby a State or international organization expressesits consent to be bound by the treaty.

(6) The foregoing comments, it is thought, providea sufficient explanation of the provisions of the presentarticle. It may, however, be added that signature hasbeen dealt with separately in paragraph 2, instead ofbeing included in paragraph 1, primarily for the reasonthat, whereas the processes listed in paragraph 1 arealways, or almost always, acts of authentication, thisis not the case with signature, which may not be anact of authentication if the text has already been au-thenticated by another process, such as incorporationin the Final Act of a conference.

(7) The Commission decided in 1959 that there isno need to provide expressly in the draft that "seal-ing", i.e., the affixing of seals as well as signatures tothe treaty, which was a common practice in the past,is unnecessary despite the appearance in a treaty ofthe common-form recital "have signed the presenttreaty and affixed thereto their seals". The Commis-sion—and the present Special Rapporteur is of thesame view—thought it would be sufficient to mentionthe point in the commentary.

ARTICLE 7. THE STATES ENTITLED TO SIGN THE TREATY

1. In the case of bilateral and plurilateral treatiesthe right to sign the treaty shall be confined to theStates participating in the adoption of the text andto such other States as, by the terms of the treaty orotherwise, they may agree to admit to the signatureof the treaty.

2. In the case of multilateral treaties the right tosign shall be governed by the following rules:

(a) Where the treaty specifies the particular Statesor categories of States which are to be entitled to signit, only those States or categories of States have theright to sign;

(b) Where the treaty does not contain any provi-sion on the matter, every State invited to participatein the negotiations, or to attend the conference atwhich the text of the treaty is drawn up shall havethe right to sign the treaty.

(c) Where the treaty does not contain any provi-sion on the matter and is one which has been leftopen for signature, States other than those referredto in sub-paragraph (b) may be admitted to the sig-nature of the treaty:

(i) If the treaty is already in force and more thanfour years have elapsed since the adoption ofthe text, then with the consent of two-thirdsof the parties to the treaty;

(ii) If the treaty is already in force but not morethan four years have elapsed since the adoptionof the text, or if the treaty is not yet in force,then with the consent of two-thirds of the Statesthat participated in the negotiations, or attendedthe conference, at which the text was drawn up.

Law of treaties 43

Commentary

(1) This article repeats, with some changes, theprovisions in article 17 of the 1959 draft articles,which were approved by the Commission; and thepresent commentary reproduces the substance of the1959 commentary, though with considerable abbrevia-tion of the first five paragraphs. The present SpecialRapporteur's explanations of certain changes in thetext of the article are given in paragraphs 8 andfollowing below.

(2) The article deals with the conditions underwhich a State may have a right to sign a treaty, andtouches one aspect of the question whether a State canever be said to have a right to insist on becoming aparty to multilateral treaties which are of generalinterest or lay down norms of general internationallaw. No problem exists in the case of bilateral orplurilateral treaties, since it is clear that outside Statescan only become parties to these treaties with theconsent of the other States concerned, either expressedin the treaty itself or in an agreement separatelyarrived at. In the case of multilateral treaties, how-ever, the problem is a real one, and especially today,since there are many newly created States, and num-bers of multilateral treaties may, by their terms, nolonger be open to signature or accession. The Com-mission in 1959, while recognizing the need to laydown provisions on this matter, considered that anyabstract right of participation in a multilateral treatythat may exist or be thought desirable cannot bewholly divorced from the method by which it may beexercised in a concrete case. In other words, anyright of participation in multilateral treaties of a gen-eral character must be related to the existing pro-cedures of treaty-making in the international com-munity, and to the accepted methods of admittingStates to participation in multilateral treaties. If thisconclusion is accepted, the problem resolves itself intoconsidering, with reference to each method separately(signature, ratification, accession, acceptance), whatStates or categories of States have or should havethe right to participate in the treaty through the par-ticular method concerned. This was the solutionadopted by the Commission in 1959, and it did notthen attempt to reach a final decision concerning theinclusion of a general article about participation inmultilateral treaties. It decided to defer this decisionuntil after the drafting of the individual articles onthe right to sign, ratify, accede, etc. The exchange ofviews in the Commission on the question of a generalright of participation is, however, relevant to theunderstanding of the provisions contained in the pre-sent article concerning the right to sign, and in thoseof articles 13 and 16, concerning the right to accedeto or accept a treaty; and it will therefore be sum-marized in the paragraphs which now follow.

(3) The discussion centred upon the questionwhether international law does, or ought to, postulatean inherent right of participation for every State inmultilateral treaties which are intended to create gen-eral norms of international law or are otherwise ofgeneral interest to all States. Some members of theCommission considered that such an inherent rightought to be postulated on the ground that it is forthe general good that all States should become partiesto such treaties, and that in a world community ofStates, no State should be excluded from participa-tion in treaties of this character.

(4) Other members of the Commission, who did notshare this view, pointed out that, even if the rightwere to be admitted in principle, great practical dif-ficulties would arise in putting it into effect. Eithera treaty of this kind makes provision for the Statesor category of States to be admitted to participation,or it does not. If it does not, either expressly or byimplication, exclude any State then there is no prob-lem. Any State may participate in the treaty by takingthe prescribed steps. If on the other hand the treatycontains some limitation, then it is virtually impos-sible to admit that a State not covered can, by plead-ing an alleged inherent right, insist on participation,thus overriding the wishes and intentions of theframers of the treaty, as expressed in it.

(5) These members pointed out that the problemreally arises at an earlier stage, when the decision istaken who are to be the "framers of the treaty"—inshort, who are to be invited to the conference atwhich the treaty is drawn up? As a rule, participa-tion in the conference (or the right to participate,whether exercised or not) normally determines theright of participation in the treaty. If the eventualtreaty does not limit the class of States which mayparticipate, no difficulty arises; if, however, it doesimpose a limitation, it would usually be found thatthe designated class was the same as that invitedto the conference. In so far as there is a problem,therefore, it can only be dealt with at the invitationstage. It cannot be met by a rule overriding the ex-press provisions of the treaty about participation,which would not, indeed, be juridically possible.

(6) The further point was made that any inherentright of participation, if admitted, would give rise toserious difficulties in relation to the recognition ornon-recognition of States or Governments. Evenalthough the mere fact that a State is a party to amultilateral treaty does not of itself involve recogni-tion of that State or its Government by other parties,nevertheless serious political and other problems wouldarise if parties to a treaty found themselves obligedto admit as a party States or Governments which theymight perhaps have expressly intended to exclude bythe wording of the participation clause.

(7) As to the problem of the new State whichwants to become a party to an old treaty, the Com-mission, although considering this to be an importantmatter, thought that it is mainly a question of acces-sion and belonged more particularly to that subject.It was pointed out that the dimensions of the problemsare in practice slight. Most general treaties of the kindinvolved have accession clauses. The problem arisesprimarily in the case of the older treaties which areno longer open for signature and which either do notexpressly provide for accession or which, like TheHague Conventions of 1899 and 1907 concerning thePacific Settlement of International Disputes or theBarcelona Convention of 1921,32 contain an accessionclause limiting the right of accession to certain States.

(8) Paragraph 1 of the present article contains thesubstance of paragraph 1 of article 17 of the Commis-sion's draft, the differences in the wording beingmerely drafting changes. Paragraph 2 contains thesubstance of paragraph 2 of the Commission's formerarticle 17, and the wording of sub-paragraphs (a) and

32 Convention on the Regime of Navigable Waterways ofInternational Concern, Barcelona, 1921, League of Nations,Treaty Series, vol. VII, pp. 36-63.


(b) is almost the same as that of the correspondingsub-paragraphs of the Commission's draft. These twosub-paragraphs have, however, been transposed be-cause the reverse order seems to be rather more logicaland to give a somewhat neater draft. No further ex-planations of paragraph 1 and paragraph 2 (a) and2 (b) seem to be necessary, beyond those already con-tained in paragraphs 1-7 of the present commentary.

(9) It is, however, necessary to provide a moredetailed commentary on paragraph 2 (c). It is clearthat where a treaty is not left open for signature,States which do not sign on the occasion of the sig-nature cannot do so afterwards. Where, however, thetreaty remains open for signature, the question mayarise of signature by a State not included amongstthe sub-paragraph (b) category of States, i.e., thoseinvited to participate in the negotiation or conference.The existing rule is that, in principle, the treaty is notopen to signature by such a State. But it seemsdesirable to encourage the States concerned to con-sider allowing such a State to become a signatory incertain circumstances, and a specific provision hasbeen inserted in the draft articles for this purpose.The insertion of this provision seems to be par-ticularly necessary in order to cover the possibility ofa signature by a new State which may have attainedindependence after the close of the negotiations orconference but while the treaty is still open to sig-nature. Accordingly, paragraph 2 (c) provides thatthe signature of a State not included in the categoriesin paragraph 2 (b) should be admitted if two-thirdsof the States entitled to a voice in the matter consent.

Opinions may differ as to what States are, or oughtto be, entitled to a voice in deciding whether Statesnot included in the categories in paragraph 2 (b)should be admitted to the signature of the treaty. If,for example, the treaty, while still open to signatureby States comprised in the categories mentioned inparagraph 2 (b), is already in force, it is arguablethat the right to open the treaty to signature by addi-tional States should be confined to actual parties tothe treaty; but it is not absolutely clear that this isnecessarily the right solution, because some treatiesare expressed to come into force after very few sig-natures and the "actual parties" might represent avery small proportion of the interested States. In theother case, where the treaty is not yet in force, it isarguable that all the States which actually attendedthe negotiations or conference,33 whether signatoriesor not, should be entitled to a voice in the decision;but here again, it is not clear that the right of nego-tiating States which have refrained from signing forso long that they may be thought not to have theintention to sign at all ought to be recognized. In1959, the Commission thought that to cover all thevarious uncertainties would require a considerableelaboration of the article, which it did not feel calledupon to undertake at that time. As, however, theCommission is now required to submit the presentdraft articles in their final form, the Special Rap-porteur has thought it incumbent upon him to con-sider whether any further elaboration of paragraph 2

(c) is desirable to take account of those uncertainties.It seems to him that the second type of case, wherethe treaty is not in force, can properly be left outof account because the probability will then be that

3 3 States which, although invited, failed to attend could not,however, have any legitimate claim to a voice in the decision.

comparatively few States will have taken the stepsnecessary for actual participation in the treaty andthere is no very strong argument for limiting the rightof decision to them. On the other hand, it does seemdesirable to place some limit on the right of negotiat-ing States to a voice in the matter if the treaty is inforce and a considerable time has elapsed without theirhaving become parties to it. Accordingly, paragraph 2(c) limits their right to a period of four years afterthe adoption of the text, after which only the actualparties are to have a voice in the matter. It wouldbe possible, perhaps, to devise other more complicatedformulae based on the proportion of the actual partiesto the number of the States that negotiated the treatywhich might be considered more scientific. A some-what simpler rule on the lines of the present draft is,however, believed to be preferable.

(10) It will be appreciated, from what has beensaid above, that the provisions of paragraph 2 (c) ofthe present article relate only to the right to sign atreaty. The more general question whether and towhat extent a State may have a right to become aparty to multilateral treaties is dealt with in article 13in connexion with the right to accede to a treaty.

ARTICLE 8. THE SIGNATURE OR INITIALLING OF THETREATY

1. (a) Signature of a treaty shall normally takeplace at the conclusion of the negotiations or of themeeting or conference at which the text has beenadopted.

(b) The States participating in the adoption of thetext may, however, provide either in the treaty itselfor in a separate agreement:

(i) That signature shall take place on a subse-quent occasion; or

(11) That the treaty shall remain open for signatureat a specified place either indefinitely or untila certain date.

2. (a) The treaty may be signed unconditionally;or it may be signed ad referendum to the Governmentof the State concerned, in which case the signatureis provisional and subject to confirmation within areasonable time by the State on whose behalf it wasmade.

(b) Signature ad referendum, if and so long as ithas not been confirmed, shall operate only as an actauthenticating the text of the treaty.

(c) Signature ad referendum, when confirmed, shallhave the same effect as if it had been a full signaturemade on the date when, and at the place where, thesignature ad referendum was affixed to the treaty.

3. (a) The treaty, instead of being signed, may beinitialled, in which event the effect of the initiallingshall be as follows:

(i) If it is carried out by a Head of State, Headof Government or Foreign Minister with theintention that it shall be the equivalent of afull signature, it shall operate as a full signa-ture of the treaty on behalf of the Stateconcerned;

(ii) In other cases it shall operate only as an au-thentication of the text, and a further separateact of signature is required to constitute theState concerned a signatory of the treaty.

(b) When initialling is followed by the subsequentsignature of the treaty, the date of the signature, not

Law of treaties 45

that of the initialling, shall be the date upon which theState concerned shall become a signatory of the treaty.

Commentary

(1) The present article contains the substance ofarticles 16 and 10 of the Commission's 1959 draftarticles, and the commentary which follows incor-porates the appropriate parts of the 1959 commen-taries relating to these two articles. It seems con-venient to bring the provisions of the two articlestogether, rather than to place them in two quite widelyseparated articles, as was the case in the 1959 draft.For both articles concern the carrying out of the act(or sometimes an embryo act) of signature, and bothtouch the question of the date upon which a Statebecomes the signatory to a treaty. Moreover, fromone point of view the question of the time and placeof signature dealt with in article 16 of the 1959 draftwould seem logically to precede the questions of sig-nature ad referendum and initialling.

(2) The antithesis in paragraph 1 of the presentarticle is between the treaty that remains open forsignature until a certain date—or else indefinitely—and the treaty that does not. Most treaties, in par-ticular bilateral treaties and treaties negotiated betweena restricted number or group of States, do not remainopen for signature. They are signed either immediatelyon the conclusion of the negotiation, or on some laterdate especially appointed for the purpose. In eithercase, States intending to sign must do so on the occa-sion of the signature, and cannot do so thereafter.They may of course still be able to become parties tothe treaty by some other means, e.g., accession (as towhich see articles 13-16).

In the case of general multilateral treaties, or con-ventions negotiated at international conferences, therehas for some time been a growing tendency to includea clause leaving them open for signature until a cer-tain date (usually six months after the conclusionof the conference). In theory, there is no reason whysuch treaties should not remain open for signatureindefinitely, and cases of this are on record:34 how-ever, the utility and practicability of that must dependon the character of the particular treaty. The practiceof leaving multilateral treaties open for signature, atleast for a reasonable period, has considerable ad-vantages. The closing stages of international confer-ences are apt to be hurried. Often the Governmentsat home are not in possession of the final text, whichmay only have been completed at the last moment.For that reason, many of the representatives are notin possession of authority to sign the treaty in itsfinal form. Yet even in those cases where it is possibleto become a party to a treaty by accession, manyGovernments would prefer to do so by signature andratification. It is also desirable to take account of thefact that Governments which are not sure of beingable eventually to ratify (or accede) may neverthelesswish for an opportunity of giving that provisional

34 Article 14 of the Convention on the Pan American Union,adopted at Havana on 18 February 1928, provides as follows:"The present Convention shall be ratified by the signatoryStates and shall remain open for signature and for ratificationby the States represented at the Conference and which have notbeen able to sign it". This Convention, together with sevenfurther Conventions adopted at the Sixth Pan-American Con-ference held at Havana, merely states that the Convention shallremain open for signature and ratification, without specifyingany time limit.

measure of assent to the treaty which signature im-plies. These preoccupations can most easily be metby leaving the treaty open for signature at the seatof the "headquarters" Government or internationalorganization. It can then be signed by any personproducing a valid full-power to do so, such as thediplomatic or permanent representative of the signingState at the seat in question, or by a Foreign Ministeror other authorized person present there, or havinggone specially for the purpose.

(3) Paragraphs 2 and 3 deal with the mysteriesof signature ad referendum and initialling. Signaturead referendum, as indicated in paragraph 2, is not ofcourse a full signature, but it will rank as one ifsubsequently confirmed by the Government on whosebehalf it was made. Initialling, as appears in para-graph 3, is capable of being the equivalent of a fullsignature only if two conditions are fulfilled:

(i) That it is carried out by a person having in-herent authority by reason of his office to bindhis State; and

(ii) That it is done with the intention that it shallbe the equivalent of a full signature.35

In all other cases initialling is an act only of authenti-cation of the text.

The principal differences between initialling andsignature ad referendum therefore are:

(a) Whereas signature ad referendum is basicallyboth an authenticating act (where the text has nototherwise been authenticated already) and a provi-sional signature of the treaty, initialling is and alwaysremains an authenticating act only, which is incapableof being transformed into full signature by mere con-firmation ; and

(b) Whereas confirmation of a signature ad referen-dum has retroactive effect causing the signature adreferendum to rank as a full signature from the dateof its original affixation, a signature subsequent toinitialling has no retroactive effect and the State con-cerned becomes a signatory only from the date of thesubsequent act of signature.

(4) There may also be a certain difference in theoccasions on which these two procedures are employed.Initialling is employed for various purposes. One isto authenticate a text at a certain stage of the nego-tiations, pending further consideration by the Gov-ernments concerned. It may also be employed by arepresentative who has authority to negotiate, but isnot in possession of (and is not at the moment able toobtain) an actual authority to sign.36 Sometimes itmay be resorted to by a representative who, for what-ever reasons, is acting on his own initiative and with-out instructions, but who nevertheless considers thathe should carry out some sort of act in relation to thetext. Signature ad referendum may also be resortedto in some of these cases, but at the present time isprobably employed mainly on actual governmental in-structions in cases where the Government wishes to per-form some act in relation to the text, but is unwillingto be committed to giving it even the provisionalconsent that a full signature would imply.

33 Such cases are infrequent but have occurred. The inten-tion may be inferred from the instrument as a whole or fromthe surrounding circumstances.

36 Today, when a telegraphic authority, pending the arrivalof written full powers, would usually be accepted (see article 4above, and the commentary thereto), the need for recourse toinitialling on this ground ought only to arise infrequently.


ARTICLE 9. LEGAL EFFECTS OF A FULL SIGNATURE

1. Full signature of a treaty, as stated in para-graph 2 of article 6, automatically constitutes an actauthenticating the text of the treaty, if such authenti-cation has not already taken place by another pro-cedure.

2. In cases where the treaty signed is subject toratification or acceptance, or where the signature itselfhas been given subject to subsequent ratification oracceptance, full signature shall not constitute the Stateconcerned a party, whether actual or presumptive, tothe treaty but shall only constitute it a signatory tothe treaty with the following effects:

(a) The signatory State shall be entitled to proceedto the ratification or, as the case may be, acceptanceof the treaty on compliance with any provisions in thetreaty relating to ratification or acceptance.

(b) The signatory State shall be under an obliga-tion to examine the question of the ratification or, asthe case may be, acceptance of the treaty in good faithwith a view to its submission to the competent organsof the State for ratification or acceptance; and if thetreaty itself or the constitution of an internationalorganization within which the treaty was adopted ex-pressly so provides, the signatory State shall be underan obligation to submit the question of the ratificationor, as the case may be, acceptance of the treaty to theconsideration of its competent organs.

(c) The signatory State, during the period beforeit shall have notified to the other States concerned itsdecision in regard to the ratification or acceptance ofthe treaty or, failing any such notification, during areasonable period, shall be under an obligation in goodfaith to refrain from any action calculated to frustratethe objects of the treaty or to impair its eventualperformance.

(d) The signatory State shall have the right, asregards any other State concerned, to insist upon theobservance of the provisions of the treaty regulatingsignature, ratification, acceptance, accession, reserva-tions, deposit of instruments and any other suchmatters.

(e) The signatory State shall also be entitled toexercise any other rights specifically conferred by thetreaty itself or by the present articles upon a signatoryState.

3. (a) In cases where the treaty signed is not sub-ject to ratification and where the signature itself makesno mention of its being conditional upon subsequentratification or acceptance by the State on whose behalfit is affixed to the treaty, full signature shall havethe following effects:

(i) If the treaty is to come into force upon theoccasion of its signature by the negotiatingStates, or if it is already in force or is broughtinto force by the particular signature in ques-tion, the signature shall constitute the Stateconcerned an actual party to the treaty im-mediately.

(ii) If the treaty is to come into force upon afuture date or event, the signature shall con-stitute the State concerned a presumptive partyto the treaty pending its entry into force, andan actual party if and when the treaty comesinto force.

(b) A signatory State which, under the provisionsof sub-paragraph 3 (a) (ii) above, is merely a pre-sumptive party to the treaty, pending the entry intoforce of the treaty:

(i) Shall be under an obligation in good faith torefrain from any action calculated to frustratethe objects of the treaty, provided that, if afterthe lapse of a reasonable time from the date ofsignature the treaty is not yet in force, it shallbe at liberty to notify the other signatory Statesthat it no longer considers itself bound by suchobligation ;

(ii) Shall be entitled to exercise the rights men-tioned in paragraph 2 (d) and (e) of the presentarticle as possessed by a signatory State whosesignature is subject to ratification or acceptance.

Commentary(1) The matters covered by this article were not

dealt with in the Commission's 1959 draft, but theywere the subject of article 5 in Sir H. Lauterpacht'sreport (A/CN.4/63) and articles 28-30 in that ofSir G. Fitzmaurice (A/CN.4/101). It is not easy tostate the legal effects of full signature in a satisfactory,and still less in a simple, manner; for the legal effectsof signature are connected also with the subjects ofauthentication and ratification, while the legal incidentsof a signature which is subject to ratification or accept-ance are by no means free from uncertainty.

(2) In order to underline the difference between thelegal effects of a signature which gives the State's finalconsent to be bound by the treaty and one which isconditional upon a further act of ratification or accept-ance, Sir G. Fitzmaurice's draft made a distinctionbetween the "concluding" and the "operative" effectsof signature. The difficulty about making this distinctionis that it involves erecting the phrase "to conclude atreaty" into a technical term and attributing to it ameaning different from that with which it seems to beused in everyday speech. The phrase "to conclude atreaty", as Sir G. Fitzmaurice himself recognized, isan ambiguous one and, in truth, it seems as often asnot to be used even by lawyers with the opposite mean-ing of reaching a final agreement to be bound by atreaty. Another difficulty is that it may be a little mis-leading to place so much emphasis on the "concluding"effects of a signature which is still subject to ratifica-tion or acceptance, because it is quite clear that thesubsequent ratification or acceptance may introducenew reservations materially changing for the ratifyingor accepting State the terms of the treaty to which thesignature was attached. Accordingly, while retainingthe idea of the distinction between the legal effects ofa signature which requires a further act of ratificationor acceptance and one which does not. the present draftarticle does not explain this distinction in terms of adifference between the "concluding" and "operative"effects of signature.

(3) Paragraph 1 restates, for the sake of complete-ness, the rule that, if the text has not already beenauthenticated in one of the ways mentioned in article 6,paragraph 1, full signature (and signature ad referen-dum) will automatically constitute an authenticationof the text by the signatory State.

(4) Paragraph 2 deals with the cases where thesignature does not constitute a final expression of theState's consent to be bound by the treaty but requiresa further act of ratification or of acceptance to have that

Law of treaties 47

effect. This may happen either because the treaty itselfprovides for signature plus ratification (or acceptance)or because the signature of the particular State is ex-pressed to be subject to ratification (or acceptance).The primary effect of the signature in these cases is toestablish the right of the signatory State to participationin the treaty by subsequently proceeding to ratificationor, as the case may be, acceptance of the treaty; andsub-paragraph 2 (a) records that primary right.

(5) Sub-paragraph 2 (b) follows the opinion ofSir H. Lauterpacht and Sir G. Fitzmaurice that thesignatory State in these cases is under a certain, ifsomewhat intangible, obligation of good faith subse-quently to give consideration to the ratification (oracceptance) of the treaty. The precise extent of thisobligation is not clear. That there is no actual obligationto ratify under modern customary law is certain, andthe rule concerning ratification is so stated in thearticle which follows. Sir H. Lauterpacht consideredthat signature "implies an obligation to be fulfilled ingood faith to submit the instrument to the proper con-stitutional authorities for examination with the viewto ratification or rejection". This formulation, logicaland attractive though it may be, appears to go beyondany obligation that is recognized in State practice. Forthere are many examples of treaties that have beensigned and never submitted afterwards to the consti-tutional organ of the State competent to authorize theratification of treaties, without any suggestion beingmade that it involved a breach of an internationalobligation. Governments, if political or economic diffi-culties present themselves, undoubtedly hold themselvesfree to refrain from submitting the treaty to parliamentor to whatever other body is competent to authorizeratification. No doubt it was for this reason that Sir G.Fitzmaurice felt bound to "state the proposition insomewhat cautious and qualified terms". In fact, theproposition ultimately formulated in article 30 (6) ofhis draft is so qualified by reservations and alternativesthat it is doubtful whether it retains even the shadowof an obligation. The Special Rapporteur recognizes thateven the obligation formulated in the present draft isboth tenuous and imperfect; but imperfect obligationsof good faith are not uncommon in international law,and treaty practice, as it is today, would scarcely seemto justify the Commission in stating the obligation inany higher terms. The second provision of sub-paragraph (b) is intended to cover cases where eitherthe treaty itself or the constitution of an internationalorganization in which the treaty was drawn up specifiesan actual obligation to submit the treaty to the con-sideration of the competent authorities for ratification(or acceptance). Such an obligation is, for example,imposed by the Constitution of the International LabourOrganisation.

(6) Sub-paragraph (c) again follows the line takenby Sir H. Lauterpacht and Sir G. Fitzmaurice, whogave their support to the proposition in the HarvardResearch Draft37 that "It would seem that one signatoryState has the right to assume that the other will regardthe signature as having been seriously given, that ordi-narily it will proceed to ratification, and that in themeantime it will not adopt a policy which would renderratification useless or which would place obstacles inthe way of the execution of the provisions of the treaty,once ratification has been given". Although, as has been

said previously, this proposition seems to state thequestion of "proceeding to ratification" more stronglythan State practice warrants, its recognition of a gen-eral obligation of good faith to refrain during at leastsome period from acts calculated to frustrate the ob-jects of the treaty appears to be both generally acceptedby writers who have examined the point and supportedby decisions of international tribunals. The PermanentCourt itself, as Sir H. Lauterpacht pointed out, seemsto have recognized in the Case of certain German in-terests in Polish Upper Silesia38 that a signatory State'smisuse of its rights in the interval before ratificationmay amount to a breach of the treaty; and see alsoMcNair, Lazv of Treaties (1961), pp. 199-205; Fau-chille, Traite de droit international public (1926),vol. 1, part III , p. 320; Bin Cheng, General Prin-ciples of Law, pp. 109-111; Megalidis v. Turkey,1927-8 Annual Digest of International Law Cases,Case No. 272. The failure to specify the duration ofthe obligation may appear to introduce an element ofuncertainty into the rule, but what is the appropriateperiod may well vary with the circumstances of thetreaty, and the Special Rapporteur hesitates to suggesta specific period of years.

(7) Signature of a treaty, it appears to be accepted,confers a certain limited status upon the signatoryState with respect to the treaty, though the precisenature of this status may not be easy to define.39 Asignatory State has a certain interest, presumably ofa contractual kind, in the execution of the proceduralprovisions of the treaty and, at any rate until the treatyis in force, is entitled to a voice in any decision inregard to the execution of these provisions. For ex-ample, it has a right, within certain limits, to a voicein opening the treaty to signature or accession byadditional States, and a right to object to reservationsoutside the terms of the treaty made by other signatories.In its Advisory Opinion on Reservations to the Conven-tion on the Prevention and Punishment of the Crimeof Genocide*0 the Court itself recognized that signature"establishes a provisional status" in favour of thesignatory State which entitles it to formulate objectionsof a provisional kind to reservations made by othersignatories. Sub-paragraph (d) seeks to formulate therights of a signatory in regard to what Lord McNairterms the "mechanics" of the treaty. And sub-paragraph (e) notices the possibility that the treatyitself may contain specific provisions in regard to therights of signatories, whilst the present articles recog-nize that a signatory has a certain right to object toreservations and certain other rights, although thesemay sometimes also be enjoyed by States which partici-pated in the negotiations but did not sign the treaty.

(8) Paragraph 3 deals with the case of a signaturewhich is finally binding. Sub-paragraph (a) makes theobvious point that the signatory State becomes anactual party to the treaty, if the treaty is either alreadyin force or actually brought into force by the signature,but in other cases only makes it a "presumptive" partyuntil the date when the treaty enters into force.

(9) A signatory State which is an actual party is,of course, fully subject to all the rights and obligationsof the treaty; but it is thought that this is a point which"goes without saying" and need not be mentioned in thetext. The status of a signatory State, however, that is,

37 Harvard Law School: Research in International^ Lazv, III,Law of Treaties in American Journal of International Law,vol. 29 (1935), Supplement, comment to article 9.

3 8 Series A, No. 7, p. 30.s» See McNair, Law of Treaties, 1961, pp. 199-205.401.C.J. Reports, 1951.


of a "presumptive" party, is less clear and raises prob-lems analogous to those of a signatory whose signatureis subject to ratification. Accordingly, the obligationsand rights of a "presumptive" party are set out insub-paragraph 3 (b) in a manner parallel to those ofa signatory whose signature is subject to ratification.

ARTICLE 10. TREATIES SUBJECT TO RATIFICATION

1. Ratification, as defined in article 1, is necessaryin order to render definitive a State's consent to bebound by a treaty in cases where the treaty itself ex-pressly contemplates that it shall be subject to ratifica-tion by the signatory States.

2. (a) In cases where the treaty contains no provi-sions in regard to its ratification, the treaty shall notrequire ratification by the signatory States:

(i) If the treaty is one signed by the Heads ofthe Contracting States;

(ii) Tf the treaty itself provides that it shall comeinto force upon signature or upon a particluardate or event;

(iii) If an intention to dispense with ratificationis to be inferred from the fact that the treatymodifies, adds to or annuls a prior treatywhich was not itself made subject to ratifica-tion, or from other circumstances, showing thatthe signatures were intended, without ratifica-tion, to constitute the final expression of theState's consent to be bound by the treaty;

(iv) If the treaty is in the form of an exchangeof notes, exchange of letters, agreed minute,memorandum of agreement, agreed arrange-ment, inter-governmental agreement or othersuch less formal treaty.

(b) However, if in cases falling under the precedingprovisions of this paragraph the representative of aparticular State has expressly signed the treaty "subjectto ratification", or if the credentials, full-powers orother instrument issued to him and duly exhibited byhim to the representative or representatives of theother contracting State or States expressly limit theruthoritv conferred upon him to signing "subject toratification", then ratification shall be necessary in thecase of that particular State.

3. (a) In all other cases where the treaty containsno provisions in regard to its ratification, the treatyshall require ratification by the signatory States inorder to render definitive the consent of each Stateto be bound by the treaty.

(b) However, if the credentials, full-powers or otherinstrument issued to the representative of a particularState authorize him by his signature alone, withoutratification, to express finally the consent of his Stateto be bound by the treaty, ratification shall not benecessary in the case of that particular State.

4. (a) Whenever a State's signature of a treatyis subject to ratification in accordance with the provi-sions of the preceding paragraphs of this article, theratification of the treaty shall be at the discretion of theState concerned, unless it has expressly undertaken toratify the treaty.

(b) The fact that the full-powers of the representa-tive signing or acceding to a treaty are in a form ap-parently implying a promise or an intention to proceedto ratification shall not constitute an undertaking toratify a treaty which is subject to ratification.

Commentary

(1) This article attempts to set out the rules deter-mining the cases in which ratification is necessary inorder to complete a signature and to render it a final ex-pression of the State's consent to be bound by the treaty.The word "ratification", as the definition of it in ar-ticle 1 indicates, is used here and throughout thesedraft articles exclusively in its international sense ofthe formal act whereby a State confirms its previoussignature of a treaty and by that act finally consentsto be bound by the treaty. Parliamentary "ratification"or "approval" of a treaty under municipal law is not,of course, unconnected with "ratification" in interna-tional law, since without it the executives of somecountries may not be clothed in certain cases withthe necessary constitutional authority to perform theinternational act of ratification. A question may in thisway arise as to whether a treaty, ratified by the execu-tive on the international plane but without the nec-essary authority of a prior parliamentary ratification,should or should not be regarded as valid in interna-tional law—a controversial question which will haveto be considered in due course by the Commission. Butit remains true that the international and parliamentaryratifications of a treaty are entirely separate proceduralacts carried out on two different planes.

(2) The modern institution of ratification in interna-tional law developed in the course of the nineteenthcentury under the influence of France and the UnitedStates. Earlier, ratification had been an essentiallyformal and limited act by which, after a treaty had beendrawn up, a Sovereign confirmed, or finally verified,the full-powers previously issued to his representativeto negotiate the treaty. It was then not an approval ofthe treaty itself but a confirmation that the representa-tive had been invested with authority to negotiate itand, that being so, there was an obligation upon theSovereign to ratify his representative's full-powers, ifthese had been in order. France and the United States,however, used ratification as the means of submittingthe treaty-making power of the executive to parlia-mentary control, and ultimately the doctrine of ratifica-tion underwent a fundamental change. It became estab-lished that (a) the act of ratification confirms therepresentative's signature of the treaty, (b) the treatyitself is subject to subsequent ratification by the Statebefore it becomes binding, and (c) the act of ratifica-tion is at the discretion of the State, which is notobliged to ratify its representative's signature, evenalthough he had full-powers to negotiate it. Further-more, this development in the institution of ratificationtook place at a time when the great majority of inter-national agreements were formal treaties. Not unnatu-rally, therefore, it came to be the opinion that thegeneral rule is that ratification is necessary to rendera treaty binding, unless it is a treaty concluded betweenHeads of State, or unless it has been agreed that thetreaty shall be binding without ratification (see, for ex-ample, Hall, International Law, §110; Crandall, Trea-ties, Their Making and Enforcement, § 3 ; Fauchille,Traite de droit international public, vol. 1, part III ,p. 317; Oppenheim, International Law, vol. I, § 512;Harvard Research Draft, A.J.I.L., vol. 29, SpecialSupplement, p. 756).

(3) Meanwhile, however, the expansion of inter-course between States, especially in economic andtechnical fields, led to the ever-increasing use of lessformal types of international agreements, amongstwhich were exchanges of notes and inter-governmental

Law of treaties 49

agreements; and these agreements were usually intendedby the parties to become binding by signature alone.Indeed, sometimes recourse has been had to these lessformal types of agreement for the very purpose ofavoiding the delay involved in complying with a con-stitutional requirement for obtaining parliamentary ap-proval for the international ratification of a "treaty".On the other hand, an exchange of notes or otherinformal agreement, though employed for its ease andconvenience, has sometimes expressly been made subjectto ratification because of political considerations in oneor the other of the contracting States. The general resultof this development has been to obscure in interna-tional law both the scope of the term "treaty" and thelaw in regard to ratification. Yet another complicatingfactor has been the emergence of new methods ofauthenticating multilateral treaties without the signatureof individual States, and of becoming a party to suchtreaties by the process only of accession or acceptance.

(4) Faced with these developments in State prac-tice. Professor Rrierly in his first report went so faras deliberately to omit all reference to ratification inhis draft articles (A/CN.4/23. articles 6, 7 and 8 andcommentary). The Commission, however, considered—and rightly so—that this solution did not do justiceto the role still played by ratification in the conclusionof treaties, and was unacceptable. Professor Brierly'ssecond report (A/CN.4/43) accordingly introduced adraft article on ratification based on article 7 of theHarvard Research Draft, and ultimately the Commis-sion itself tentatively adopted his article 4 in the follow-ing terms:

"A State is not deemed to have undertaken afinal obligation under a treaty until it has ratifiedthat treaty, provided, however, that it is deemed tohave undertaken a final obligation by its signatureof the treaty:

"(a) If the treaty so provides; or

"(b) Tf the treaty provides that it shall be ratifiedbut that it shall come into force before ratification; or

"(c) If the form of the treaty or the attendantcircumstances indicate an intention to dispense withratification."(5) Sir H. Lauterpacht in his first report (A/

CN.4/63) put forward a revised and amplified versionof the article tentatively adopted by the Commissionin 1951, the theory of which, of course, was that, inthe absence of some contrary indication, a treaty is notbinding without ratification. This version, which herepeated in his second report (A/CN.4/87, article 6) ,read as follows:

"2. In the absence of ratification a treaty is notbinding upon a contracting party unless:

" (a) The treaty in effect provides otherwise bylaying down, without reference to ratification, thatit shall enter into force upon signature or upon anyother date or upon a specified event other thanratification;

"(b) The treaty, while providing that it shall beratified, provides also that it shall come into forceprior to ratification;

"(c) The treaty is in the form of an exchange ofnotes or an agreement between government depart-ments ;

"(d) The attendant circumstances or the practiceof the contracting parties concerned indicate the in-

tention to assume a binding obligation without thenecessity of ratification."

At the same time, however, Sir H. Lauterpacht putforward for consideration an alternative draft, thetheory of which was the exact opposite (A/CN.4/63,article 6, alternative paragraph 2) :

"Confirmation of the treaty by way of ratificationis required only when the treaty so provides."

In his second report (A/CN.4/87) the following yearhe qualified this alternative draft to the extent ofadding:

"However, in the absence of express provisionsto the contrary, ratification is in any case necessarywith regard to treaties which, having regard to theirsubject matter, require parliamentary approval orauthorisation of ratification in accordance with theconstitutional law or practice of the countries con-cerned."In his commentaries Sir H. Lauterpacht, explaining

why he had submitted two apparently contradictoryversions of the rule for determining when treaties re-quire ratification, said the controversy as to which ofthe two versions is right is to a large extent theoretical.The more formal types of instrument include, almostwithout exception, express provisions on the subjectof ratification, and occasionally this is so even in thecase of exchanges of notes and inter-departmental agree-ments. Moreover, whether they are of a formal or ofan informal type, treaties normally either provide thatthe instrument shall be ratified or, by laying down thatit shall enter into force upon signature or upon a spe-cified date or event, dispense with ratification. Totalsilence on the subject is exceptional, and the numberof cases that remain to be covered by a general ruleis very small. Accordingly, the controversy on the sub-ject is to a large extent theoretical. This does not meanthat the Commission is absolved from the task of for-mulating a rule for the small residuum of cases inwhich the parties have left the question open. For itis one of the purposes of codification to provide forsuch cases where the question is not regulated by theparties, and only if a clear presumptive rule is laiddown will the parties themselves know in future whetheror not an express provision is necessary to give effectto their intentions. But, if the first version of the rule,which makes ratification necessary unless it is ex-pressly or impliedly excluded, is adopted, the qualifyingexceptions which have to be inserted in order to bring itinto accord with modern practice are so numerous asalmost to bridge the gap between that version and theother one under which ratification is unnecessar}', unlessexpressly stipulated for by the contracting States. Con-sequently, the difference in the practical effect ofchoosing one version of the rule rather than the otherwould not be substantial.

Sir H. Lauterpacht himself considered that there is a"slight preponderance of considerations in favour ofthe requirement of ratification unless dispensed with ex-pressly or by implication". At the same time he feltit necessary to emphasize that "the most recent practiceshows an increasing number of treaties which comeinto force without ratification". Referring to statisticalinformation contained in a then recent article,41 hemade the following comparisons between the treatiesregistered with the League of Nations and those reg-istered with the United Nations (1946-51) :

41 Hans Blix, "The Requirement of Ratification", BritishYear Book of International Law, 30 (1953), p. 352.


"(a) While 50 per cent of those registered withthe League entered into force by ratification, thefigure for the United Nations is only 25 per cent;

"(b) While 40 per cent of those registered withthe League were described as 'treaties' or 'conven-tions' (instruments normally brought into force byratification), the figure for the United Nations isonly 15 per cent;42

"(c) While only about 30 per cent of those regis-tered under the League were in the form of agree-ments (instruments not normally brought into forceby ratification), the figure for the United Nations isas much as 45 per cent;43

"(d) While a large number of instruments arenow being brought into force, not by ratification,but by exchange of 'notes of approval', this wasnot formerly the case."

He considered it to be a legitimate deduction fromthese statistics that Governments now attach impor-tance to treaties—however designated—entering intoforce without ratification in an increasing number ofcases. This deduction did not, however, lead him toalter his view as to the rule to be adopted by theCommission. The increased tendency towards dispens-ing with ratification did not necessarily, he thought,indicate a change in the views of Governments as tothe presumptive rule in regard to the need for ratifi-cation. Moreover, the general importance of the Stateinterests regulated by treaty requires that the pre-sumptive—residuary—rule should be based on ratifica-tion being the normal requirement. For the samereason he urged that, even if the other rule—with apresumption against the need for ratification—wereto be adopted, it should be qualified in the way pro-posed in his new alternative draft by adding an ex-ception making ratification necessary in the case of"treaties which, having regard to their subject mat-ter, require parliamentary approval or authorizationof ratification in accordance with the constitutional lawor practice of the countries concerned".

(6) Sir G. Fitzmaurice, in his first report (A/CN.4/101, article 32 and commentary), also dealtwith this matter, accepting much of Sir H. Lauter-pacht's exposition of the problem but differing as tothe rule to be adopted as the residuary rule. Herecalled that as early as 1934 he had expressed theview that the older doctrine, which presumes ratifica-tion to be necessary unless dispensed with, did notcorrespond with modern practice and said that thestatistical information furnished by Sir H. Lauter-pacht showed that that doctrine was even less inaccordance with the practice of today. The basic rulewhich he proposed, therefore, was:

"Treaties are subject to ratification in all thosecases where they so specify; otherwise, in general,they are not. There is no principle or rule of lawaccording to which treaties are tacitly assumed tobe subject to ratification, whether this is providedfor or not."

His draft then went on to emphasize that, if by rea-son of the particular subject matter of the treaty orthe constitutional requirements of the State concerned

42 Thus of the "treaties" in the League of Nations TreatySeries only one was not ratified. All "treaties" in the UnitedNations Treaty Series were ratified.

43 In the League of Nations Treaty Series 40 per cent of"agreements" were ratified. In the United Nations TreatySeries 15 per cent of "agreements" were ratified.

it was desired that the treaty should be conditionalupon subsequent ratification, the onus would be onthe signatory States to insert the necessary provisionfor that purpose. On the other hand, it recognizedthat an express provision would not be necessaryin the treaty itself, if instead the authority of a par-ticular State's representative negotiating the treaty hadbeen expressly limited to a signature subject to ratifi-cation and this fact had been formally communicatedto the other prospective signatories, without encounter-ing any obj ection; and similarly, if the signature itselfhad been expressly given "subject to ratification" andnot met with objection from the other signatories.In either of these cases the particular State concernedwas to have the right subsequently to deposit aninstrument of ratification and, on so doing, become aparty to the treaty.

Sir G. Fitzmaurice considered the traditional doc-trine to have been "decisively refuted by the fact thatStates have never been content to rely upon it" inthat they always provide expressly for ratificationwhen they want it but are quite content to rely onsilence precisely in those cases where they do notwant it. If there were a basic rule requiring ratifica-tion, one would expect to find treaties expressly dis-pensing with the need for ratification, but these areextremely rare. On the other hand, there are in-numerable cases of treaties providing expressly forratification. Admittedly, there are mechanical reasonsfor making special mention of ratification in order toindicate how, where and when it is to be effected.But the very fact that such provisions are necessaryfor effecting ratification makes it all the more difficultto presume that, in cases of silence upon the point,the ratification of the treaty was intended. Moreover,since in such cases there will ex hypothesi be noprovisions concerning deposit and exchange of ratifica-tions, practical difficulties will arise both as to howratification is to be effected and as to the date forthe treaty to enter into force.

These considerations, coupled with the increasinguse in modern practice of instruments coming intoforce upon signature and the decreasing proportionof treaties made subject to ratification, plus the factthat the necessity for ratification is largely a domesticmatter, were thought by Sir G. Fitzmaurice to leadto the conclusion that the residuary rule must be that,in the absence of express provision for ratification,it is to be presumed not to have been intended andto be unnecessary. This inference is, in his view,entirely legitimate because the parties are at perfectliberty to require it, or to insist on a form of treatyin which it would be natural to insert a provisionfor ratification. It must be assumed that Chancelleriesand Foreign Ministries are all well versed in treatylaw and practice and that, if they allow their repre-sentatives to sign a treaty without provision for ratifi-cation, it must be because they do not intend it tobe necessary. Today, with modern communications,Governments are able to be in constant touch withtheir representatives negotiating a treaty.

(7) There is considerable force in the points madeby Sir G. Fitzmaurice and, if it were possible toadopt as the residuary rule the principle that ratifica-tion is not necessary unless expressly or impliedlycontemplated in the treaty, it would have the ad-vantage of simplicity. The Special Rapporteur feltbound, however, to take account also of the opinion

Law of treaties 51

of Sir H. Lauterpacht, expressed after an exhaustivestudy of the problem, that (i) there is still a slightpreponderance of considerations in favour of the op-posite rule and (ii) that if a rule excluding the needfor ratification were to be adopted, it would still benecessary to qualify it by laying down that that ruledoes not apply to "treaties which, having regard totheir subject matter, require parliamentary approval orauthorization of ratification in accordance with theconstitutional law or practice of the countries con-cerned". The introduction of any such qualificationinto the rule appears to the Special Rapporteur to beopen to serious objection. Not only would the rulelose its simplicity but the qualification, by reason ofits imprecise character, would render the scope of therule uncertain and perhaps even dependent upon thesubjective determination of the interested State as tothe requirements of its constitution. Consequently, ifthe rule favoured by Sir G. Fitzmaurice has to bequalified in the way advocated by Sir H. Lauterpachtin order to protect the position of States with strictconstitutional requirements concerning the ratificationof treaties, it is doubtful whether the rule is acceptableat all. It is true that Sir G. Fitzmaurice did not thinkit necessary to qualify the rule in this way. But againstthis must be set the fact that Lord McNair44 takesthe same position as Sir H. Lauterpacht that thepreferable residuary rule is that ratification is requiredunless the need for it is excluded either by the termsof the treaty or by the nature or form of the treatyor the circumstance of its negotiation. It may alsobe suspected that States with strict constitutionalrequirements in regard to ratification may not readilybe brought to accept the residuary rule favoured bySir G. Fitzmaurice.

(8) The truth may be that the residuary rule isdifferent for "formal" and "informal" types of treaty,and that there are really two rules. Exchange of notesand other less formal types of treaty having beenintroduced in order to avoid the formalities of theclassical types of treaty, it is not surprising that thepresumption is that they are not subject to ratificationunless the treaty provides otherwise. On the otherhand, the classical forms of "treaty" having previouslybeen considered to be subject to ratification and stillbeing more commonly used when important mattersfalling under domestic constitutional requirements arein issue, it would not be surprising that States shouldstill presume them to be subject to ratification, unlessthe treaty itself dispenses with ratification. This isthe position reflected in the drafts of the Commissionin 1951 and of Sir H. Lauterpacht in 1953-4 and itseems to be the view acted upon by the majority ofStates in their treaty-practice. The present article hastherefore been prepared on the basis that the pre-sumption is against the need for ratification in thecase of less formal types of treaty (paragraph 2 (a)(iv)) and in favour of it in other cases (paragraph 3).The main difficulty, owing to the diversity of treatyforms and nomenclature, is to draft a satisfactoryformulation of the types of treaty where the presump-tion is against ratification. If this can be achieved, theCommission may feel that the solution adopted in thepresent article is preferable to the one suggested bySir G. Fitzmaurice. Under this solution it is com-paratively easy to safeguard the position of a State,like the United Kingdom, which regards its signature

as binding unless expressly made subject to ratifica-tion. Under Sir G. Fitzmaurice's rule, however attrac-tive its simplicity may be, it is not so easy to safe-guard satisfactorily the position of States with strictconstitutional requirements in regard to the ratifica-tion of "treaties".

(9) Paragraph 1 of the draft does not appear torequire comment. Apart from the possible case of aso-called "accession" made subject to ratification,which is dealt with in article 14, ratification alwayspresupposes a previous signature of the treaty and istherefore a process normally confined to signatoryStates.

(10) Paragraph 2 (a) sets out the cases in which,when the treaty is silent upon the question of ratifica-tion, ratification is not necessary to render the sig-nature a definitive expression of consent to be bound.Sub-paragraphs (i)-(iii) comprise cases where rati-fication is not required, whether the treaty is of aformal or informal type. The first category of case,Heads of State treaties, is an old, established, ex-ception to the requirement of ratification,45 and al-though signature by Heads of States is now com-paratively rare, it may be desirable to mention it.

The second category is that of cases where thetreaty, by specifying that the treaty shall come intoforce upon signature or upon a given date or event,without saying a word about ratification, impliedlydispenses with ratification. As Sir H. Lauterpachtpointed out in his first report (A/CN.4/63, footnote39), a very large proportion of modern bilateraltreaties fall within this category; in consequence it isonly in a comparatively few cases that a bilateraltreaty does not specify the way in which it is tocome into force and thereby fails to dispense withthe need for ratification.

The third category comprises cases where it is tobe inferred from the circumstances of the treaty thatratification is not required, and a typical case is thetreaty which is an instrument ancillary to anothertreaty which was not itself subject to ratification. Itis not possible to define exhaustively the circuiTistanceswhich would suffice to bring a treaty within this cate-gory, but another example may be the case where thesubject matter of the treaty is such as to require it tocome into force immediately, if the treaty is to serveany purpose.

The fourth category is limited to less solemn formsof treaty and lays down as the basic residuary rulethe presumption that, if the treaty makes no mentionof ratification, the treaty is not subject to ratification.That this is the general practice with regard to ex-change of notes seems to be entirely clear from theresults of a study of the League of Nations andUnited Nations Treaty Series made by a Swedishwriter,46 published in 1953, in which he said :

"Exchanges of notes frequently lack provisionsconcerning the mode of entry into force; in suchcases they are not as a rule ratified. Of the Leaguetreaties, some seventy-five such exchanges of noteswere found, and none of them was ratified. Of theUnited Nations treaties, some 125 such exchanges

44 Law of Treaties, 1961, pp. 133-4.

4 5 Fitzmaurice, "Do Treaties Need Ratification ?", BritishYear Book of International Law, 1934, p. 119.

4 6 Hans Blix, "The Requirement of Ratification", BritishYear Book of International Lazv, 1953, p. 366.


of notes were found, and only one of them wasratified."

And the general practice appears to be much the samein regard to other treaties of such less formal kinds;if ratification is required, the treaty is expressed tobe subject to ratification.47

Paragraph 2 (b) provides for the possibility thatin cases where, under the provisions of paragraph 2(a), the treaty is not in principle subject to ratifica-tion the representative of a particular State may never-theless be required by his own Government, or mayhimself decide, to make his signature subject toratification.

(11) Paragraph 3 (a), for reasons which havealready been explained in paragraphs 4-9 above, laysdown as the residuary rule for treaties not of a lessformal type—treaties stricto sensu—that ratification ispresumed to be required where the treaty is silentupon the question of ratification.

Paragraph 3 (&) seeks to take account of the posi-tion of States like the United Kingdom, whose con-stitutional practice it is to authorize their representa-tive to bind the State by signature alone unlessinstructed to make the signature subject to ratification.

(12) Paragraph 4 (a) states what is today an un-disputed rule that, where a treaty is subject to ratifi-cation, it is at the discretion of the State concernedwhether to ratify the treaty or not. Sir H. Lauterpacht,in his first report (A/CN.4/63, commentary on ar-ticle 5) gave reasons for thinking that in many casesStates may be under a strong moral obligation toratify a treaty that they have signed. But under themodern law that obligation can never be a legal oneunless the treaty itself imposes an obligation on thesignatory State to ratify the treaty, as has sometimeshappened in the case of peace treaties; and then, asSir G. Fitzmaurice pointed out, the truth is that thetreaty is really binding upon signature and the sub-sequent ratification is a political rather than legal act(A/CN.4/101, commentary on articles 32 and 42).

Paragraph 4 (b) is intended to cover a point towhich Sir G. Fitzmaurice drew attention (ibid., com-mentary on article 32). For historical and traditionalreasons many common forms of full-powers imply, orseem to imply, a promise that ratification will beforthcoming in due course, but these forms are emptyrelics from the past when ratification performed aquite different function, and today no legal obligationto ratify can be spelt out from them.

ARTICLE 11. THE PROCEDURE OF RATIFICATION

1. (a) Ratification shall be carried out by meansof a written instrument, executed by an authoritycompetent under the laws of the ratifying State toexecute instruments of ratification, and declaring thatthe State confirms and ratifies its consent to be boundby the treaty to which its signature is already affixed.

(b) The form of instruments of ratification shall begoverned by the internal laws and usages of theratifying State.

2. (a) Unless the treaty itself provides that con-tracting States may elect to become bound by part orparts only of the treaty, the instrument of ratificationmust extend to the whole treaty.

47 See generally the article by Hans Blix mentioned in thepreceding footnote.

(b) An instrument of ratification, if it is to qualifyas an effective act of ratification, must contain adefinitive expression of the State's consent to be boundby the treaty; it may not be made conditional uponthe occurrence of a future event, such as the receiptor deposit of the ratifications or accessions of otherStates. Any conditions embodied in an instrument ofratification shall be treated as equivalent to reserva-tions and their validity and effect shall be determinedby the principles governing the validity and effect ofreservations.

3. Instruments of ratification become operative bybeing communicated to the other signatory States orto the depositary of the instruments relating to thetreaty. If the treaty itself lays down the procedure bywhich they are to be communicated, instruments ofratification become operative on compliance with thatprocedure. If no procedure has been specified in thetreaty or otherwise laid down by the signatory States,instruments of ratification shall become operative:

(a) In the case of a bilateral treaty, upon the formalcommunication of the instrument of ratification tothe other Contracting Party, and normally by meansof an exchange of the instruments duly certified bythe representatives of the States carrying out theexchange;

(b) In the case of a plurilateral or multilateraltreaty adopted at an international conference convenedby the States concerned, upon deposit of the instru-ment of ratification with the Government of the Statein which the treaty was signed;

(c) In the case of a multilateral treaty adopted in aninternational organization, upon deposit of the instru-ment of ratification with the secretariat of the organi-zation in question.

4. When an instrument of ratification is depositedwith a Government or with the secretariat of an interna-tional organization under sub-paragraph (b) or (c)of the preceding paragraph, the ratifying State shallhave the right to an acknowledgement of the depositof its instrument of ratification; and the other signatoryStates shall at the same time have the right to be notifiedpromptly both of the fact of such deposit and the termsof the instrument of ratification.

Commentary(1) The tentative draft articles adopted by the Com-

mission _ in 1951 did not deal with the modalities ofratification, and it was not until Sir G. Fitzmaurice'sfirst report that the subject was examined in anydetail (A/CN.4/101, article 31 and commentary). Thepresent article, which takes account of his draft article31 and commentary in that report, is more elaborateand attempts, in the light of State practice and of thepractice of depositaries of treaties, to formulate rulesconcerning the modalities of ratification to cover thevarious situations in which, owing to the silence ofthe treaty, the need for such rules may arise.

(2) Paragraphs 1 and 2 concern the preparationof the international instrument by the communicationof which the State is to effect the international actof ratifying the treaty. Paragraph 1 (a) expresses theprinciple that ratification is a solemn act which mustbe carried out by means of a formal written instru-ment unambiguously declaring the will of the Stateto ratify the treaty and executed by an authority com-petent under its laws to do so. Although it is necessary,

Law of treaties 53

as Sir G. Fitzmaurice emphasizes, to distinguish clearlybetween ratification as an internal procedure and asan act operating in the relations between States, itremains true that the actual form in which an interna-tional act of ratification is drawn up is determined bythe internal laws and usages of each State. It is thisprinciple which paragraph 1 (6) declares.

(3) Paragraph 2 (a) follows necessarily from thefact that what a State is entitled to ratify is its previoussignature of the text of the treaty as a whole. Accord-ingly, although it may be admissible to attach reserva-tions to the ratification of a treaty, it is not admissibleto select parts only of the treaty for ratification.Occasionally, however, treaties are found which ex-pressly authorize States to ratify a part or parts onlyof the treaty or to exclude certain parts, and then, ofcourse, partial ratification is admissible. The rule herestated seems to be generally accepted, and is endorsedin the Summary of the Practice of the Secretary-General as Depositary of Multilateral Agreements,p. 24. But it is possible to imagine cases where theline between partial ratification and ratification subjectto a reservation might appear to be more one of formthan of substance. Paragraph 2 (b) carries furtherand makes more specific the principle expressed inparagraph 1 (a), that the instrument of ratificationmust unambiguously declare the State's consent tobe bound by the treaty. The expression of consentmust be definitive and may not be made subject toa condition precedent, although it may be made subjectto reservations.

(4) Paragraph 3 concerns the execution of the actof ratification by its delivery—its communication—tothe other signatory States. Normally, the procedurefor accomplishing this is laid down in the treaty itselfand paragraph 3 recognizes that fact. It goes on, how-ever, to make provision for any cases where the treatyis silent as to the procedure and specifies for such casesthe procedures most commonly found in the relevanttreaty-clauses in modern practice.

(5) Paragraph 4 declares the right of the ratifyingState to an acknowledgement of the deposit of theinstrument of ratification and the right of other signa-tories to be notified promptly of the ratification.

ARTICLE 12. LEGAL EFFECTS OF RATIFICATION

1. Ratification constitutes the ratifying State an ac-tual Party to the treaty immediately:

(a) If the treaty is already in force when the ratifica-tion takes place, or

(b) If the ratification itself operates to bring thetreaty into force.

2. In other cases ratification constitutes the ratifyingState:

(a)A presumptive Party to the treaty, pending itsentry into force; and

(b) An actual Party to the treaty, if and when itcomes into force.

3. Pending the entry into force of a treaty and pro-vided always that its entry into force is not unreason-ably delayed, a ratifying State, although not bound bythe treaty itself, is subject under general internationallaw:

(a) To an obligation not to withdraw the ratification;

(b) To refrain from any action calculated to frus-trate the objects of the treaty or to impede its eventualperformance.

4. Unless the treaty provides otherwise, ratificationshall not have any retrocative effects. In particular, theratifying State's consent to be bound by the treaty shalloperate only from the date of ratification and shall notbe held to operate from the date of the signature whichthe ratification confirms.

Commentary(1) This article embodies the substance of the prin-

ciples stated in article 33 of Sir G. Fitzmaurice's draft.Paragraphs 1 and 2 deal with the effects of ratificationin making the ratifying State a party to the treaty andto a large extent speak for themselves. Paragraphs1 (b) and 2 (b) have in mind the particular but fre-quent case where the treaty provides that it shall comeinto force after the deposit of a specified number ofratifications.

(2) Paragraph 3 sets out the position of a Statewhich has ratified but is not yet a party to the treatybecause the treaty will not enter into force untilfurther States have either ratified, acceded to, or ac-cepted the treaty. Paragraph 3 (a) deals with a furtheraspect of the definitive character of ratification which,once duly effected, may not be withdrawn. Paragraph3 (b) repeats, for a State which has ratiiied, theobligation of good faith which also attaches in certainmeasure to a signatory under article 9, paragraph 2 (c),above. Just as a signature conditional upon ratification,being an inchoate act of participation in the treaty,involves a certain obligation to refrain from actioncalculated to frustrate its objects and execution, soalso—and a fortiori—does this obligation attach toratification by which the State becomes a presumptiveparty to the treaty.

(3) Paragraph 4 declares what is believed now tobe the undisputed principle that, on ratification, therights and obligations of the treaty become applicableto the ratifying State only as from the date of ratifica-tion, not as from that of signature. The ratification doesnot operate retrospectively to make the signature abinding act of consent on the date when it was affixedto the treaty. Formerly, when ratification was regardedas obligatory and a mere formality confirmatory of theauthority to sign, it was generally held to operateretrospectively and to make the treaty effective as fromsignature. This view continued to be echoed by writersand by some municipal courts, even after the institutionof ratification had undergone the fundamental changewhich has already been described in the commentary toarticle 10 above (see Harvard Research Draft, pp. 799-812). But the theory of the retroactivity of ratificationhas long since been rejected in State practice; the Euro-pean Commission of Human Rights, for example, hasconsistently held that the rights and obligations of theEuropean Convention of Human Rights become ap-plicable with respect to each individual signatory Stateonly as from the date of the deposit of its instrumentof ratification (see Year Book of the European Commis-sion and Court, vol. 1, pp. 137-49 and vol. 2, pp. 215,376, 382, etc.).

ARTICLE 13. PARTICIPATION IN A TREATY BY ACCESSION

1. (a) A State has the right to become a party to atreaty by accession, as defined in article 1, where the


treaty itself or an instrument related to the treaty ex-pressly provides that the treaty shall be open to acces-sion either generally or by particular States or categoriesof States of which the acceding State is one.

(b) A multilateral treaty, unless it expressly pro-vides otherwise, shall be deemed to extend the right ofaccession to any State that was invited to participate inthe negotiations or to attend the conference at whichthe treaty was drawn up, but failed to qualify itself tobecome a party to the treaty by any of the proceduresspecifically established in the treaty.

2. Unless the treaty itself otherwise provides, a Statenot possessing the right to accede to the treaty underthe provisions of the preceding paragraph may never-theless acquire the right to accede to a treaty:

(a) In the case of a bilateral treaty, by the subse-quent agreement of the two States concerned;

(b) In the case of a plurilateral treaty,(i) Where the treaty is not yet in force, or where

the treaty is already in force but four years havenot yet elapsed since the adoption of its text,with the subsequent consent of all the negotiatingStates, or

(ii) Where the treaty is already in force and fouryears have elapsed since the adoption of its text,with the subsequent consent of all the parties to

the treaty;(c) In the case of a multilateral treaty drawn up

at an international conference convened by the Statesconcerned,

(i) Where the treaty is not yet in force or where thetreaty is already in force but four years have notyet elapsed since the adoption of its text, withthe subsequent consent of two-thirds of the ne-gotiating States, or

(ii) Where the treaty is already in force and fouryears have elapsed since the adoption of its text,with the subsequent consent of two-thirds of theparties to the treaty;

(d) In the case of a multilateral treaty either drawnup in an international organization or at an internationalconference convened by an international organization,by a decision of the competent organ of the organizationin question, adopted in accordance with the applicablevoting rule of such organ.

3. A State desiring to accede to a multilateral treatyunder sub-paragraphs (c) and (d) of the precedingparagraph shall transmit a written request to that effectto the depositary of the treaty in question, whose dutyit shall be:

(a) In the case of a treaty drawn up at an inter-national conference convened by the States concerned,to communicate the request to the States designatedin paragraph 2 (c) of this article as States whoseconsent or objection is material for determining theadmission of additional States to participation in thetreaty ;

(b) In the case of a treaty drawn up in an inter-national organization or at an international conferenceconveyed by an international organization,

(i) To communicate the request to all members ofthe organization and to any State not a memberof the organization which is a party, or entitledto become a party, to the treaty; and

(ii) To bring the matter, as soon as possible, be-fore the competent organ of the organizationconcerned.

4. (a) The consent of a State to which a requesthas been communicated under sub-paragraph (a) ofthe preceding paragraph shall be presumed after theexpiry of twelve calendar months, if no objection tothe request has been notified by it to the depositaryduring that period.

(b) If a State to which a request has been com-municated under either sub-paragraph (a) or sub-paragraph (b) of the preceding paragraph shall havenotified the depositary of its objection to the requestbefore the expiry of twelve calendar months from thedate of the communication, and the requesting Stateshall nevertheless have been admitted to accede to thetreaty under paragraph 2 (c) or (d) of this article,the treaty shall not apply in the relations between theobjecting and the requesting States.

5. A purported accession to a treaty shall only beeffective to constitute the acceding State a party to thetreaty, if it is in conformity with the terms of the treaty,instrument or decision creating the right to accede andregulating its exercise.

Commentary(1) Accession is the traditional method by -which a

State may, in certain circumstances, become a party toa treaty of which it is not a signatory. The subject ofaccession was not reached by the Commission when itdiscussed Sir G. Fitzmaurice's draft articles in 1959and the last time that it was considered by the Com-mission was in 1951 on the basis of Professor Brierly'ssecond report (A/CN.4/43). The Commission thendrew up a tentative draft article of three short para-graphs which, in addition to defining accession, laiddown the principles that: (i) a State may only accedewhen the treaty contains provisions allowing it to doso or with the consent of all the parties to the treaty,and (ii) unless otherwise provided in the treaty, acces-sion is only possible after the treaty has come intoforce. Sir G. Fitzmaurice included both these principlesin his draft articles (A/CN.4/101, article 34 andcommentary) whereas Sir H. Lauterpacht in his reports(A/CN.4/63, article 6 and commentary, and A/CN.4/87, article 7 and commentary) questioned their cor-rectness in the light of modern practice. It is thereforenecessary for the present Special Rapporteur to statehis position in regard to them.

(2) It will be convenient to begin with the secondpoint, that "unless otherwise provided in the treaty,accession is only possible after the treaty has come intoforce". It is true that the law was so stated in theHarvard Research Draft (p. 822), where it was saidthat the power to accede to a treaty is usually containedin one of its clauses and cannot, therefore, be effectiveuntil the treaty is in force, and where a certain amountof State practice was cited in support of the claimedprinciple. The force of the logical argument, as Sir H.Lauterpacht said, is open to doubt; pushed to itsrcductio ad absurdum, it would equally mean thatsignature and ratification of a treaty are impossibleuntil the treaty is in force. Clearly, however, the con-sent to accession expressed in the text of a treaty isby itself a sufficient basis for the accession of a non-signatory State, just as it is for the signature andratification of signatories. As to the State practice,

Law of treaties 55

Sir H. Lauterpacht showed (A/CN.4/63, commentaryto article 6) that in a series of treaties between 1929and 1939 this practice appeared to have changed andthat the preponderant practice of Governments is nowin the opposite direction from that indicated in theHarvard Research Draft. Sir G. Fitzmaurice (A/CN.4/101, commentary to article 34), while recognizing thatthere are now some exceptions, more especially wherethe text of the treaty is "adopted" and not signed atall, considered that the practice mentioned by Sir H.Lauterpacht "represented a lax, mainly pre-war, prac-tice that ought not to be encouraged", and he accord-ingly reaffirmed the rule, subject to certain admittedexceptions.

(3) The present Special Rapporteur is entirely ofthe opinion of Sir H. Lauterpacht. An examination ofthe most recent treaty practice shows that in practicallyall modern treaties which contain accession clauses theright to accede is made independent of the entry intoforce of the treaty, either expressly by allowing acces-sion to take place before the date fixed for the entryinto force of the treaty, or impliedly by making theentry into force of the treaty conditional on the deposit,inter alia, of instruments of accession. The modernpractice has gone so far in this direction that the SpecialRapporteur believes that it is no longer appropriateto lay down, even as a residuary rule, the principlethat accession is inoperative prior to the entry into forceof the treaty. On this point, he recalls and adopts as hisown the following statement of Sir H. Lauterpacht:

"Important considerations connected with the ef-fectiveness of the procedure of conclusion of treatiesseem to call for a contrary rule. Many treaties mightnever enter into force but for accession. Where theentire tendency in the field of conclusion of treatiesis in the direction of elasticity and elimination ofrestrictive rules it seems undesirable to burden thesubject of accession with a presumption which prac-tice has shown to be in the nature of an exceptionrather than the rule."

Accordingly, the principle laid down in paragraph 3 (b)of the present article is in the opposite sense from thattentatively adopted by the Commission in 1951.

(4) Turning now to the first point, the conditionsunder which a State may be entitled to accede to atreaty, no great problem exists in the case of bilateral orplurilateral treaties. The right to accede is determinedby the provisions of the treaty and, if the treaty con-tains no provisions concerning accession, then a Statemay only accede with the consent of all the Statesentitled to a voice in the matter. A question may, it istrue, be raised as to the States which should have avoice in the matter—all the negotiating States or onlyStates which become parties to the treaty ? The problemis analogous to that which arises under paragraph 2 (c)of article 7 in regard to the right to sign, and it issuggested de lege ferenda that here too, if the treatyis already in force and four years have elapsed sincethe adoption of the text, then only actual parties shouldhave a voice in the matter.

(5) The question, under what conditions a Statemay be entitled to accede to a multilateral treaty, on theother hand, raises the fundamental problem of whetherStates have an automatic right to participate in treatiesof this kind. This problem has already been referredto in the commentary upon article 7, where mentionwas made of the Commission's discussion of the prob-lem during its 1959 session, at which it had concluded

that the problem primarily concerned the right to par-ticipate in a treaty by accession.

(6) In 1959 (502nd, 503rd and 504th meetings,discussion on article 24) many members of the Com-mission expressed strong approval of the general ideathat treaties of a universal character should be open toparticipation by all States and particular emphasis wasplaced on the desirability of new States having theright to become parties to such treaties. Attention wasalso drawn to the practice concerning general multi-lateral treaties concluded under the auspices of theUnited Nations, participation in which is now invariablymade open to any State which is a Member of theUnited Nations or of a specialized agency or is a Partyto the Statute of the International Court of Justice,and to any other State which is invited by the GeneralAssembly to participate in the treaty. However, althoughit was recognized that the practice of internationalorganizations is not tiniform in the matter, it was gen-erally agreed that there is a strong modern trendtowards the widest possible participation in treaties ofa universal character. Some members, however, pointedout that political considerations—whether springingfrom non-recognition or from other causes—may comeinto play when it is a question of establishing treatyrelations between States, and that international law hasnot hitherto compelled States to accept treaty relationswith another State in regard to any type of treaty, ifthey did not wish to do so. One suggestion that metwith considerable support was that at any rate thoseStates which had been invited to attend the conferenceat which the treaty was drawn up should be regardedas having a right to participate, because the invitationto the conference could properly be considered asimplying a consent to participation in the treaty. Othersuggestions that received support were: (a) that a dis-tinction should be drawn between bilateral, plurilateraland multilateral treaties; (b) that in the case of multi-lateral treaties drawn up at an international conferencethe rule should be laid down de lege ferenda that theadmission of further States to participation in thetreaty would require the consent of a majority (eithera simple majority or two-thirds) of the interestedStates; and (c) that in the case of multilateral treaties

concluded under the auspices of an international or-ganization the admission of additional States should beby decision of the organization concerned. It was alsostressed by some members of the Commission thatmodern multilateral treaties normally contain satisfac-tory accession clauses so that the problem of theaccession of the new States is one which primarilyrelates to the older multilateral treaties.

(7) The Special Rapporteur finds himself in generalaccord with the various points and suggestions madeduring the 1959 discussion, which are set out in thepreceding paragraph; and they will be found expressedin the present draft. It is true that in the Polish UpperSilesia case48 the Permanent Court said, with referenceto an armistice convention, that when a treaty does notprovide for any right of accession it is not possible topresume the existence of such a right. But to make thatpresumption, as the Commission proposes, where thetreaty is a multilateral treaty and where the presump-tion is only to be made in favour of States which wereinvited to attend the international conference that drewup the treaty, does not appear to be unreasonable or inconflict with the general principle acted on by the

48 Series A/7, pp. 28-9.


Permanent Court. The rest of the Commission's pro-posals relate to the extension of the right to participateto additional States by decisions subsequent to thetreaty and that is, of course, an entirely different thing.There the main problem is to find suitable proceduresfor reconciling the sovereign rights of the States partiesto the treaty with the principle of the widest possibleparticipation in multilateral treaties, in other words,suitable procedures for obtaining the necessary consentto the extension of the right to participate to additionalStates.

(8) At the same time, however, it seems doubtfulwhether, even in the sphere of multilateral treaties,States will be ready to agree to a rule under whicha State could be forced to enter into treaty relationswith another State to whose participation in the treatyit actively objected. The question then is whether, inlaying down the rules that an outside State may beentitled to accede to a treaty with the consent of a two-thirds majority or, as the case may be, at the invitationof an international organization, it is necessary to pro-vide that, if an individual State notifies its objection tothe participation of the State concerned, the treatyshall not be applicable as between the objecting andthe acceding State, even although the latter has beenadmitted to accede to the treaty under one or other ofthese rules. No doubt, it may fairly be urged that thenorms contained in multilateral treaties are, ex hypo-thesi, of a general character which should in principlebe applicable between all the parties to the treaty.But the matter is not so simple as that. Quite apartfrom the fact that multilateral treaties frequently con-tain at least some new provisions agreed to de legejcrenda, there may be jurisdictional clauses, eitherwithin the treaty or in other instruments, which arebrought into play by the linking together of the twoStates in mutual treaty relations. An analogous, thoughnot identical, problem exists in regard to reservationswhere it seems to be established law that a State mayprevent treaty relations from coming into being betweenitself and the reserving State by objecting to the latter'sreservation. Having regard to the fundamental roieplayed by the consent of the individual State in theformation of treaty relations, a provision to the sameeffect has been included in paragraph 4 (b) of thepresent article for the Commission's consideration.

(9) Paragraph 1 of the draft covers rights of acces-sion conferred by the treaty itself either expressly orby implication. Sub-paragraph (a) requires no comment.Sub-paragraph (b) seeks to give effect to the suggestionmade in 1959, and referred to in paragraphs 6 and 8above, that States invited to participate in a conferencecan reasonably be considered to have a right of acces-sion by reason of the consent implied in that invitation.

(10) Paragraph 2 covers rights of accession con-ferred by consents given subsequently to the adoptionof the text of the treaty. Sub-paragraphs (a) and (b)deal with the cases of bilateral and plurilateral treaties,where the principle of unanimous consent operates inany decision to admit an additional party to accession.The only point that seems to require comment is theintroduction into sub-paragraph (6) of a distinctionbetween the position before and the position after theexpiry of a period of four years. The problem here isthe extent to which the right of a signatory State to vetoaccession by an additional State, when the signatoryitself has not yet taken the necessary steps to become aparty and shows no signs of ever doing so. In principle,

every signatory has a voice in decisions to widen theparticipation in the treaty but, when the treaty has comeinto force, it is arguable that at some moment in historythe time should come when the parties and the partiesonly should have the power of decision. Sir G. Fitz-maurice suggested that the point might be covered bya rule stating that, when the treaty is in force, thedecision should rest with the parties "after consultationwith any States entitled to become parties by ratifica-tion". That rule seems, however, to be open to objec-tion. In the first place, the treaty may be expressed tocome into force after only two or three States havebecome parties, in which case the treaty might comeinto force very quickly and the signatory States bedeprived of their right to an actual voice in the decisionat an unjustifiably early date. In the second place, anobligation to "consult" the other signatories laid downas an express obligation might leave the parties in somedoubt as to how much weight to attach to an objectionby a mere signatory. It seems preferable, in the interestsof clarity and certainty to put a time limit—a reason-ably generous time limit—on the exercise of the rightsof a mere signatory after the treaty has once beenbrought into force by the ratifications, or other finalacts of consent, of other signatories. This will bothpreserve the signatory's legitimate voice in the matterin the early period after the adoption of the treaty andbring it to an end when its exercise ceases to belegitimate.

(11) Sub-paragraph (c) deals with the case of amultilateral treaty drawn up at an international confer-ence convened by the States concerned, and adopts thesuggestion made in 1959 that the admission of a rightof accession for additional States should be by consentof a two-thirds majority of the States entitled to a voicein the matter. Here again the problem arises of theextent of the right of a signatory State which doesnot proceed to ratify, or otherwise become a party to,the treaty within a reasonable time and the same solutionis suggested as in the case of plurilateral treaties. Theprocess of obtaining the necessary consents after a con-ference attended by a large number of States has brokenup is somewhat laborious and it has been thought desir-able, in paragraph 3 of the present article, to makespecific provision for the procedure to be followedwhen a State applies to be allowed to accede to a multi-lateral treaty drawn up in this way.

(12) Sub-paragraph (d) deals with the cases wherethe treaty has been drawn up either in an internationalorganization or at a conference convened by an inter-national organization; and it adopts in both cases theprinciple that the admission of additional States to par-ticipation in the treaty is to be effected by decision ofthe competent organ of the organization. Accessionclauses which confer upon an international organizationthe power to extend participation in a multilateral treatyto additional States are now common, and the practiceis both logical and convenient. For it affords a regularand easily operated procedure for dealing with pro-posals to enlarge the circle of participants in such atreaty. When the treaty has been drawn up in the or-ganization itself and the text adopted by a decision orresolution of its competent organ, no possible doubt canexist as to the legitimacy of the rule proposed. When,however, the treaty has been drawn up merely at aconference convened by an organization, the questionmay fairly be raised whether the power of decisionshould not lie rather with the States responsible for

Law of treaties 57

drawing up the treaty and framing its "final clauses".A conference convened by an organization, it may besaid, does not differ in any essential way from a con-ference convened by the States themselves, and to placethe power of decision in regard to widening the circleof the parties to the treaty in the hands of the organi-zation is an interference with the sovereign rights of theStates participating in the conference. Under the exist-ing law that may, strictly speaking, be the position.On the other side, it can be urged that, when an inter-national organization decides to invite specified Statesor categories of States to an international conferencefor the purpose of drawing up a multilateral treaty, italready asserts a certain authority with respect to thedetermination of the participants in the treaty. It is truethat the States responding to the invitation have it intheir power at the conference to lay down in the treatyprovisions regulating the right of accession to it. It isalso true that some of the States attending the confer-ence may not be members of the organization, as wasthe case, for example, at the Geneva Conference onthe Law of the Sea and the Vienna Conference onDiplomatic Intercourse and Immunities.49 Nevertheless,it does not seem a big step to propose, de lege jerenda,that, unless the treaty itself otherzvise provides, thepower to invite additional States to accede to the treatyshould vest in the organization which was responsiblefor convening the treaty-making conference. If such arule were to be laid down in the present articles, itwould be understood by non-member States attendingany future conference that, unless another rule were tobe laid down in the treaty, the question of invitingadditional States to accede would be decided by thecompetent organ of the organization. Moreover, itwould be open to the organization to obtain the viewsof any non-member State that participated in the draw-ing up of the treaty and, if its procedure permitted,to allow the non-member State to participate in thedecision. The very fact that a number of multilateraltreaties in the drafting of which non-member Statesparticipated already contain a rule of this kind50 sug-gests that its adoption in the present article would notbe inappropriate.

If the Commission does not accept this way of look-ing at the matter, the logical course will presumably beto place multilateral treaties drawn up at a conferenceconvened by an international organization under thesame rule as those drawn up at other conferences, inother words, under the two-thirds rule of sub-para-graph (c).

(13) Paragraphs 3 and 4 contain the procedurewhich is suggested for dealing with requests to beallowed to accede to a multilateral treaty. It is based onthe procedure already followed in many cases by deposi-taries with regard to reservations and objections toreservations. Multilateral treaties today may be adoptedby anything up to one hundred States and if the rule ofadmission to a right of accession by consent of a two-thirds majority is to be workable, it seems essential tohave some such procedure as that set out in paragraph 3of the draft.

49 Equally, of course, some members of the organization vot-ing afterwards upon the proposal to extend the circle of partiesto the treaty might have failed to attend the conference.

60 For example, the four Conventions resulting from theGeneva Conference of 1958 on the Law of the Sea and theVienna Convention of 1961 on Diplomatic Relations.

(14) It also seems essential for the effectiveness ofthat rule that after a certain period of time the silenceof a State confronted with a request for a right to accedeshould be presumed to constitute consent, and para-graph 4 (a) proposes that this should be the case afterthe expiry of twelve months. Whether twelve monthsis too long a period may be a question, for shorterperiods have been accepted in some treaties for thepurpose of presuming consent to reservations; buttwelve months is the period recommended in a recentresolution of the Inter-American Council of Juristsdealing with reservations to multilateral treaties. Ashorter period may well be appropriate in treaty pro-visions when the parties have expressed their readinessto accept it. But in a general provision it may be neces-sary to allow a longer period, in order that the pro-vision may meet with the assent of the great majorityof States. It is for this reason that a twelve monthsperiod is the period inserted in the draft.

(15) Paragraph 4 (b), for the reason already ex-plained in paragraph 8 of this commentary, providesthat, if a State gives timely notice of its objection to arequest, the treaty shall not in any event be applicablein the relations between the objecting and requestingStates.

(16) Finally, it is necessary to consider the specialproblem of opening to the accession of new States thoseolder multilateral treaties whose circle of eligible partiesis now closed owing to the terms of their participationclauses. The difficulty here is that, even if the presentarticles were to contain a provision specifically creat-ing a right to accede to such treaties and were to beadopted at an international conference as a conventionon the conclusion of treaties, they might not be sufficientto achieve the object. A convention only binds theparties to it, and unless all the surviving parties to theolder multilateral treaties in question became actualparties to the new convention on the conclusion oftreaties, there might be doubt about the effectiveness ofthe convention to create the right of accession. Onlyrecently, in the Aerial Incident case,51 the InternationalCourt of Justice affirmed that the Charter itself—ormore precisely the Statute of the Court annexed to theCharter—was "without legal force so far as non-signatory States were concerned". It is normally a longtime before any considerable proportion of the States,which participated in the adoption of a multilateraltreaty, take the further steps necessary to make themactual parties to it. In consequence, a convention codify-ing the law governing the conclusion of treaties wouldbe unlikely to be a very expeditious or a very effectiveinstrument for extending the participation of the oldermultilateral treaties to new States.

This leads the Special Rapporteur to suggest that itmay be better to seek for the solution of this problemin procedures outside those envisaged in the presentarticles. It seems to be established that the opening ofa treaty to accession by additional States, while it re-quires the consent of the States entitled to a voice inthe matter, does not necessitate the negotiation of afresh treaty amending or supplementing the earlier one.One possibility would be for administrative action tobe taken through the depositaries of the individualtreaties to obtain the necessary consents of the Statesconcerned in each treaty; indeed, it is believed thataction of this kind has been taken in some cases.

I.C.J. Reports, 1959, at page 138.


Another expedient that might be considered is whetheraction to obtain the necessary consents might be takenin the form of a resolution of the General Assembly bywhich each Member State agreed that a specified list ofmultilateral treaties of a universal character should beopened to accession by any State Member of the UnitedNations or of a specialized agency or Party to theStatute of the International Court of Justice and to anyother State invited by decision of the General Assembly.There would, of course, be a few non-member Stateswhose consent would also be necessary, but it wouldnot be impossible to devise a means of associating theseStates with the resolution. Apart from possible politicaldifficulties arising out of problems of State succession,such a resolution might be expected to command almostunanimous support and, if so, to provide a basis for theaccession of additional States, and more especially newStates, to a number of multilateral treaties of a universalcharacter. Alternatively, the General Assembly mightdraw up a list of the treaties accession to which byadditional States is desirable and invite the Statesparties to them to open these treaties to accession bythe above-mentioned categories of States, pointing outthat a number of recent multilateral treaties containaccession clauses of this kind.

ARTICLE 14. T H E INSTRUMENT OF ACCESSION

1. (a) Accession shall be carried out by means of awritten instrument, executed by an authority com-petent under the laws of the acceding State to executeinstruments of accession and notifying the State's acces-sion to the treaty.

(b) The form of instruments of accession shall begoverned by the internal laws and usages of the acced-ing State.

2. (a) Unless the treaty itself provides that con-tracting States may elect to become bound by part orparts only of the treaty, the instrument of accessionmust extend to the whole treaty.

(b) An instrument of accession may not be madeconditional upon the occurrence of a future event suchas the ratifications or accessions of other States. Anyother conditions embodied in an instrument of accessionshall be treated as equivalent to reservations and theirvalidity and effect shall be determined by the principlesgoverning the validity and effect of reservations.

3. Unless an instrument of accession expressly pro-vides that it shall be subject to subsequent ratificationor acceptance by the acceding State, it shall be taken asconstituting a definitive expression of the accedingState's consent to be bound by the treaty.

4. Mutatis mutandis, the provisions of paragraphs 3and 4 of article 11 of the present articles concerning thecoming into operation of instruments of ratification shallalso apply to the coming into operation of instrumentsof accession.

Commentary

(1) The modalities of accession are similar to thoseof ratification, and the comments on article 11 are to alarge extent applicable also to the provisions of thisarticle.

(2) The only provisions appearing to require addi-tional comments are those in sub-paragraphs 2 (b) and2 (c), which mention the possibility of an accessionbeing made subject to ratification. Accession, like ratifi-

cation, is generally regarded as an act which by its verynature is a definitive expression of consent to be boundby the treaty and therefore an act which is not, inprinciple, capable of being made subject to ratification.Nevertheless, during the League of Nations periodthere were a number of examples of accessions beingmade subject to ratification, and their admissibility wasconsidered by the Assembly in 1927, which passed thefollowing resolution:

"The procedure of accession to international agree-ments given subject to ratification is an admissibleone which the League should neither discourage norencourage. Nevertheless, if a State gives its accession,it should know that, if it does not expressly mentionthat this accession is subject to ratification, it shallbe deemed to have undertaken a final obligation. If itdesires to prevent this consequence, it must expresslydeclare at the time of accession that the accession isgiven subject to ratification."52

Sir G. Fitzmaurice, pointing out that an accession sub-ject to ratification is not an accession at all (A/CN.4/101, commentary to article 35), criticized the practiceof doing so as really amounting to an attempt to securethe status of signatory after the date of signature haspassed. He also considered it to be "desirable that thevarious acts and concepts involved in treaty-makingshould preserve their respective special uses and dis-tinctive juridical characteristics, and not become blurredby being resorted to out of place". On scientific groundsthere is much to be said for this point of view, andthe Commission will certainly wish to give it fullconsideration.

(3) However, after studying the relevant passagesin the Summary of the Secretary-General's Practice(ST/LEG/7, paragraphs 47-49), the Special Rappor-teur feels that the Commission may wish to see thearticle formulated in accordance with the League ofNations resolution. Sir Gerald Fitzmaurice had notknown of any examples of this practice having occurredsince 1945, whereas it appears from the Secretary-General's Summary that the United Nations Secretariathas encountered some instances of this practice. TheSecretary-General states that the position he takes,when he receives an instrument of accession subject toratification, is similar to that taken by the League ofNations Secretariat. He considers it "simply as a noti-fication of the Government's intention to become aparty", and he does not notify the other States of itsreceipt. Furthermore, he draws the attention of theGovernment to the fact that the instrument does notentitle it to become a party and underlines that "it isonly when an instrument containing no reference tosubsequent ratification is deposited that the State willbe included among the parties to the agreement and theother Governments concerned notified to that effect".The Secretary-General's treatment of the matter seemsto go some way towards meeting Sir G. Fitzmaurice'spoint that the various acts and concepts involved intreaty-making should preserve their respective specialuses and distinctive juridical characteristics; for theSecretary-General makes it clear that an accessionsubject to ratification is not an accession, and he givesno encouragement to the idea that it can be regardedas in any sense a "signature".

52 Texts of the debates, plenary meetings, records of theeighth ordinary session of the Assembly, Official Journal of theLeague of Nations.

Law of treaties 59

(4) Accession subject to ratification, it is clear, ismore a political gesture of support for the treaty thana legal act of participation in the treaty. Nevertheless,as it is apparently found in practice and is consideredby some States to be useful, it seems desirable to coverit in the draft articles, if only for the purpose of leavingno doubt about its ineffectiveness as an act of participa-tion in a treaty. Accordingly, while paragraph 3 of thisarticle, in line with the League of Nations resolution,does not go to the length of prohibiting the deposit ofan instrument of accession subject to ratification, thenext article expressly states that it only constitutes anotice of intention to accede and that accession will nottake place unless and until a new unconditional instru-ment of accession is deposited. Paragraph 3 of thepresent article also states that, unless accession is ex-pressly made subject to ratification, it shall be consideredto be intended as a final act of consent to the treaty;this follows from the very nature of accession as an actof final consent, and accords with the practice of theSecretariats both of the League of Nations and of theUnited Nations.

ARTICLE 15. LEGAL EFFECTS OF ACCESSION

1. An instrument of accession which is expressed tobe subject to ratification or approval operates only as aconditional notification of the acceding State's intentionto become bound by the treaty. A State depositing suchan instrument shall not therefore become a party to thetreaty, whether actual or presumptive, unless and untilit shall have deposited a further instrument notifyingits definitive accession to the treaty.

2. Accession, when definitive, shall have the samelegal effects as those stated in article 12 to be conse-quent upon ratification.

Commentary

(1) Accession, like ratification, is intrinsically an actby which a State commits itself definitively to par-ticipation in the treaty. Accordingly, when a Statedeposits an instrument of accession which is expressedto be subject to subsequent ratification or approval, itexecutes an act which falls short of, and does not con-stittite, accession to the treaty. Nor can its effect besaid to be equivalent to that of signature; for signaturehas its own special function and status. Nor can there beany question of the deposit of the instrument making theState a provisional party to the treaty; for the sub-sequent ratification or approval of the State is a con-dition precedent to its becoming bound by the treaty.

Accession "subject to ratification or approval" istherefore believed to have, strictly speaking, no positivelegal effects, and this appears to be the view taken bythe Secretary-General in his capacity as depositary ofmultilateral treaties. As already mentioned in para-graph 3 of the commentary upon the previous article,when the Secretary-General receives an instrument ofaccession given subject to ratification, he considers itsimply as a notification of the Government's intentionto become a party and he docs not notify the otherStates of its receipt. He draws the attention of theGovernment to the fact "that the instrument does notentitle it to become a party and that it is only whenan instrument containing no reference to subsequentratification is deposited that the State will be includedamong the States parties to the agreement and the otherGovernments notified to that effect" (ST/LEG/7, p.26). Paragraph 1 of the present article endorses this

practice and emphasizes the absence of any positive legaleffects consequent upon an accession "subject to ratifi-cation or approval".

(2) Accession, when definitive, has precisely thesame legal effects as those already stated in article 12for ratification. Sir G. Fitzmaurice, it is true, mentionsthe possibility of a treaty reserving certain rights tosignatories and ratifying States, to the exclusion ofacceding States. Any such special rights would, how-ever, be additional to the normal legal effects men-tioned in article 12, and it is not thought necessary torefer to this point in the present article. Paragraph 2,therefore, simply provides that the legal effects of adefinitive accession shall be the same as those of rati-fication as set out in article 12.

ARTICLE 16. PARTICIPATION IN A TREATYBY ACCEPTANCE

1. States may become parties to a treaty by accept-ance, as defined in article 1 of the present articles, inthe following cases:

(a) Where the treaty expressly provides that it maybe signed subject to subsequent acceptance by thesignatory State; and

(b) Where the treaty expressly provides that Statesmay become parties to it directly by acceptance withoutprior signature.

2. In cases falling under paragraph 1 (a) of thisarticle, the procedure and legal effects of acceptanceshall be determined by reference, mutatis mutandis, tothe provisions of articles 11 and 12 governing theprocedure and legal effects of ratification.

3. In cases falling under paragraph 1 (b) of thisarticle, the procedure and legal effects of acceptanceshall be determined by reference, mutatis mutandis,to the provisions of articles 14 and 15 governing theprocedure and legal effects of accession.

4. Unless the context otherwise requires, the signa-ture of a treaty subject to "approval" and a treatyopened to "approval" without prior signature shall beregarded as equivalent respectively to the signature ofa treaty subject to "acceptance" and a treaty openedto "acceptance" without prior signature, and the fore-going provisions of the present article shall accordinglyapply.

Commentary

(1) The draft articles tentatively adopted by theCommission in 1951 did not contain any provisions inregard to "acceptance" as a method of becoming a partyto a treaty. The explanation is that, although "accept-ance" has been deliberately introduced into treaty-practice in the past twenty years as a new procedure forbecoming a party to treaties, it does not really repre-sent a new method of entering into treaty obligations.The innovation is one of terminology rather than ofsubstance; for, if the treaty is open to "acceptance"without prior signature, the method is indistinguishablefrom that of accession, while, if acceptance is to followupon a prior signature, the method is indistinguishablefrom that of ratification. Sir H. Lauterpacht also wasdoubtful about recognizing "acceptance" as a proceduredistinct from ratification, and compromised by insertinga draft article in brackets, at the same time commentingthat he was not certain that it ought to be retained(A/CN.4/63, article 8 and commentary).


(2) Sir G. Fitzmaurice, however, although he tooemphasized that "acceptance" does not involve any newprinciple, recognized it in a special article as a distinctprocedure for becoming a party to a treaty, sometimestaking the place of accession, sometimes of ratification(A/CN.4/101, article 36 and commentary). This ap-pears to the present Special Rapporteur to be the correctcourse to adopt. Acceptance was originally devised toprovide a new procedure outside the traditional pro-cedures of accession and ratification in order to facilitateentry into treaty obligations without the delays involvedin complying with internal constitutional requirements;and it is now found with sufficient frequency in treatypractice to justify and even call for specific mention.53

(3) As emerges from what has been said above,"acceptance" is not a single uniform procedure but isa term which covers two different procedures analogousto accession and ratification; and this fact is reflectedin the provisions of the present article.

(4) In recent years the terminology of treaty-makinghas become more various, not to say less scientific, andone of the commonest of the new terms is "approval",either in the form of a signature made subject to"approval" or of a treaty made open to "approval".Sir G. Fitzmaurice did not cover this new form, andthe present Special Rapporteur has hesitated to giveit specific mention in the draft articles. Other non-classical terms are to be found in State practice andit is not easy to see where the line should be drawn.However, "approval" now appears to have establisheditself and to be sufficiently common, more especiallyin treaties to which international organizations areparties, to require mention. One writer,5311 for example,has said that in the United Nations Treaty Series forthe years 1946-51 he found no less than ninety instru-ments that had been brought into force by "approval".In general, "approval" seems to be used as a synonymfor one or other of the two uses of "acceptance"referred to in the present article. But it appears fromthe example given on page 18 of the Handbook ofFinal Clauses (ST/LEG/6) that it may sometimesbe found used with a special sense. Accordingly, para-graph 4 of the present article states that "unless thecontext otherwise requires" the term "approval" shouldbe treated as equivalent to "acceptance".

ARTICLE 17. POWER TO FORMULATE AND WITHDRAWRESERVATIONS

1. (a) A State is free, when signing, ratifying,acceding to or accepting a treaty, to formulate a reserva-tion, as defined in article 1, unless:

(i) The making of reservations is prohibited bythe terms of the treaty, or excluded by thenature of the treaty or by the established usageof an international organization; or

(ii) The treaty expressly restricts the making ofreservations to a specified category, or specifiedcategories, of reservation and the reservationin question does not fall within the categoryor categories mentioned in the treaty; or

(iii) The treaty expressly authorizes the makingof a specified category, or specified categories,of reservation, in which case the formulation

53 See Lord McNair, Law of Treaties, pp. 155-7.63a Hans Blix, "The Requirement of Ratification", British

Year Book of International Law, 1953, pp. 363-4.

of reservations falling outside the authorizedcategory or categories is by implication ex-cluded.

(b) The formulation of a reservation, the makingof which is expressly prohibited or impliedly excludedunder any of the provisions of sub-paragraph (a), isinadmissible unless the prior consent of all the otherinterested States has been first obtained.

2. (a) When formulating a reservation under theprovisions of paragraph 1 (a) of this article, a Stateshall have regard to the compatibility of the reservationwith the object and purpose of the treaty.

(b) The effect of the formulation of a reservationupon the legal relations between the reserving Stateand the other State or States signing, ratifying, accedingto or accepting the treaty shall be determined by refer-ence to the provisions of articles 18 and 19 below.

3. (a) Reservations shall be formulated in writingeither:

(i) On the face of the treaty itself, and normallyin the form of an adjunct to the signature ofthe representative of the reserving State;

(ii) In a Final Act of a conference, protocol, proces-verbal or other instrument related to the treatyand executed by a duly authorized representa-tive of the reserving State;

(iii) In the instrument by which the reserving Stateratifies, accedes to or accepts the treaty, orin a proces-verbal or other instrument accom-panying the instrument of ratification, accessionor acceptance and drawn up by the competentauthority of the reserving State.

(b) A reservation formulated at the time of a signa-ture which is subject to ratification or acceptance shallcontinue to have effect only if the instrument of ratifica-tion or acceptance either repeats the reservation orincorporates it by reference, or the reserving State atthe time of ratification clearly expresses in some othermanner its intention to maintain the reservation.

4. (a) The formulation of a reservation when sign-ing a treaty at a meeting or conference of the negotiatingStates shall be communicated to the representativesof the other signatory State or States at or before thetime of signature of the treaty. Such communicationshall be presumed in the case of a reservation formulatedin the manner mentioned in sub-paragraph (a) (i) and(ii) of the preceding paragraph.

(b) The formulation of a reservation by a State sign-ing, ratifying, acceding to, or accepting a treaty sub-sequently to the meeting or conference at which it wasadopted shall be communicated to all other States whichare, or are entitled to become, parties in accordancewith the procedure, if any, prescribed in the treaty forsuch communications.

(c) If no procedure has been prescribed in thetreaty in regard to the communication of reservationsbut the treaty designates a depositary of the instrumentsrelating to the treaty, then the formulation of thereservation shall be communicated to the depositary,whose duty is shall be:

(i) To transmit the text of the reservation to allother States who are, or are entitled to become,parties to the treaty; and

(ii) To draw the attention of such States to thetime limit within which an objection to thereservation should be filed under the provisionsof the treaty or, failing any such provisions,

Law of treaties 61

under paragraph 3 (b) of the next succeedingarticle.

5. However, in any case where a reservation isformulated to an instrument which is the constituentinstrument of an international organization and thereservation is not one specifically authorized by suchinstrument, it shall be communicated to the Head ofthe secretariat of the organization concerned in orderthat the question of its admissibility may be broughtbefore the competent organ of such organization.

6. A State which has formulated a reservation isfree to withdraw it unilaterally, either in whole or inpart, at any time, whether the reservation has beenaccepted or rejected by the other States concerned.Withdrawal of the reservation shall be effected bywritten notification to the depositary of instrumentsrelating to the treaty and, failing any such depositary,to every State which is or is entitled to become a partyto the treaty.

ARTICLE 18. CONSENT TO RESERVATIONS AND ITSEFFECTS

1. A reservation, since it purports to modify theterms of the treaty as adopted, shall only be effectiveagainst a State which has given, or is presumed to havegiven, its consent thereto in accordance with the pro-visions of the following paragraphs of this article.

2. (a) Consent to a reservation shall be held to havebeen given expressly if such consent is stated:

(i) In the treaty itself;(ii) In the Final Act of the conference at which the

treaty was drawn up, in a protocol of signatureor of exchange of ratifications, in a procfo-verbal or other instrument related to the treatyand executed by a duly authorized representa-tive of the consenting State;

(iii) In the instrument by which the consentingState ratifies, accedes to or accepts the treaty,or in a proccs-verbal or other instrument ac-companying the instrument of ratification, ac-cession or acceptance and drawn up by thecompetent authority of the consenting State;

(iv) In a formal notification of such consent issuedby the competent authority of the consentingState and addressed either to the State or Statesconcerned or to the depositary of instrumentsrelating to the treaty.

(&) Consent to a reservation shall also be held tohave been given expressly where the treaty itself au-thorized the making of a particular reservation orcategory of reservations and the reservation falls withinthe terms of the authorization.

3. (a) Any State which is or is entitled to becomea party to a treaty shall be deemed to have consentedto a reservation in any case where the reservation wasformulated on the face of the treaty or in the Final Actof the conference or in a proces-verbal or other instru-ment related to the treaty and it then made no objectionto the reservation.

(b) Any such State shall also be deemed to haveconsented to a reservation to a plurilateral or multi-lateral treaty in any case where the reservation wascommunicated to the State in question and twelve cal-endar months have since elapsed without any notice ofobjection to the reservation having been lodged by thatState; provided that, in the case of a multilateral treaty,a State which at the time of such communication was

not a party to the treaty shall not be deemed to haveconsented to the reservation if it shall subsequentlylodge an objection to the reservation, when executingthe act or acts necessary to qualify it to become a partyto the treaty.

(c) A State which acquires the right to become aparty to a treaty after a reservation has already beenformulated shall be presumed to consent to the reserva-tion :

(i) In the case of a plurilateral treaty, if it executesthe act or acts necessary to enable it to becomea party to the treaty;

(ii) In the case of a multilateral treaty, if it executesthe act or acts necessary to qualify it to becomea party to the treaty without signifying itsobjection to the reservation.

4. (a) In the case of a bilateral treaty, the consentof the other negotiating State to the reservation shallautomatically establish the reservation as a term of thetreaty between the two States.

(b) Unless the treaty shall otherwise provide oranother rule be applicable under the constitution orusages of an international organization or under adecision of its competent organ:

(i) The consent, express or implied, of all theStates participating in the adoption of the textof a plurilateral treaty is necessary to establishthe admissibility of a reservation not specificallyauthorized by the treaty, and to constitute thereserving State a party to the treaty; providedthat the consent of a State which after theexpiry of twelve months from the date of lodg-ing an objection has not yet executed a defini-tive act qualifying it to become a party to thetreaty shall be dispensed with, and providedthat, if the treaty is in force and not less thanfour years have elapsed since the adoption ofits text, the consent only of the parties to thetreaty shall be required;

(ii) The consent, express or implied, of any otherState which is a party or a presumptive partyto a multilateral treaty shall suffice, as betweenthat State and the reserving State, to establishthe admissibility of a reservation not specificallyauthorized by the treaty, and shall at once con-stitute the reserving State a party to the treatywith respect to that State.

(c) In the case of a plurilateral or multilateral treatywhich is the constituent instrument of an internationalorganization, the consent of the organization, expressedthrough a decision of its competent organ, shall benecessary to establish the admissibility of a reservationnot specifically authorized by such instrument, and toconstitute the reserving State a party to the instrument.

5. (a) When the treaty has entered into force, areservation which has been established as admissiblein accordance with the provisions of the present articleshall operate:

(i) To exempt the reserving State from the provi-sions of the treaty to which the reservationrelates to the extent of the matters covered bythe reservation; and

(ii) Reciprocally to entitle any other party to thetreaty to claim the same exemptions from theprovisions of the treaty in its relations with thereserving State.


(b) The reservation of one party to a plurilateralor multilateral treaty shall operate only as between thereserving State and the other parties to the treaty;it shall not affect in any way the rights and obligationsof the other parties to the treaty inter se.

ARTICLE 19. OBJECTION TO RESERVATIONS AND ITSEFFECTS

1. (a) With the exception of the cases mentionedin sub-paragraph (b), any State which is or is entitledto become a party to a treaty shall have the right toobject to any reservation not specifically authorized bythe terms of the treaty.

(b) In the case of a plurilateral treaty, however, aState shall not have the right to object to a reservation:

(i) If it acquired the right to become a party tothe treaty after the reservation had alreadybeen formulated; or

(ii) If more than four years have elapsed since theadoption of the text or the treaty and it has notyet executed the act or acts necessary to enableit to become a party to the treaty.

2. (a) An objection to a reservation shall be for-mulated in writing by the competent authority of theobjecting State or by a representative of the State dulyauthorized for that purpose.

(b) The objection shall be communicated to thereserving State and to all other States, which are orare entitled to become parties to the treaty, in accord-ance with the procedure, if any, prescribed in the treatyfor such communications.

(c) If no procedure has been prescribed in thetreaty but the treaty designates a depositary of theinstruments relating to the treaty, then the lodging ofthe objection shall be communicated to the depositarywhose duty it shall be:

(i) To transmit the text of the objection to thereserving State and to all other States whichare or are entitled to become parties to thetreaty; and

(ii) To draw the attention of the reserving Stateand the other States concerned to any provi-sions in the treaty relating to objections toreservations.

3. (a) In the case of a plurilateral or multilateraltreaty, an objection to a reservation shall not be effec-tive unless it has been lodged before the expiry oftwelve calendar months from the date when the reserva-tion was formally communicated to the objecting State;provided that, in the case of a multilateral treaty, anobjection by a State which at the time of such com-munication was not a party to the treaty shall neverthe-less be effective if subsequently lodged when the Stateexecutes the act or acts necessary to enable it to becomea party to the treaty.

(b) In the case of a plurilateral treaty, an objectionby a State which has not yet become a party to thetreaty, either actual or presumptive, shall:

(i) Cease to have effect, if the objecting State shallnot itself have executed a definitive act of par-ticipation in the treaty within a period of twelvemonths from the date when the objection waslodged;

(ii) Be of no effect, if the treaty is in force andfour years have already elapsed since theadoption of its text.

4. When an objection has been made to a reservationin conformity with the provisions of the present articleand the reserving State does not withdraw its reserva-tion :

(a) In the case of a bilateral treaty, the treaty fallsto the ground;

(b) In the case of a plurilateral treaty, unless thetreaty shall otherwise provide or another rule be ap-plicable under the constitution or usages of an interna-tional organization or under a decision of its competentorgan, the reserving State shall be excluded from par-ticipation in the treaty;

(c) In the case of a multilateral treaty, the objectionsshall preclude the entry into force of the treaty asbetween the objecting and the reserving States, but shallnot preclude its entry into force as between the reservingState and any other State which does not object to thereservation;

(d) In the case of a treaty which is the constituentinstrument of an international organization, the decisionof the competent organ of the organization rejectingthe reservation shall exclude the reserving State fromparticipation in the treaty.

5. A State which has lodged an objection to areservation shall be free to withdraw it unilaterally,either in whole or in part, at any time. Withdrawalof the objection shall be effected by written notificationto the depositary of the instruments relating to thetreaty, and failing any such depositary, to every Statewhich is or is entitled to become a party to the treaty.

Commentary on articles 17, 18 and 19(1) These three articles have to be read together

because the power of a State to formulate reservationsto a treaty cannot be considered separately from thecorresponding power of other States to accept or rejectthe reservation. Indeed, there is an inherent ambiguityin saying, as is usually said, that a State may "make"a reservation; for the very question at issue is whethera reservation formulated by one State can be held tohave been effectively "made" unless and until it has beenassented to by the other interested States. Accordingly,the present draft seeks to cover the "making" of reserva-tions in three connected articles dealing with (i) the"formulation" of reservation, (ii) consent to reserva-tions and its effects and (iii) objection to reservationsand its effects. Reservations to bilateral treaties presentno problem. Reservations to plurilateral treaties posecertain problems with regard to the conditions underwhich States are entitled to express their consent orobjection to a reservation; but the basic principle ap-pears to be generally accepted that reservations toplurilateral treaties require the consent of all the partiesto the treaty, unless in a particular case the treaty orthe constitution of an international organization pro-vides that the consent of a majority will suffice. Thereal difficulty arises in the case of reservations to multi-lateral treaties, where the basic principle with regard tothe acceptance of reservations is controversial and wherethe reconciliation of the respective interests of thereserving State and the other States participating inthe treaty presents problems of considerable complexity.

(2) The subject of reservations to multilateral treatieshas been much discussed during the past twelve yearsand opinion has been sharply divided both in theInternational Court of Justice and in the GeneralAssembly on the fundamental question of the extent towhich the consent of other interested States is necessaryto the effectiveness of a reservation to this type of

Law of treaties 63

treaty. In 1951,54 the traditional doctrine under whicha reservation, in order to be valid, must have the assentof all the other interested States was not accepted bythe majority of the Court as applicable in the particularcircumstances of the Genocide Convention; moreover,while they considered the traditional doctrine to be of"undisputed value", they did not consider it to havebeen "transformed into a rule of law". Four judges,on the other hand, dissented from this view and set outtheir reasons for holding that the traditional doctrinemust be regarded as a generally accepted rule of cus-tomary law. Later that same year, the Commission ina report to the General Assembly on the general questionof reservations to multilateral conventions (A/1858,chapter II) recommended the adoption of the traditionaldoctrine as the general rule, notwithstanding that theCourt had not accepted it as applicable in the particularinstance of the Genocide Convention. This recommenda-tion was not, however, accepted at the ensuing sessionof the General Assembly; on the contrary, a substantialgroup of States showed themselves entirely unwillingto endorse the traditional doctrine as the general rulefor multilateral treaties, and even those States that werein favour of maintaining the traditional doctrine showedsome disposition to modify it by substituting a two-thirds majority principle for the principle of unanimousconsent. The resolution ultimately adopted by the As-sembly (resolution 598 (VI) of 12 January 1952) didnot attempt to express any definite conclusion on thequestion, but simply requested the Secretary-General,as depositary of numerous multilateral treaties, to acceptthe deposit of instruments containing or relating toreservations and to communicate their texts to all Statesconcerned without passing upon their legal effect. Thequestion was subsequently taken up again in the Com-mission, first, by Sir H. Lauterpacht in his reports of1953 and 1954, and then by Sir G. Fitzmaurice in hisreport of 1956. The former, while thinking the una-nimity rule to be the existing rule, did not considerit to be satisfactory and made four alternative proposals,two of which envisaged acceptance by a two-thirdsmajority and the other two submission of the admis-sibility of reservations either to a committee of thenegotiating States or to a chamber of the Court. Sir G.Fitzmaurice, on the other hand, recommended the Com-mission to revert to the unanimity rule which it favouredin 1951, subject to two modifications: (i) a presump-tion that failure to object to a reservation during aperiod of three months amounts to tacit consent and(ii) after a treaty has been in force for five years onlythe objection of an actual party to the treaty should beeffective to bar a reserving State from participation inthe treaty.

The draft articles now placed before the Commissionhave been prepared after careful consideration of theOpinion of the Court and the dissenting judges con-cerning reservations to the Genocide Convention, theproceedings in the Sixth Committee and the GeneralAssembly, and the reports and proceedings of the Com-mission itself. No doubt the Commission will wish toconsult the original records of the various proceedingsand the full reports of the Commission's previous Spe-cial Rapporteurs. But, having regard to the complexityof the question and the extent of the records, it has beenthought useful to append to the present commentarya substantial Note summarizing the previous discussions

54 Reservations to the Convention on the Prevention andPunishment of the Crime of Genocide, I.C.J. Reports, 1951,p. 15.

of the problem of reservations to multilateral treatiessince it first came before the Commission in 1950 (seeappendix below).

(3) The very fact that in the General Assemblydifferent groups of States have already voiced somewhatcontrary opinions on the fundamental question of theextent to which the effectiveness of a reservation de-pends on the consent of other interested States, rendersthe Commission's task of formulating general rules togovern reservations to multilateral treaties a delicateone. The draft provisions relating to multilateral treatiesnow submitted to the Commission discard the principleof unanimous consent which the Commission made thebasis of its previous recommendations in 1951, andwhich Sir G. Fitzmaurice made the basis of his pro-posals in 1956; and they do not embrace any of thealternative proposals put forward by Sir H. Lauterpachtin 1953-4. Accordingly, the present Special Rapporteurfeels it incumbent upon him to explain at the outsetthe reasons which have led him to suggest a differentsolution to this problem from any previously proposedeither by the Commission or by the eminent SpecialRapporteurs who have preceded him.

(4) The situation of the Commission today withregard to this question differs in several importantrespects from its situation when it drew up its reportin 1951. First, it cannot fail to recall that its carefullyconsidered proposals based upon the principle of unani-mous consent did not commend themselves to a ma-jority of States in the Assembly, many of whichfavoured a more flexible system under which a reserv-ing State would be considered a party to a multilateraltreaty vis-a-vis any State that did not give notice ofits objection to the reservation. Secondly, the interna-tional community itself has undergone rapid expansionsince 1951, so that the very number of potential par-ticipants in multilateral treaties now seems to makethe unanimity principle less appropriate and less prac-ticable. Thirdly, ever since 12 January 1952, i.e., duringthe past ten years, the system which has been in opera-tion de facto for all new multilateral treaties of whichthe Secretary-General is the depositary has approxi-mated to the "flexible" system advocated by the largerof the two main groups of States in the General As-sembly in 1951. For the Secretariat's practice withregard to all treaties concluded after the General As-sembly's resolution of 12 January 1952 has been offi-cially stated to be as follows :55

"In the absence of any clause on reservations inagreements concluded after the General Assemblyresolution on reservations to multilateral conventions,the Secretary-General adheres to the provisions ofthat resolution and communicates to the States con-cerned the text of the reservation accompanying aninstrument of ratification or accession without passingon the legal effect of such documents, and 'leavingit to each State to draw legal consequences fromsuch communications'. He transmits the observationsreceived on reservations to the States concerned, alsowithout comment. A general table is kept up to datefor each convention, showing the reservations madeand the observations transmitted thereon by theStates concerned. A State which has deposited aninstrument accompanied by reservations is countedamong the parties required for the entry into forceof the agreement."

55 Summary of the Practice of the Secretary-General asDepositary of Multilateral Agreements (ST/LEG/7), para-graph 80.


It is true that the Secretary-General, in compliancewith the General Assembly's resolution, does not "passupon" the legal effect either of reservations or ofobjections to reservations, and each State is free todraw its own conclusions regarding their legal effects.But, having regard to the opposition of many Statesto the unanimity principle and to the Court's refusalto consider that principle as having been "transformedinto a rule of law", it seems certain that under thepresent system a State making a reservation will inpractice be considered a party to the convention bythe majority of those States which do not give noticeof their objection to the reservation.

(5) Another consideration is that under a so-calledflexible system, as under the unanimity system, theessential interests of each individual State are to avery great extent safeguarded by the two fundamentalrules:

(a) That a State which within a reasonable timesignifies its objection to a reservation is entitled toregard the treaty as not in force between itself andthe reserving State;

(b) That a State which assents to another State'sreservation is nevertheless entitled to object to anyattempt by the reserving State to invoke against it theobligations of the treaty from which the reservingState has exempted itself by its reservation.

It is true that in the case of multilateral law-makingtreaties, as Sir G. Fitzmaurice has emphasized, theequality between a reserving and non-reserving State,which is the aim of the above-mentioned rules, mayin practice be less than complete. For a non-reservingState, by reason of its obligations towards other non-reserving States, will feel bound to comply with thewhole of the treaty, including the provisions fromwhich the reserving State has exempted itself by itsreservation. Accordingly, the reserving State will bein the privileged position of being exempt itselffrom certain of the provisions of the treaty, whilehaving the assurance that the non-reserving Stateswill observe those provisions. Too much weight oughtnot, however, to be given to this point. For normallythe State wishing to make a reservation would equallyhave the assurance that the non-reserving State wouldbe obliged to comply with the provisions of the treatyby reason of its obligations to other States, even ifthe reserving State remained completely outside thetreaty. By entering into the treaty subject to its reserva-tion, the reserving State at least submits itself in somemeasure to the regime of the treaty. The positionof the non-reserving State is not made in any respectmore onerous if the reserving State becomes a partyto the treaty on a limited basis by reason of its reserva-tion. Even in those cases where there is such a closeconnexion between the provisions to which the reserva-tion relates and other parts of the treaty that thenon-reserving State is not prepared to become a partyto the treaty at all vis-a-vis the reserving State onthe limited basis which the latter proposes, the non-reserving State can prevent the treaty coming intoforce between itself and the reserving State by thesimple expedient of objecting to the reservation. Thus,the point to which Sir G. Fitzmaurice drew attentiononly appears to have real significance in cases wherethe non-reserving State would never itself have con-sented to become a party to the treaty, if it had knownthat the other State would do so subject to thereservation in question. And it may not be unreasonable

to suggest that if a State attaches so much importanceto maintaining the absolute integrity of particularprovisions its appropriate course is to protect itselfduring the drafting of the treaty by obtaining theagreement of the negotiating States to the insertionof an express clause prohibiting the making of thereservations which it considers to be so objectionable.

(6) There remain the important questions whethera more flexible system might possibly have detrimentaleffects on (i) the drafting of multilateral treaties or(ii) the integrity of the text of the treaty adoptedby the negotiating States. As to the first question,it may be doubted whether the drafting of multilateraltreaties would be sensibly affected. The treaty-textwill normally require the approval of at least a two-thirds majority of the negotiating States, and it mustcontinue to be the prime object of that majority toagree upon the best text that expert drafting canprovide. The second question, the threat to the integrityof the treaty, was emphasized by the Commissionitself in 1951 with reference to the Pan-Americansystem (A/1858, chapter II, paragraph 22) :

"The Pan-American practice is likely to stimulatethe offering of reservations; the diversity of thesereservations and the divergent attitude of Stateswith regard to them tend to split up a multilateralconvention into a series of bilateral conventions andthus to reduce the effectiveness of the former."

That a more flexible system may tend in some measureto stimulate the formulation of reservations and inthat way to reduce the full effectiveness of the textas adopted can scarcely be denied. But it seems im-portant to consider in exactly what measure the effec-tiveness of a multilateral treaty is reduced and to whatextent the reduction in effectiveness may be compen-sated for by an increase in the number of Statesparticipating in the treaty.

(7) The detrimental effect of reservations upon theintegrity of the treaty may, in the opinion of the presentRapporteur, easily be exaggerated. The treaty itselfremains the sole authentic statement of the commonagreement between the participating States. The ma-jority of reservations relate to a particular point whicha particular State for one reason or another findsdifficult to accept, and the effect of the reservationon the general integrity of the treaty is minimal; andthe same is true even if the reservation in questionrelates to a comparatively important provision ofthe treaty, so long as the reservation is not made bymo-re than one or two States. In short, the integrityof the treaty would only be materially affected if areservation of a somewhat substantial kind were tobe formulated by a number of States. This might, nodoubt, happen; but even then the treaty itself wouldremain the master agreement between the other partici-pating States. What is essential to ensure both theeffectiveness and the integrity of the treaty is that a suf-ficient number of States should become parties to it,accepting the great bulk of its provisions. The Commis-sion in 1951 said (ibid., loc. cit.) that the history of theconventions adopted by the Conference of AmericanStates "had failed to convince it that an approach to uni-versality is necessarily assured or promoted by permit-ting a State which offers a reservation to which objec-tion is taken to become a party vis-a-vis non-objectingStates". Nevertheless, a power to formulate reserva-tions must in the nature of things tend to make iteasier for some States to execute the act necessary to

Law of treaties 65

bind themselves finally to participation in the treatyand therefore tend to promote a greater measure ofuniversality in the application of the treaty. Moreover,in the case of general multilateral treaties, we seethat not infrequently a number of States have, to allappearances, only found it possible to participate in thetreaty subject to one or more reservations. Whetherthese States, if objection had been taken to their reserva-tions, would have preferred to remain outside thetreaty rather than to withdraw their reservation isa matter which is not known. But when today thenumber of the negotiating States may not be far shortof one hundred States with very diverse cultural,economic and political conditions, it seems legitimateto assume that the power to make reservations withoutthe risk of being totally excluded by the objectionof one or even of a few States may be a factor inpromoting a more general acceptance of multilateraltreaties. It may not unreasonably be thought that thefailure of negotiating States to take the necessary stepsto become parties to multilateral treaties at all is agreater obstacle to the development of internationallaw through the medium of treaties than the possibilitythat the "integrity" of such treaties may be undulyweakened by the free admission of reserving Statesas parties to them. There may also perhaps be somejustification for the view that, in the present era ofchange and of challenge to traditional concepts, therule calculated to promote the widest possible acceptanceof whatever measure of common agreement can beachieved and expressed in a multilateral treaty maybe the one most suited to the immediate needs of theinternational community.

(8) The system proposed in the draft articles formultilateral treaties which do not contain provisionsregulating the making of reservations is founded uponthe present practice in regard to multilateral treatiesof which the United Nations is the depositary; andit is comparable to the flexible system applied in theOrganization of American States. The Inter-Americansystem contemplates that the reserving State shouldgive prior notice of its intention to formulate thereservation and that this notice of intention shouldbe circulated to the other members of the Organizationof American States before any instrument of ratifica-tion, accession or acceptance is deposited. The ideais that the other member States should, as it were,be consulted before the reserving State executes theact which will make it a party to the treaty. Underthis system the reserving State can take into accountthe reactions of the other member States before finallyexecuting its act of participation in the treaty. Underthe United Nations system, on the other hand, thereis not normally any prior consultation and the reserva-tion is communicated to the other interested Statesafter the reserving State has attached its signatureto the treaty or deposited its instruments of ratifica-tion, accession or acceptance. The substantial differencebetween the two systems seems to be that under theInter-American system the reserving State has aperiod of grace during which it may modify or with-draw its reservation or even withhold its participationin the treaty altogether, whereas under the UnitedNations system the reserving State becomes a partyto the treaty immediately and, although it may certainlywithdraw its reservation altogether in the face of theobjection of other States, its power to modify thereservation, except by obtaining the fresh consent ofall the interested States, may be doubtful, since the

original reservation may have already been acceptedby some States. Nevertheless, attractive although theidea of prior consultation may be in principle, theUnited Nations system appears to be more practicalfor multilateral treaties open to participation by up-wards of one hundred States, and seems to involveless risk of serious delay in the coming into forceof such treaties.

Commentary on article 17

(9) Paragraph 1 of this article deals with the powerto formulate, that is, to propose, a reservation whensigning, ratifying, acceding to or accepting a treaty. Itaccepts the view that, unless the treaty itself, either ex-pressly or by clear implication, forbids or restricts themaking of reservations, a State is free, in virtue of itssovereignty, to formulate such reservations as it thinksfit. But the formulation of a reservation that is not oneexpressly authorized by the treaty takes the reservingState's signature, ratification or other act of consentto the treaty outside anything that has yet been con-sented to by the other States concerned. Accordinglythey, in virtue also of their sovereignty, are not boundto treat the reserving State's signature, ratification orother act of consent as valid against themselves, so thatthe effect of the formulation of the reservation dependson the subsequent reactions of each of the other in-terested States. The general principles are containedin paragraphs 1 (a) and 2 (b) of the article. Para-graph 1 (b) deals with the exceptional case of an attemptto formulate a reservation of a kind which is actuallyprohibited or excluded by the terms of the treaty.Here the formulation of the reservation is inadmissibleunless the prior consent of the other interested Stateis obtained. The distinction is that, when a reservationis formulated which is not prohibited by the treaty,the other States are called upon to indicate whetherthey accept or reject it but, when the reservation isone prohibited by the treaty, they have no need to doso, for they have already expressed their objectionto it in the treaty itself.

(10) Paragraph 2 (a) , which lays down as a prin-ciple that States, in formulating a reservation not ex-pressly authorized, should have regard to the com-patibility of the reservation with the object and purposeof the convention, has been included in the article witha certain amount of hesitation. This was, of course, theprinciple applied by the International Court in theReservations to the Genocide Convention case as thecriterion for determining whether a reserving Statecpn be still regarded as a party to the Conventionnotwithstanding the fact that its reservation has beenobjected to by one or more States. Applied in thisway as the test of a State's right to be considered aparty to the treaty, the principle met with strongcriticism in some quarters, and not least in the Com-mission itself in 1951. For it was said—and rightly—that in any j^iven case the question of the compatibilityor incompatibility of a particular reservation with theobject and purpose of the treaty depends to a con-siderable extent on the conclusions reached as to exactlyhow much of the subject-matter of the treaty is to beregarded as representing the "object and purpose of thetreaty" and as to exactly which provisions are to beregarded as material for the achievement of that "objectand purpose". But these are questions on which opin-ions, and especially the opinions of the parties them-selves, may well differ, so that the principle appliedby the Court is essentially subjective and unsuitable


for use as a general test for determining whether areserving State is or is not entitled to be considereda party to a multilateral treaty. The test is one whichmight be workable if the question of "compatibility withthe object and purpose of the treaty" could always bebrought to independent adjudication; but that is not thecase, and the general view seems to be that the prin-ciple of "compatibility with the object and purpose"cannot be adopted as the general criterion for determin-ing the status of a reserving State as a party to thetreaty. The Special Rapporteur believes these criticismsof the Court's criterion to be well founded, and inarticles 18 and 19 proposes that the Commission shouldadopt instead the flexible Inter-American system, whichoperates on the basis of the purely objective criterionof each State's consent or objection to the particularreservation in question.

Nevertheless, the Court's criterion of "compatibilitywith the object and purpose of the convention" doesexpress a valuable concept to be taken into accountboth by States formulating a reservation and by Statesdeciding whether or not to consent to a reservationthat has been formulated by another State. Moreover,some representatives in the Sixth Committee and Gen-eral Assembly thought that the Court's criterion couldbe given a more general application. The Special Rap-porteur, although also of the opinion that there is valuein the Court's principle as a general concept, feels thatthere is a certain difficulty in using it as a criterion ofa reserving State's status as a party to a treaty in com-bination with the objective criterion of the acceptanceor rejection of the reservation by other States. First,the principle of consent would lose much of its valueas a simple and objective test, if it could be overriddenor qualified by reference to another subjective andindeterminate criterion. Secondly, in some cases thetwo criteria might even give inconsistent results. Ac-cordingly, the Special Rapporteur has tentatively in-serted in paragraph 2 (a) for the Commission's con-sideration a provision stating the Court's concept as ageneral principle to be taken into account, without how-ever attaching any sanction to it or giving it anyexpress place in articles 18 and 19, where the objectivecriteria of "consent" and "objection" are adopted asthe tests for determining the legal relations between areserving State and other parties to the treaty. Para-graph 2 (b) needs no comment.

(11) Paragraph 3 (a) deals with the modalities offormulating reservations and does not appear to requirecomment. Paragraph 3 (&), which covers the specialcase of a reservation attached to the signature of atreaty which is subject to ratification (or acceptance),is perhaps more controversial. The present draft takesthe line that the reservation will be presumed to havelapsed unless some indication is given in the instru-ment of ratification that it is maintained. The HarvardResearch Draft (article 15 (d)) put the rule in theopposite way, laying down that ratification wouldautomatically be considered to be ratification of thetreaty subject to the reservation. The authors of theHarvard Research Draft admitted that some writers(e.g. Fauchille) considered that the reservation mustbe repeated, but argued that such a rule would beinconsistent with the theory that a reservation madeat the time of signature forms part of the text asadopted. On the other hand, in 1959 the Inter-American Council of Jurists recommended a rule whichwould require the reservation to be "reiterated" beforethe deposit of the instrument of ratification, although

the United States delegation found that rule to be"unacceptable in the form in which it has been drafted".Clearly, different opinions may be held as to whatexactly is the existing rule on the point, if indeed anyrule exists at all. But the Special Rapporteur suggeststhat a rule requiring some form of confirmation of thereservation in the instrument of ratification is desirablein the interests of certainty, and is more in harmonywith the modern concept of the ratification process asa confirmation not of the signature but of the treatythan the rule proposed in the Harvard Research Draft.

(12) Paragraph 4 prescribes that reservations mustbe communicated to all the other interested States andcontains provisions in regard to the procedure to befollowed in making such communications.

Paragraph 5 has been inserted to cover a point towhich attention is drawn in paragraph 81 of the Sum-mary of the Practice of the Secretary-General ( S T /LEG/7) , where it is said:

"If the agreement should be a constitution estab-lishing an international organization, the practicefollowed by the Secretary-General and the discussionsin the Sixth Committee show that the reservationwould be submitted to the competent organ of theorganization before the State concerned was countedamong the parties. The organization alone would becompetent to interpret its constitution and to deter-mine the compatibility of any reservation with itsprovisions."Paragraph 6 declares the absolute right of a State

to withdraw a reservation unilaterally, even when thereservation has been accepted by other States.


(13) Paragraph 1 of this article lays down the fun-damental principle that, by attaching a reservation toits signature, ratification, accession or acceptance, aState is in effect making a new proposal which mustbe assented to by the other State before any contractualnexus can arise between them. Paragraph 2 (a) recitesthe ways in which express consent to a reservation maybe given in advance by the insertion in the treaty ofan express authority to make the particular reservationin question.

(14) Paragraph 3 deals with what may be a morecontroversial question, namely, the question of impliedconsent to a reservation. That the principle of pre-suming consent to a reservation from absence of ob-jection has been admitted into State practice cannotreally be doubted; for the Court itself in the Reserva-tions to the Genocide Convention case spoke of "verygreat allowance" being made in international practicefor "tacit assent to reservations". If the Commission inits 1951 report did not specifically refer to consentbeing presumed from absence of objection, its proposalsinvolved the application in some measure of the prin-ciple of tacit consent. And the drafts of both Sir H.Lauterpacht and Sir G. Fitzmaurice provided that theconsent of a State should be presumed conclusivelyafter a period of three months, if no objection has beenraised to the reservation. Furthermore, a rule specificallystating that consent will be presumed after a periodof three, or in some cases six, months is to be foundin some modern conventions ;56 while other conventions

56 E.g. International Convention to Facilitate the Importationof Commercial Samples and Advertising Material, 1952 (90days); and International Convention for the Suppression ofCounterfeiting Currency, 1929 (6 months).

Law of treaties 67

achieve the same result by limiting the right of ob-jection to a period of three months.67 Again, in 1959,the Inter-American Council of Jurists58 recommendedthat, if no reply had been received from a State to whicha reservation had been communicated, it should bepresumed after one year that the State concerned hadno objection to the reservation. On the other hand,it is stated in the Final Act of that Council that theUnited States delegation made a reservation on thispoint, saying that it considered the recommended ruleto be "undesirable".59

(15) It has, of course, to be admitted that theremay be a certain degree of rigidity in a rule under whichtacit consent will be presumed after the lapse of afixed period. It is also true that, under the "flexible"system now proposed, the acceptance or rejection bya particular State of a reservation made by anotherprimnrily concerns their relations with each other, sothat there may not be the same urgency to determinethe status of a reservation as under the system ofunanimous consent. Nevertheless, it seems very unde-sirable that a State, by refraining from making anycomment upon a reservation, should be enabled moreor less indefinitely to maintain an equivocal attitudeas to the relations between itself and the reserving Stateunder a treaty of universal concern. A State participat-ing in the adoption of the text of a plurilateral ormultilateral treaty must be deemed to be aware thatunder generally accepted treaty-making practice Statesare free to put forward reservations of their own whenfinally binding themselves to the treaty, provided thatthe reservation in question is not one prohibited by thetreaty. This being so. good faith in the application ofthe procedural provisions of the treaty, and especiallythose dealing with participation in the treaty, wouldseem to require that States adopting a plurilateral ormultilateral treaty should take note of the formulationof reservations and voice any objection that they mayhave to the reservation with reasonable expedition inorder that the position of the reserving State under thetreaty may be clarified. And, on the same basis, if aState voices no objection or hesitations in regard to areservation, it seems reasonable to hold that after anappropriate interval the State shall be presumed tohave acquiesced in the participation of the reservingState in the treaty subject to the reservation. Nor doesit seem possible to make this presumption dependenton some positive act of recognition of the reservingState as a party to the treaty. Under modern practiceit is the depositary alone who deals with each Statein regard to the procedural clauses of the treaty, andthe risk would be that a Slate which had kept silent inregard to another State's reservation would only takea clear position in the matter after a dispute had arisenbetween it and the reserving State. It is for reasonssuch as these that it has been thought advisable to laydown in paragraph 3 (b) of article 18 that if a Statehas voiced no objection to a reservation during a periodof twelve months, it shall be presumed to have con-sented to the reservation.

(16) Seeing that in a number of treaties States havefound it possible to accept periods as short as three orsix months, the question may be asked why it has

5 7 E.g. the Conventions on the Declaration of Death of Miss-ing Persons, 1950, and on the Nationality of Married Women,1957 (both 90 days).

58 Final Act of the Fourth Meeting of the Inter-AmericanCouncil of Jurists, p. 29.

so Ibid., p. 86.

been thought necessary to propose a period of twelvemonths in the present draft. But there are, it is thought,good reasons for proposing the adoption of the longerperiod. First, it is one thing to agree upon a shortperiod for the purposes of a particular treaty whosecontents are known, and a somewhat different thing toagree upon it as a general rule applicable to everytreaty which does not lay down a rule on the point.States may, therefore, find it easier to accept a generaltime limit for voicing objections, if a longer period isproposed. Secondly, as already noted, the Inter-American Council of Jurists in 1959 appears to havefavoured the longer period here proposed. Again, theremay even be cases where a Government desires to bringanother State's reservation before the competent organof the State in connexion, perhaps, with the State'sown decision to ratify the treaty. It seems prudent,therefore, to have a long rather than a short periodfor the general rule. Furthermore, the arguments infavour of a time limit do not appear to be so strongunder the flexible system for reservations to multilateraltreaties in the case of a State which is not already aparty to the treaty; for by delaying a decision it is notprejudicing the position of the reserving State vis-a-visany State. Accordingly, it seems possible in such a caseto lessen the rigidity of the rule by allowing an objectionmade on ratifying, or acceding to, the treaty to beeffective, notwithstanding the expiry of the twelvemonths' period. This qualification of the rule is notpossible in the case of plurilateral treaties because therethe delay m taking a decision does place in suspense thestatus of the reserving State vis-a-vis all the Statesparticipating in the treaty.

()7) Paragraph 3 (c) covers the case of a Stateinvited to become a party to a treaty by accession orotherwise at a date when certain States have alreadybecome parties or presumptive parties to it subject toreservations. One alternative is to hold that a Stateresponding to such an invitation must take the treatyand the reservations previously attached to the treatyby some States as it finds them; in other words, tohold that the newly invited State shall in any eventbe bound by reservations formulated prior to its par-ticipation in the treaty. Tn the case of plurilateral trea-ties, this appears to be the rule applied. For a reserva-tion to a plurilateral treaty requires the unanimousconsent of the participating States and, once this hasbeen obtained, it becomes established as an admittedreservation attached to the treaty. It is, therefore,perfectly logical that a newly invited State shouldonly be able to participate in the treaty on the basisof accepting it as already modified with respect to thereserving State by the admission of the reservation;and this is the principle suggested for plurilateraltreaties in paragraph 3 (c). Quite different considera-tions, on the other hand, apply to multilateral treaties,if the "flexible system" of determining the admissibilityof reservations is adopted. Under this system corporateacceptance of reservations by the whole body of par-ticipating States is not necessary and the admissibilityof n reservation is a matter which concerns erch Stateindividually; moreover, the consent of any one Stateto a particular reservation is limited m its effects to therelations between that State and the reserving State.Accordingly, there does not seem to be any good reasonunder this system for a newly invited State to bedeprived of all right to object to reservations formulatedprior to its participation in the treaty. On the contrary,the principle of equality seems to require that the newly


invited State should have that right and the appropriatetime for it to exercise that right would appear to bewhen it executes the act by which it becomes a partyto the treaty. It follows that, if the newly invited Statedoes not then notify its objection to previously formu-lated reservations, it should be presumed to haveassented to them.

(18) Paragraph 4 sets out the basic rules concerningthe States whose consents are required for the admissionof a reservation, and, in considering these rules, it isnecessary to bear in mind the principle in paragraph3 (b) that consent will be implied from the absence ofany objection during a period of twelve months. It isalso to be noted that the rules set out in this para-graph concerning plurilateral and multilateral treatiesare subject to the proviso that another rule is notapplicable either under the treaty itself or under theconstitution or usages of an international organization.One object of this proviso is to safeguard any suchspecial usages as those applicable in the Organizationof American States.

In the case of bilateral and plurilateral treaties thebasic rule laid down is that a reservation not authorizedby the treaty must have the consent of all the otherStates which are or are entitled to become parties tothe treaties. There is, however, an exception to thisrule in the case of plurilateral treaties where it is sug-gested de lege jerenda that, if four years have elapsedsince the date of the adoption of the treaty and a Statehas not entered into any definitive commitment to bebound by the treaty, the consent of that State shouldbe dispensed with. The Commission recognized in 1951(A/1858, chapter II) that it would be an abuse if asignatory State were to object to another State's reser-vation and then refrain from entering into any com-mitment itself to be bound by the treaty. The rule thatthe Commission suggested was that an objection shouldbe disregarded if after the expiry of twelve monthsthe objecting State had not itself ratified or otherwiseaccepted the treaty. Sir G. Fitzmaurice, on the otherhand, proposed the following rule in article 39, para-graph 1 (ii) of his draft articles (A/CN.4/101) : "Ifthe treaty has been in force for not less than five years,the reservation need only be circulated to and be metwith absence of objection on the part of the Statesactually parties to the treaty at the date of circulationso long as these number not less than 20 per cent ofthe States originally entitled to become parties." Thisrule, which would only operate five years after thetreaty had already been in force, seems to be somewhattoo remote in its application to provide a satisfactoryanswer to the problem. On the other hand, the generalidea in it that, after the treaty comes into force, theright to pronounce upon the validity of reservationsshould sooner or later pass exclusively to the Stateswhich have committed themselves to participation inthe treaty, seems to be valid. The Special Rapporteursuggests that both the principle proposed by the Com-mission in 1951 and the idea in Sir G. Fitzmaurice'sdraft should be retained and both elements will befound in paragraph 4 (b) (i) of the present article.The rule suggested by Sir G. Fitzmaurice has beenconsiderably modified, however, by reducing the periodto four years60 and by making it operate from thedate of the adoption of the text, not that of the entryinto force of the treaty. The resulting position under

60 This is the same period as that suggested in the analogouscase of the right of States to a voice in deciding whether toinvite new States to accede to the treaty (see article 13 above).

the present draft would be that (i) before the end ofthe four-year period any State could lodge an objection,which would be effective to exclude the reserving Statefrom participation in the treaty; provided that theobjecting State either had already committed itself toparticipation or proceeded to do so within twelvemonths; and (ii) this would still be the position afterthe end of the four-year period until the treaty cameinto force; but (iii) if and when the treaty came intoforce the right to object—after the expiry of the fouryears—would be confined to the actual parties.

(19) Paragraph 4 (b) (ii) lays down the basicprinciples of the "flexible" system of admitting reserva-tions to multilateral treaties, namely, that (a) it is amatter for each State individually to consent or objectto a reservation, and (b) the consent of any individualState to a reservation makes the reserving State a partyto the treaty at least zvith respect to the consentingState.

(20) Paragraph 4 (c) corresponds to paragraph 5of article 17, and restates, in the context of the consentsnecessary for the admission of a reservation, the rulethat the admission of a reservation to a constituentinstrument of an international organization is a matterfor the decision of the organization concerned.

(21) Paragraph 5 sets out the rules concerning thelegal effects of a reservation, which has been estab-lished as admissible under the provisions of the presentarticle once the treaty is in force. These rules, whichappear not to be disputed, follow directly from theconsensual basis of treaty regulations. A reservationoperates reciprocally between the reserving State andany other party to the treaty, so that both are exemptedfrom the reserved provisions in their mutual relations.But it has no application as between the other parties,since they have not made it a term of the agreementbetween them.


(22) The provisions of this article are for the mostpart a reflex of provisions contained in article 18,and do not therefore need further explanation. Thus:

Paragraph 1 (a) corresponds to paragraph 1 ofarticle 18

Paragraph 1 (b) corresponds to paragraph 3 (c) ofarticle 18

Paragraph 2 corresponds to paragraphs 3 and 4 ofarticle 17

Paragraph 3 (a) reflects paragraph 3 (b) of article 18Paragraph 3 (b) (i) reflects the first proviso in para-

graph 4 (b) (i) of article 18Paragraph 3 (b) (ii) reflects the second proviso in

paragraph 4 (b) (ii) of article 18Paragraph 4 reflects paragraph 4 of article 18Paragraph 5 corresponds to paragraph 6 of article 17.

Chapter HI, The entry into force and registrationof treaties

ARTICLE 20. MODE AND DATE OF ENTRY INTO FORCE

1. (a) A treaty enters into force in such mannerand on such date or event as the treaty itself mayprescribe, provided always that not less than two Stateshave become mutually bound by the treaty in accord-ance with the rules laid down in the foregoing articles.

Law of treaties 69

(&) Where the treaty itself does not lay down anyrules for its coming into force and where no other ruleis applicable under the constitution or usages of aninternational organization, the entry into force of thetreaty shall be determined by reference to the provisionsin the following paragraphs of the present article.

2. (a) Where a bilateral or plurilateral treaty isone which under the provisions of chapter II is tobecome binding upon signature alone, it shall be deemedto come into force :

(i) Upon the date of signature, if it shall havebeen signed upon that date by all the Stateswhich adopted it; and

(ii) If not, then upon the date when the last of thesignatures of the States which adopted thetreaty shall have been affixed to the treaty.

(b) Where a bilateral or plurilateral treaty is onewhich under the provisions of chapter II is subject tosubsequent ratification or acceptance and lays downthat ratification or acceptance is to be effected by aspecified date, it shall be deemed to come into forceupon that date provided that:

(i) If the treaty indicates the number of Stateswhose ratifications or acceptances shall be nec-essary to bring the treaty into force, the re-quired number of instruments of ratificationor acceptance shall have been deposited bythat date;

(ii) If the treaty contains no indications as to thenumber of ratifications or acceptances required,all the States which adopted the treaty shallhave deposited their instruments of ratificationor acceptance by that date.

(c) In a case similar to that in sub-paragraph (b)but where the treaty does not lay down that the ratifi-cations or acceptances are to be effected by a specifieddate, it shall be deemed to come into force:

(i) If ratifications are to be exchanged, then uponthe date of the exchange of ratifications;

(ii) If the ratifications or acceptances are to bedeposited, then upon the date of the depositof the last of the required instruments ofratification or acceptance; and

(Hi) If no provision has been made either for theexchange or for the deposit of ratifications oracceptances, then upon ratification or acceptanceby all the States which adopted the treaty andthe notification by each State to the other ofsuch ratification or acceptance.

3. (a) Where a multilateral treaty is one whichunder the provisions of chapter II is to become bindingupon signature alone, the treaty shall be deemed tocome into force:

(i) Upon the date of signature, if it shall have beensigned upon that date by all the States whichadopted it;

(ii) If not, then upon the date when the signaturesof not less than one-fourth of the States whichadopted the treaty shall have been affixed to thetreaty.

(b) Where a multilateral treaty is one which underthe provisions of chapter 2 is subject to subsequentsignature, ratification, accession or acceptance andprovides for any of these acts to take place by a spe-cified date, it shall be deemed to come into force:

(i) Upon the date specified, if not less than one-fourth of the States which adopted the treaty

shall have affixed their signatures or, as thecase may be, deposited their instruments ofratification, accession or acceptance by that date;and

(ii) If not, then upon the first date thereafter whennot less than one-fourth of those States shallhave executed the act or acts necessary toqualify them to be parties to the treaty,

(c) In a case similar to that in sub-paragraph (&)but where the treaty does not lay down that the signa-tures, ratifications, accessions or acceptances are to beeffected by a specified date, it shall be deemed to comeinto force upon the first date when not less than one-fourth of the States which adopted the treaty shall haveexecuted the act or acts necessary to qualify them tobe parties to the treaty.

4. If a treaty provides that it shall be subject toratification or acceptance and at the same time specifiesa fixed date for its entry into force, it shall enter intoforce:

(i) Upon the specified date, if the ratifications oracceptances required under the treaty have beencompleted; and

(ii) If not, so soon after that date as such ratifica-tions or acceptances have been completed.

5. A treaty shall enter into force for any particularState when it shall have executed an act definitivelyqualifying it to be a party to the treaty and either

(i) The treaty is already in force; or(ii) The treaty is brought into force by the execution

of the act which definitively qualifies the Statein question to be a party to the treaty.

6. Notwithstanding anything contained in the pre-ceding paragraphs of this article, a treaty may prescribethat it shall come into force provisionally on signatureor on a specified date or event, pending its full entryinto force in accordance with the rules laid down inthis article.

7. Nothing in the present article is to be understoodas precluding the possibility of the provisions of a treatybeing brought into force by the subsequent agreementor subsequent acts of the States concerned.

Commentary(1) This article deals with the conditions which

the treaty itself must satisfy before it can be consideredas having come into force, and the conditions underwhich each individual State qualifies to be consideredan actual party to the treaty. The basic rule, set outin paragraph 1 (a), is that it is in the hands of thenegotiating States themselves to determine the modeand date of the entry into force of the treaty. The onlypoint that need be discussed is the proviso that,if the parties themselves have not fixed the numberof the States whose definitive commitment to be boundby the treaty is necessary to bring it into force, theremust as a minimum be two States mutually bound toeach other under the treaty. Clearly, unless this is sothe treaty, as such, can have no application; but theproviso, as it has been formulated in the text, doesraise the problem of reservations. If one or other ofthe first two States has subscribed to the treaty subjectto a reservation, can the treaty be said to come intoforce until it is clear that no objection is being raisedto the reservation? The Secretary-General's practicefor multilateral treaties is to treat a signature, ratifica-tion, accession or acceptance subject to a reservation as


equivalent to a full signature, ratification, etc., for thepurpose of clauses which specify a given number ofsignatures, ratifications, etc., as a condition for the entryinto force of the treaty. It may not therefore be fullyconsistent with this practice to provide that there mustat least be two States mutually bound under the treatybefore it can come into force. But it seems necessary tostate the minimum rule in this way in order to avoidthe meaningless situation of having the treaty in forcebut no two States able to invoke its provisions againsteach other. No doubt, it might be possible to regardeach State as having entered into a unilateral engage-ment under the treaty, even although they were notmutually bound; but that would hardly seem to bea case of a treaty having come into force; see Hudson,International Legislation, vol. 1, p. liv.

As to paragraph 1 (b), the only point that needbe mentioned is the reference to the constitutionalprovisions or usages of an international organization.This is intended to safeguard and underline the char-acter of a regional or other group system such as theInter-American usages in regard to treaties concludedwithin the Organization of American States.

(2) Paragraph 2 covers where a bilateral or pluri-lateral treaty makes no provision for its entry intoforce. Sub-paragraph (a) concerns treaties not subjectto ratification. Here, it seems to be generally acceptedthat the treaty is to be presumed to come into forceupon the date of signature and, if the signatures arenot all affixed upon the same date, then upon thedate of the last signature; see Harvard Research Draft,pp. 795-6.

Sub-paragraph (b) concerns cases where the treatyis subject to ratification and specifies a date by whichratification is to take place. The rules stated in thetext are based on those proposed de lege ferenda bySir G. Fitzmaurice in article 41 (3) of his draft (A/CN. 4/101). It appears to be a reasonable presumptionin these cases that the entry into force of the treatywas intended to turn upon the date specified forratification. The present text, however, differs fromthat of Sir G. Fitzmaurice in two respects. His textwas designed to cover multilateral as well as plurilateraltreaties, and no doubt it was for this reason that hesought to mitigate the rule of unanimity by proposingthat, in the absence of indications in the treaty thatunanimity is required, it should be enough to obtainthe ratifications or acceptances of two-thirds of theparticipating States. The present draft deals quitedifferently with multilateral treaties in the next para-graph, and it seems correct in the case of plurilateraltreaties to lay down the classical rule of unanimityexcept where the treaty itself provides otherwise. Asalready mentioned, special usages, such as those ofthe Inter-American system, are excepted in paragraph1 (*).

(3) Paragraph 2 (c) deals with the case of a treatywhich is subject to ratification or acceptance but issilent as to the date on which ratification or acceptanceis to take place. Here the general view seems to bethat the Contracting States must be presumed to haveintended the treaty to come into force upon the exchangeof ratifications or acceptances, if this takes place, and,if not, upon the deposit of the last of the requiredinstruments; see Harvard Research Draft, p. 796, andarticle 41 (2) of Sir G. Fitzmaurice's draft.

(4) Paragraph 3 covers cases where a multilateraltreaty makes no provision for its entry into force

and sets out rules analogous to those given in para-graph 2 for plurilateral treaties. The chief differenceis as to the quorum—the minimum number of Statesthat must be bound—'necessary before the treaty cancome into force, when the treaty itself is silent uponthe point. In the case of multilateral treaties the ruleof unanimity must surely be regarded as out of thequestion. To presume that the Contracting Statescontemplated that all must be bound before the treatycould enter into force would almost be to presume thatthey intended it never to come into force. One possibilitywould be to presume that the Contracting States in-tended the treaty to come into force as soon as notless than two States had become mutually bound underthe treaty. It could be urged that a large numberof multilateral treaties fix a definite number, such astwenty, and that, if nothing is said in the treaty asto the number, the Contracting States must have beencontent that the treaty should come into force for eachState as it subscribed to the treaty. But cases alsoexist, e.g. the Geneva "Red Cross" Conventions of1949,61 where the Contracting States have specificallyprovided that the treaty shall come into force afternot less than two States have committed themselvesto the treaty. In truth, the varied treaty practice hardlyjustifies the making of any clear presumptions as tothe intentions of Contracting States, and all that seemspossible is for the Commission to propose what itthinks to be a reasonable residuary rule. A glanceat the treaty clauses collected on pages 21-38 of theHandbook of Final Clauses (ST/LEG/6) will revealthe extent of the variations in the "entry into force"clauses of modern treaties, and that the different typesof clause cannot easily be attributed to definite cate-gories of treaties. Clauses requiring between twentyand twenty-six States to have committed themselvesare quite common, but clauses fixing a smaller numberare found, and even clauses bringing the treaty intoforce as each State singly commits itself to the treaty.The Commission, in formulating a single broad rule,may think it necessary to take a conservative viewof the probable intentions of States on this point.The figure twenty represents today between a fourthand a fifth of the number of States likely to adopt atreaty at a large multilateral conference, and the Spe-cial Rapporteur suggests that the Commission couldadopt as a reasonable general rule a quorum of eitherone-fourth or one-fifth, and in paragraph 3 of thepresent article has tentatively adopted one-fourth asthe minimum number for multilateral treaties.

(5) Paragraph 4 deals with a case which may some-times arise through inadvertence in drafting and towhich attention is drawn in the Harvard ResearchDraft (pp. 791-2). The authors of that draft wouldseem to be clearly right in saying that the requirementof ratification (or acceptance) must prevail over thefixing of the date, if that requirement turns out notto have been satisfied before the date fixed by the treatyfor its entry into force.

(6) Paragraph 5 merely declares the obvious rulethat for any particular State to be subject to the rightsand obligations of a treaty, two conditions must besatisfied: (a) the treaty itself must be in force as atreaty and (b) it must be in force with respect to thatparticular State.

6 1 These Conventions were to come into force "six monthsafter not less than two instruments of ratification have beendeposited".

Law of treaties 71

(7) Paragraph 6 seeks to cover what in modernpractice is a not infrequent phenomenon—a treatybrought into force provisionally, pending its full entryinto force when the required ratifications or acceptanceshave taken place. Sir G. Fitzmaurice covered thispoint exclusively in article 42 of his draft as part ofthe "legal effects" of entry into force, but it seemsequally to have a place in the present article. Fora treaty clause having this effect is, from one aspect,a clause relating to a mode of bringing a treaty intoforce. Accordingly, this aspect is mentioned here andthe "legal effects" of provisional entry into force isdealt with in the next article.

(8) Sir G. Fitzmaurice included in his draft afurther provision (paragraph 5) worded as follows:"A treaty may come into force whatever its terms,if the signatories proceed to execute its terms, if thesignatories proceed to execute it, pro tanto, if it isput into application between a limited number of them".The present Special Rapporteur hesitates to includethis provision in the draft as a positive rule. So muchmay depend upon the provisions and circumstancesof the treaty and the nature of the acts which are reliedupon as establishing that it has been brought intoforce by the parties outside the procedures contemplatedin the treaty. Furthermore, there may be juridicalproblems as to whether a particular case is really one ofthe entry into force of the original treaty or of somefresh form of agreement. The Special Rapporteur hastherefore inserted tentatively for consideration a nega-tive clause simply reserving the point.

ARTICLE 21. LEGAL EFFECTS OF ENTRY INTO FORCE

1. (a) On entering into force a treaty shall auto-matically become binding upon all the States partiesto the treaty.

(b) The rights and obligations contained in thetreaty shall accordingly come into operation for eachState at once upon its becoming a party to it, unlessthe treaty itself shall provide that all or any of thoserights or obligations shall only come into operationupon a future date.

(c) Unless the treaty itself shall expressly providefor the retrospective operation of all or any of itsclauses, the rights and obligations laid down in thetreaty shall come into operation for each party onlyfrom the date of the entry into force of the treatywith respect to that particular party.

2. (a) When a treaty lays down that it shall comeinto full force provisionally upon a certain date or event,the rights and obligations contained in the treaty shallcome into operation for the parties to it upon that dateor event and shall continue in operation upon a pro-visional basis until the treaty enters into full force inaccordance with its terms.

(b) If, however, the entry into full force of the treatyis unreasonably delayed and, unless the parties haveconcluded a further agreement to continue the treatyin force on a provisional basis, any of the parties maygive notice of the termination of the provisional applica-tion of the treaty; and when a period of six monthsshall have elapsed, the rights and obligations containedin the treaty shall cease to apply with respect to thatparty.

Commentary

(1) Paragraph 1 (a) simply declares the basic rulethat the entry into force of the treaty automatically

makes it binding upon the parties. There is a certainimportance in stating this obvious principle, because,even although the treaty itself may postpone the op-eration of the rights or obligations in the treaty, theposition of a State after the entry into force of thetreaty is radically different from what it was beforethat event. Prior to the entry into force of the treaty,as has already been noticed in article 9, a State may beunder certain obligations of good faith to refrain fromacting in such a way as to frustrate the objects ofthe treaty. But after entry into force it is no longermerely a question of good faith but of an obligationunder the treaty itself.

(2) Paragraph 1 (b) also deals with an obviouspoint, namely that there may be a difference betweenthe entry into force of the treaty and the operation ofthe rights and obligations laid down in it.

(3) Paragraph 1 (c) deals with what is generallyconsidered today to be an unquestionable principle,though even as late as 1935 it was regarded in theHarvard Research Draft as requiring extended dis-cussion. This principle is that a treaty has no retroactiveeffects unless the treaty expressly so provides; andthat this principle obtains equally in cases where thetreaty was signed subject to ratification. It is nowbeyond doubt that ratification is ratification of thetreaty itself and not merely a confirmation of a previousacceptance of the treaty.

(4) Paragraph 2 seeks to formulate the legal effectsof the provisional entry into force of a treaty. Clearlythe rule in 2 (a) follows simply from the provisionalnature of the entry into force. Sub-paragraph (b) is putforward de lege ferenda for the Commission's considera-tion. It seems evident that if the necessary ratificationsor acceptances etc. are unreasonably delayed so that theprovisional period is unduly prolonged, there must comea time when States are entitled to say that the provi-sional application of the treaty must come to an end.Sir G. Fitzmaurice states this as a rule (commentaryon his article 42, paragraph 1). It seems desirable,however, for the Commission to try and give a littlemore definition to the rule, and perhaps to make with-drawal from the provisional application of the treatyand orderly process. The suggestion in the draft isthat at least six months' notice ought to be given beforewithdrawal becomes effective. The draft also suggeststhat withdrawal would only affect the particular partyconcerned. But this may be a matter for furtherexamination.

ARTICLE 22. T H E REGISTRATION AND PUBLICATION

OF TREATIES

1. Every treaty entered into after 24 October 1945,the date of the coming into force of the Charter of theUnited Nations, by any Member of the United Nationsor by any State party to the present articles, shall assoon as possible be registered (or filed and recordedif appropriate) with the Secretariat of the UnitedNations and published by it, if such registration andpublication have not already been effected.

2. Registration shall not take place until the treatyhas come into force between two or more of the partiesthereto.

3. (a) Registration of a treaty shall be effectedex officio by the United Nations where:

(i) The United Nations is itself a party to thetreaty; or


(ii) The United Nations has been specificallyauthorized by the treaty to effect registration; or

(iii) The United Nations is the depositary of amultilateral treaty.

(b) A treaty may be registered by a specializedagency where:

(i) The constituent instrument of the specializedagency provides for such registration;

(ii) The treaty has been registered with the spe-cialized agency pursuant to the terms of itsconstituent instrument; or

(iii) The specialized agency has been authorized bythe treaty to effect registration.

(c) A treaty may also be registered by any partythereto.

4. (a) The registration of a treaty either by theUnited Nations or by a specialized agency in accord-ance with sub-paragraphs (a) and (b) of the precedingparagraph relieves all the parties to the treaty of theobligation to register.

(b) The registration of a treaty by a party to thetreaty in accordance with sub-paragraph (c) of thepreceding paragraph relieves all other parties to thetreaty of the obligation to register.

5. When a treaty has been registered with theSecretariat of the United Nations, a certified statementregarding any subsequent action which effects a changein the parties thereto, or the terms, scope or applicationthereof, shall also be registered with the Secretariatof the United Nations.

6. No party to any treaty entered into after24 October 1945, which has not been registered inaccordance with the provisions of the present article,may invoke that treaty before any organ of the UnitedNations.

Commentary(1) Articles 22 and 23 recall the obligations con-

tained in Article 102 of the Charter concerning theregistration and publication of treaties and the regula-tions adopted by the General Assembly in its resolutionof 14 December 194662 for implementing those obliga-tions. Neither Professor Brierly nor Sir G. Fitzmauriceincluded any provisions concerning the registrationand publication of treaties in their draft articles^ cov-ering the framing and conclusion of treaties. Sir H.Lauterpacht, on the other hand, included in the finalsection of his code (A/CN.4/63)—after sections cov-ering "reality of consent" and "legality of object"—abrief article (article 18) stating that "Treaties enteredinto by Members of the United Nations subsequent totheir acceptance of the Charter of the United Nationscannot be invoked by the parties before any organ ofthe United Nations unless registered, as soon as pos-sible, with the Secretariat of the United Nations". More-over, although his actual article merely restated in acombined form the provisions found in paragraphs 1and 2 of Article 102 of the Charter, Sir H. Lauterpachtsuggested in his commentary that the Commissionshould consider whether "it ought not, in the exerciseof its function to develop international law, to formulatea rule both more comprehensive and more explicitthan that formulated in the present article on the basis

«2 The regulations were adopted by General Assembly resolu-tion 97 (I) of 14 December 1946 and amended by GeneralAssembly resolutions 364 B (IV) of 1 December 1949 and482 (V) of 12 December 1950.

of Article 102 of the Charter". And the rule he sug-gested would have run as follows: "A treaty concludedby a Member of the United Nations shall be void ifnot registered with the United Nations within sixmonths of its entry into force."

(2) The present Special Rapporteur considers thatthe registration and publication of treaties should finda place in the draft articles on the law of treaties andthat the appropriate part of the draft in which to includethem is the present chapter. It is true that, if regardis had primarily to the sanction in paragraph 2 ofArticle 102 of the Charter, registration may seem tobe concerned with the question of the enforceability oftreaties. But the substantive obligation of registrationis one which, in point of time, is closely associated withthe conclusion and entry into force of treaties. Thus,Article 102 requires registration to be effected "assoon as possible", while the regulations adopted by theGeneral Assembly state that registration is to be effected"when the treaty has come into force between two ormore parties thereto". It seems to the Special Rap-porteur that the substantive obligation rather than thesanction ought to determine the placing of registrationof treaties in the draft articles, and that the above-mentioned provisions of the Charter and the Assembly'sregulations would justify the Commission in placing itimmediately after "entry into force", either in the sameor in a separate chapter.

(3) The Special Rapporteur doubts whether it iseither desirable or necessary for the Commission topropose that the sanction for non-registration of treatiescontained in Article 102 of the Charter should be mademore stringent. But in any event the rule suggested bySir H. Lauterpacht involves a direct amendment of anexpress provision of the Charter, and its inclusion inthe present articles seems for that reason alone to bealtogether out of the question. The two articles now pro-posed for the Commission's consideration incorporatethe substance of the provisions of the two paragraphsof Article 102 of the Charter and articles 1-7 of theGeneral Assembly's regulations with only such minordrafting adjustments as are necessary to fit them intothe different context of the present articles. The ideaof the Special Rapporteur has been to include thoseprovisions of Article 102 and the regulations whichtouch the rights and obligations of States and organi-zations in regard to the registration and publicationof treaties and to omit those which concern primarilythe Secretary-General's administrative functions withrespect to the register itself.

(4) Paragraph 1 restates and makes applicable toall future treaties the basic provision in Article 102,paragraph 1, of the Charter. Members of the UnitedNations are, of course, already under this obligation,which dates from 24 October 1945, the date of thecoming into force of the Charter. Although the Charterobligation is limited to States and to States Membersof the United Nations, many non-member States (andvirtually all international organizations) have been inthe practice of registering treaties with the Secretariatof the United Nations in voluntary compliance withArticle 102, paragraph 1. It therefore seems reasonableto lay down in sub-paragraph (b) of the present articlethat every registrable treaty entered into by a non-member State between the coming into force of theCharter and the coming into force of the presentarticles shall as soon as possible be registered, if reg-istration has not already been effected in voluntarycompliance with the Charter provision. This would

Law of treaties 73

have the effect of extending, through the present articles,the operation of Article 102 of the Charter to any non-member States which may subscribe to the presentarticles.

(5) Paragraph 2 restates the provision in article 1(2) of the General Assembly's regulations, which isreallv an interpretation of Article 102 of the Charterby the Assembly; for the Assembly has in effect saidthat "as soon as possible" does not mean as soon aspossible after the drawing up of the treaty but assoon as possible after its entry into jorce with respectto at least some parties.

(6) Paragraph 3 sets out the contents of article 1,paragraph 3, and article 4 of the General Assembly'sregulations.

(7) Paragraph 4 restates the provisions of article 3of the General Assembly's regulations. The order ofthe two paragraphs of article 3 has been reversed,because the obligation of an individual party to reg-ister a treaty appears to be an obligation which isresiduary in the sense that, if the treaty is one capableof being registered by the United Nations or by a spe-cialized agency, registration by those bodies is a virtualcertainty unless an administrative lapse occurs; andon registration being effected by the United Nationsor a specialized agency, the individual party is relievedof his obligation.

(8) Paragraph 5 restates the provision containedin article 2, paragraph 1, of the General Assembly'sregulations. This provision, which calls for the regis-tration of subsequent, related, instruments affecting theoperation of the treaty, represents a not unimportantsupplement to the obligation stated in Article 102 ofthe Charter.

(9) Paragraph 6 restates the sanction laid down inArticle 102, paragraph 2, of the Charter, and in a formto make it applicable to all treaties entered into afterthe coming into force of the Charter. The UnitedNations is entitled to lay down the conditions underwhich treaties may be invoked by any State, whetherMember or non-member, in the proceedings of organsof the United Nations, and it would seem to be logicalto make this provision of universal application, in orderto encourage a world-wide system of registration oftreaties.

ARTICLE 23. PROCEDURE OF REGISTRATION ANDPUBLICATION

1. (of) A party to a treaty or a specialized agency,registering a treaty in accordance with the provisionsof the preceding article, shall certify that the text isa true and complete copy thereof and that it includesall reservations made by parties thereto.

(b) The certified copy shall reproduce the text ofthe treaty in all the languages in which the treaty wasconcluded and shall be accompanied by two additionalcopies and by a statement setting forth, in respect ofeach party:

(i) The date on which the treaty has come intoforce; and

(ii) The method whereby it has come into force(signature, ratification, acceptance, accession,et cetera).

2. (a) The date of the receipt by the Secretariat ofthe United Nations of a treaty for registration shall bedeemed to be the date of registration.

(b) However, the date of registration of a treatyregistered ex officio by the United Nations shall be thedate on which the treaty first came into force betweentwo or more of the parties thereto.

3. A certificate of registration signed by the Secre-tary-General or his representative shall be issued tothe registering party or agency and also upon request,to any party to the treaty or international agreementregistered.

4. The foregoing provisions of the present article,which incorporate the provisions, as amended, of articles5, 6 and 7 of the regulations adopted by the GeneralAssembly of the United Nations on 14 December 1946,to give effect to Article 102 of the Charter, shall besubject to alteration by any amendments that may fromtime to time be made to those regulations by theGeneral Assembly.

Commentary(1) The principle upon which the draft articles

concerning registration of treaties have been drawn uphas already been explained in paragraph (3) of thecommentary to the previous article. The present articlereproduces the substance of articles 5 to 7 of theGeneral Assembly's regulations.

(2) Paragraph 1 reproduces almost verbatim theprovisions of article 5 of the regulations.

(3) Paragraph 2 reproduces article 6 of the regula-tions almost verbatim but divides it into two rules.The reason for this drafting change is that the "pro-vided that" clause in the second part of article 6 isnot really a proviso at all but a distinct and completelydifferent rule for a particular class of treaty.

(4) Paragraph 3 reproduces textually the terms ofarticle 7 of the regulations, as amended by GeneralAssembly resolution 482 (V) of 12 December 1950.

APPENDIX

Historical summary of the question of reservations tomultilateral conventions'1

(1) Certain reservations made to the Second Opium Con-vention of 1925 brought the question of reservations to multi-lateral treaties to the attention of the League of Nations, andin 1927 the Council of the League adopted a report on thequestion drawn up by the Committee for the ProgressiveCodification of International Law.b The relevant passage inthe report ran as follows:

"In order that any reservation whatever may be validlymade in regard to a clause of the treaty, it is essential thatthis reservation should be accepted by all the contractingparties, as would have been the case if it had been putforward in the course of the negotiations. If not, thereservation, like the signature to which it is attached, isnull and void."

Thus, under the League of Nations practice a State couldonly become a party to a multilateral treaty subject to areservation if the reservation received the unanimous assent ofall the Contracting States. When the United Nations wasestablished and took over the depositary functions of the League,the Secretariat applied the same principles in regard to reserva-tions as those previously followed by the League of NationsSecretariat. Difficulties having arisen in 1950 in determiningthe date of the entry into force of the Convention on thePrevention and Punishment of the Crime of Genocide by reasonof the fact that some of the ratifications were accompanied

a See generally Lord McNair, Law of Treaties, chapter 9, andthe bibliography at the beginning of the chapter.

b The report is set out in full in Lord McNair's Law ofTreaties, pp. 173-176.

74 Yearbook of the International Law Commission, Vol. IIby reservations, the Secretary-General brought the matter beforethe General Assembly. In doing so, he submitted a full report(A/1372) on the existing practice of the Secretariat, thesubstance of which, for present purposes, was contained in thefollowing passages of the report:

"While it is universally recognized that the consent of theother governments concerned must be sought before they canbe bound by the terms of a reservation, there has not beenunanimity either as to the procedure to be followed by adepositary in obtaining the necessary consent or as to thelegal effect of a State objecting to a reservation." (Para-graph 2.)

"In the absence of stipulations in a particular conventionregarding the procedure to be followed in the making andaccepting of reservations, the Secretary-General, in hiscapacity as depositary, has held to the broad principle thata reservation may be definitively accepted only after it hasbeen ascertained that there is no objection on the part ofany of the other States directly concerned. If the conventionis already in force, the consent, express or implied, is thusrequired of all States which have become parties up to thedate on which the reservation is offered. Should the con-vention not yet have entered into force, an instrument ofratification or accession offered with a reservation can beaccepted in definitive deposit only with the consent of allStates which have ratified or acceded by the date of entryinto force.

"Thus, the Secretary-General, on receipt of a signatureor instrument of ratification or accession, subject to a reserva-tion, to a convention not yet in force, has formally notifiedthe reservation to all States which may become parties tothe convention. In so doing, he has also asked those Stateswhich have ratified or acceded to the convention to informhim of their attitude towards the reservation, at the sametime advising them that, unless they notify him of objectionsthereto prior to a certain date—normally the date of entryinto force of the convention—it would be his understandingthat they had accepted the reservation. States ratifying oracceding without express objection, subsequent to notice ofa reservation, are advised of the Secretary-General's assump-tion that they have agreed to the reservation. If the con-vention were already in force when the reservation wasreceived, the procedure would not differ substantially, exceptthat a reasonable time for the receipt of objections would beallowed before tacit consent could properly be assumed."(Paragraphs 5 and 6.)

"The rule adhered to by the Secretary-General as depositarymay accordingly be stated in the following manner:

"A State may have a reservation when signing, ratifyingor acceding to a convention, prior to its entry into force,only with the consent of all States which have ratified oracceded thereto up to the date of entry into force; and maydo so after the date of entry into force only with the consentof all States which have theretofore ratified or acceded."(Paragraph 46.)(2) Meanwhile, the subject had already come before the

Commission during the discussion of Professor Brierly's firstreport on the law of treaties (A/CN.4/23) at its second sessionin 1950, at which time the Court had not yet been asked forits advisory opinion on reservations to the Convention on thePrevention and Punishment of the Crime of Genocide. Laterthat year, the General Assembly by resolution 478 (V) requestedthe Court to give an advisory opinion on the particular questionof reservations to the Genocide Convention, and at the sametime invited the Commission "in the course of its work on thecodification of the law of treaties to study the question ofreservations to multilateral conventions, both from the pointof view of codification and from that of the progressivedevelopment of international law". The Commission was re-quested to give priority to this study and to report thereonto the General Assembly in time for the next session. In duecourse, Professor Brierly submitted for discussion at the Com-mission's 1951 session a special report on reservations to multi-lateral conventions (A/CN.4/41) to which were attachedannexes containing (a) a summary of the debates in the Sixth

Committee and General Assembly, (b) a summary of theopinions of writers, (c) examples of treaty clauses on themaking of reservations and (d) a review of State practice. Afurther annex (c) contained an elaborate series of possibletreaty clauses drafted in consultation with the Secretariat andcovering the question of (i) the admissibility of reservations,(ii) the States entitled to be consulted as to the admissibilityof reservations, (iii) the functions of the depositary and (iv) theprocedure for objections to reservations. In addition, the Com-mission received valuable memoranda from Mr. Gilbcrto Amado(A/CN.4/L.9) and Mr. Georges Scelle (A/CN.4/L.14).

(3) Before the Commission met to consider this report theCourt had rendered its Advisory Opinion on Reservations tothe Genocide Convention (l.C.J. Reports, 1951, p. 15). By amajority of seven votes to five the Court advised:

"Question I:"That a State which has made and maintained a reserva-

tion which has been objected to by one or more of the partiesto the Convention but not by others, can be regarded as beinga party to the Convention if the reservation is compatiblewith the object and purpose of the Convention; otherwise,that State cannot be regarded as being a party to theConvention.

"Question II:"(a) That if a party to the Convention objects to a reserva-

tion which it considers to be incompatible with the objectand purpose of the Convention, it can in fact consider thatthe reserving State is not a party to the Convention;

"(b) That if, on the other hand, a party accepts thereservation as being compatible with the object and purposeof the Convention, it can in fact consider that the reservingState is a party to the Convention.

"Question III:"(a) That an objection to a reservation made by a signatory

State which has not yet ratified the Convention can havethe legal effect indicated in the reply to Question I onlyupon ratification. Until that moment it merely serves as anotice to the other State of the eventual attitude of thesignatory State;

"(b) That an objection to a reservation made by a Statewhich is entitled to sign or accede but which has not yetdone so, is without legal effect."

In giving these replies to the General Assembly's questionsthe majority strongly emphasized that the replies were strictlylimited to the Genocide Convention; and in their reasoningthey said that, in determining what kind of reservations mightbe made to the Genocide Convention and what kind of objectionsmight be taken to such reservations, the solution must befound in the special characteristics of that Convention. Amongstthese special characteristics they mentioned (a) the fact thatthe principles underlying the Convention—the condemnation andpunishment of genocide—are principles recognized by civilizednations as binding upon Governments even without a conven-tion, (b) the consequently universal character of the Convention,and (c) its purely humanitarian and civilizing purpose withoutindividual advantages or disadvantages for the ContractingStates.

Although its opinion was thus strictly limited to a particularconvention with special characteristics, the Court did give someindications of its general attitude on certain points, and theseindications may be summarized as follows:

(a) In its treaty relations a State cannot be bound withoutits consent and consequently no reservation can be effectiveagainst any State without its agreement thereto.

(b) The traditional concept, that no reservation is valid unlessit has been accepted by all the contracting parties withoutexception, as would have been required if it had been statedduring the negotiations, is of undisputed value.

(c) Nevertheless, extensive participation in conventions ofthe type of the Genocide Convention has already given riseto greater flexibility in the international practice concerningmultilateral conventions, as manifested by the more generalresort to reservations, the very great allowance made for tacit

Law of treaties 75assent to reservations and the existence of practices which,despite the fact that a reservation has been rejected by certainStates, go so far as to admit the reserving State as a partyto the Convention vis a vis those States which have accepted it.

(d) In the present state of international practice it cannotbe inferred from the mere absence of any article providingfor reservations in a multilateral convention that the Con-tracting States are prohibited from making certain reservations.The character of a multilateral convention, its purposes, pro-visions, mode of preparation and adoption, are factors whichmust be considered in determining, in the absence of anyexpress provision on the subject, the possibility of makingreservations, as well as their validity and effect.

(e) The principle of the integrity of the convention, whichsubjects the admissibility of a reservation to the express ortacit assent of all the contracting parties, does not appear tohave been transformed into a rule of law. The considerablepart which tacit assent has always played in estimating theeffect which is to be given to reservations scarcely permitsit to be stated that such a rule exists; indeed, the examplesof objections made to reservations appear to be too rare ininternational practice to have given rise to such a rule.

(/) The report adopted by the Council of the League ofNations in 1927—endorsing the rule of the integrity of theConvention for application by the Secretary-General as De-positary—constituted at best the point of departure for anadministrative practice, which was also taken over later bythe United Nations; and it did not have the effect of establish-ing a rule of law. Indeed, the Secretary-General of the UnitedNations himself had said in 1950 that there has not beenunanimity either as to the procedure to be followed by adepositary in obtaining the necessary consent or as to the legaleffect of a State's objecting to a reservation.

(g) Mere participation in the adoption of the text or amere invitation to become a party do not confer a right toobject to a reservation made by another State. A signaturewhich is subject to ratification is, however, a different matter;it establishes a provisional status in favour of the signatoryState which entitles it to formulate—on a provisional basis—objections to reservations made by another State. On ratifica-tion these objections become effective but, if the signature isnot followed by ratification, the objections disappear.

Of the five dissenting Judges one, Judge Alvarez, consideredthat owing to its particular nature the Genocide Conventiondid not admit of any reservations at all. The remaining four,Judges Guerrero, McNair, Read and Hsu Mo, in a jointopinion, considered the principle of the integrity of the con-vention to be a rule of positive international law. Citing- theopinions of Fauchille, Sir William Malkin, Accioly and PodestaCosta, and referring to the practice of the League and UnitedNations Secretariats as well as to the report of the LeagueCommittee for the Progressive Development of InternationalLaw adopted by the Council in 1927 and to the HarvardResearch Draft, these judges came to the conclusion that theprinciple of the need for unanimous assent to reservations—theprinciple hitherto applied by the Secretariats of the League andthe United Nations—had been accepted as a rule of law aswell as an administrative practice. They pointed out that thecontrary practice of the Pan American Union, permitting areserving State to become a party, despite the objections ofother States to the reservation, was based on the prior agree-ment of the Contracting States given at the Lima Conferenceof 1938. They further said that they were unable to acceptthe criterion of "compatibility with the object and purpose ofthe Convention", favoured by the Court, (a) because it wasa new rule for which they could find no legal basis and (b)because the subjective character of the criterion, whose applica-tion would be dependent on the individual appreciation of eachState, would mean that there would be no finality or certaintyas to the status of the reserving State as a party to theConvention.

(4) The Commission resumed its discussion of the subjectshortly after the delivery of the Court's Advisory Opinion,and it naturally took that opinion into account, as well as thespecial report of Professor Brierly and the memoranda of

Mr. Amado and Mr. Scelle. In its own report for 1951 (A/1858, chapter II) the Commission noted, first, that 1he Court'sopinion had been strictly limited to the particular case of theGenocide Convention and, secondly, that while the Court hadgiven its opinion on the basis of existing law, the Commissionhad been expressly asked to study the question "both fromthe point of view of codification and from that of theprogressive development of international law". It therefore feltitself free to suggest the practice which it considered the mostconvenient for States to adopt for the future (para. 17). Itdrew attention to the practical difficulties to which, by reasonof its subjective character, the criterion of "compatibility withthe object and purpose of the convention" gives rise—theuncertainty as to the status of the reserving State in relationto the convention, the doubt whether the reserving State is tobe considered a party to the convention for the purpose of theright of intervention under Article 63 of the Court's Statute,and in some cases the doubt even whether sufficient ratifications,accessions, etc., have taken place to bring the convention intoforce. And, owing to these difficulties, it advised that thecriterion adopted by the Court in the case of the GenocideConvention is not suitable for application to multilateral con-ventions in general (para. 24).

The Commission also examined the system of the Organiza-tion of American States. Under this system a State proposingto make a reservation communicates it to the Pan AmericanUnion, which in turn inquires of the other signatory Stateswhether they accept it, and the reserving State then decides,in the light of any observations from the other signatories,whether or not to become a party to the convention and, if so,whether or not to maintain its reservation. If the reservingState maintains a reservation to which objection has been taken,the legal position, according to a resolution of the GoverningBoard of the Pan-American Union of 4 May 1932 (quoted inthe Commission's report A/1858, para. 21) is held to be asfollows:

"1. The treaty shall be in force, in the form in which itwas signed, as between those countries which ratify itwithout reservations, in the terms in which it was originallydrafted and signed.

"2. It shall be in force as between the governments whichratify it with reservations and the signatory States whichaccept the reservations in the form in which the treaty maybe notified by said reservations.

"3. It shall not be in force between a government whichmay have ratified with reservations and another which mayhave already ratified, and which does not accept suchreservations."

The Commission, while recognizing that a system of this kind,designed to ensure the greatest number of ratifications, mightbe regarded by a continental or regional organization as suitableto its needs, found the Pan-American system not to be suitablefor application to multilateral conventions in general.0 Thereasons which it gave for this finding were:

". . . an examination of the history of the conventionsadopted by the Conferences of American States over the pasttwenty-five years has failed to convince the Commission thatan approach to universality is necessarily assured or promotedby permitting a State which offers a reservation to whichobjection is taken to become a party vis-a-vis non-objectingStates. In some multilateral conventions, the securing ofuniversality may be the more important consideration; andwhen this is the case, it is always possible for States toadopt the procedure followed by the Pan American Unionby inserting a suitable provision to this effect in the conven-tion. But there are other multilateral conventions where theintegrity and the uniform application of the convention aremore important considerations than its universality, and theCommission believes that this is especially likely to be thecase with conventions drawn up under the auspices of theUnited Nations. These conventions are of a law-making typein which each State accepts limitations on its own freedom

cMr. Yepes dissented from this part of the Commission'sreport.


of action on the understanding that the other participatingStates will accept the same limitations on a basis of equality.The Pan American Union practice is likely to stimulate theoffering of reservations; the diversity of these reservationsand the divergent attitude of States with regard to themtend to split up a multilateral convention into a series ofbilateral conventions and thus to reduce the effectivenessof the former."

The Commission did not, therefore, recommend the applicationof the Pan-American system, except when the parties to theConvention had indicated their intention to adopt it (ibid.,para. 22).

(5) The Commission's own approach to the problem wasgoverned by the following general considerations (ibid.,para. 26) :

"When a multilateral convention is open for States generallyto become parties, it is certainly desirable that it shouldhave the widest possible acceptance. The very fact of itsbeing open in this way indicates that it deals with somesubject of wide international concern regarding which it isdesirable to reform or amend existing laws. On the otherhand, it is also desirable to maintain uniformity in theobligations of all the parties to a multilateral convention,and it may often be more important to maintain the integrityof a convention than to aim, at any price, at the widestpossible acceptance of it. A reserving State proposes, ineffect, to insert into a convention a provision which willexempt that State from certain of the consequences whichwould otherwise devolve upon it from the convention, whileleaving the other States which are or may become parties toit fully subject to those consequences in their relationsinter se. If a State is permitted to become a party to a multi-lateral convention while maintaining a reservation over theobjection of any party to the convention, the latter may wellfeel that the consideration which prompted it to participatein the convention has been so far impaired by the reservationthat it no longer wishes to remain bound by it."

It also emphasized that it is always within the power ofnegotiating States to deal with the question of reservations inthe text of the convention itself, and highly desirable thatthey should do so. For then provisions may be inserteddepending, in some measure at least, on the relative emphasisto be placed on maintaining the integrity of the text, or onfacilitating the widest possible acceptance of it, even invarying terms. It suggested that, if the treaty places no limiton the admissibility of reservations, and if there is no establishedorganizational** procedure concerning reservations, the negotiat-ing States should themselves establish in the text of the treatya procedure covering in particular the following points (ibid.,para. 27):

"(a) How and when reservations may be tendered;"(b) Notifications to be made by the depositary as regards

reservations and objections thereto;"(c) Categories of States entitled to object to reservations,

and the manner in which their consent thereto may be given;"(d) Time limits within which objections are to be made;"(e) Effect of the maintenance of an objection on the

participation in the convention of the reserving State."

The Commission, while recognizing that no single ruleuniformly applied could be wholly satisfactory to cover allthe cases where the negotiating States have omitted to dealwith the question of reservations, considered that its task wasto recommend the rule which would be the most suitable forapplication in the majority of cases; and it suggested that,subject to certain modifications, the previous practice of theSecretary-General would furnish such a rule. The modifica-tions which the Commission had in mind related to the questionhow far a signatory State, whose signature is still subject toratification or acceptance, should have the right to advanceobjections to reservations. On this question, it said (ibid.,para. 29) :

"The concern of a mere signatory State should also betaken into account; for, at the time the reservation istendered, a signatory State may be actively engaged in thestudy of the convention, or it may be in the process ofcompleting the procedure necessary for its ratification, orfor some reason, such as the assembling of its parliament,it may have been compelled to delay its ratification. In thisconnexion, it has been suggested that a mere signatory toa convention should have the right of objecting only toreservations tendered before the convention has entered intoforce. Such a differentiation between reservations tenderedbefore and those tendered after the entry into force of aconvention would, however, be invidious where the entry intoforce of the convention is brought about as the result of thedeposit of the ratifications of a very limited number ofStates, as in the case of the four Geneva Red CrossConventions of 12 August 1949, to which more than sixtyState are signatories, but which, it is provided, 'shall comeinto force six months after not less than two instrumentsof ratification have been deposited'. In such a case, a veryfew States might, by the tender and acceptance of reserva-tions amongst themselves, so modify the terms of the con-vention that signatories, representing possibly the pre-ponderant number of negotiating States, would find themselvesconfronted with a virtually new convention."6

At the same time, the Commission acknowledged that, inorder to prevent a reserving State from being indefinitelyexcluded from participation in the convention by the objectionof a State which itself refrains from ratifying it, some time-limit must be imposed on the effectiveness of the objection ofa mere signatory. It therefore added (ibid., para. 30) :

"Taking into consideration the normal administrative andconstitutional procedures of most governments in respect ofthe ratification of treaties and conventions, the Commissionbelieves that a period of twelve months would be a reasonabletime within which an objecting State could effect its ratifica-tion or acceptance of a convention. Accordingly, the Com-mission is of the opinion that if, upon the lapse of twelvemonths from the date a signatory State makes an objectionto a reservation to a multilateral convention, it has noteffected its ratification or acceptance of the convention, itsobjection should cease to have the effect of preventing thereserving State from becoming a party to the convention."In conclusion, after reiterating the desirability of inserting

express provisions in multilateral conventions regardingreservations, it suggested that, in cases where this has not beendone, and especially where the Secretary-General of the UnitedNations is the depositary, the following practice should beadopted (ibid., para. 34) :

"(1) The depositary of a multilateral convention should,upon receipt of each reservation, communicate it to all Stateswhich are or which are entitled to become parties to theconvention.

"(2) The depositary of a multilateral convention, in com-municating a reservation to a State which is entitled toobject, should at the same time request that State to expressits attitude towards the reservation within a specified period,and such period may be extended if this is deemed to benecessary. If, within the period so specified or extended,a State fails to make its attitude towards the reservationknown to the depositary, or if, without expressing an objec-tion to the reservation, it signs, ratifies, or otherwise acceptsthe convention within the period, it should be deemed to haveconsented to the reservation.

"(3) The depositary of a multilateral convention shouldcommunicate all replies to its communications, in respect ofany reservation to the convention, to all States which are orwhich are entitled to become parties to the convention.

"(4) If a multilateral convention is intended to enter intoforce as a consequence of signature only, no further actionbeing requisite, a State which offers a reservation at the

d E.g., the Pan-American system.

e This sentence perhaps put the matter a little strongly, since,in principle, a reservation only operates in the relations ofStates with the reserving State.

Law of treaties 77

time of signature may become a party to the convention onlyin the absence of objection by any State which has previouslysigned the convention; when the convention is open tosignature during a limited fixed period, only in the absenceof objection by any State which becomes a signatory duringthat period.

"(5) If ratification or acceptance in some other form, aftersignature, is requisite to bring a multilateral convention intoforce:

"(a) A reservation made by a State at the time of signatureshould have no effect unless it is repeated or incorporated byreference in the later ratification or acceptance by thatState ;

"(b) A State which tenders a ratification or acceptancewith a reservation may become a party to the conventiononly in the absence of objection by any other State which,at the time the tender is made, has signed or ratified orotherwise accepted the convention; when the convention isopen to signature during a limited fixed period, also in theabsence of objection by any State which signs, ratifies orotherwise accepts the convention after the tender is madebut not before the expiration of this period; provided,however, that an objection by a State which has merelysigned the convention should cease to have the effect ofexcluding the reserving State from becoming a party, ifwithin a period of twelve months from the time of themaking of its objection the objecting State has not ratifiedor otherwise accepted the convention."(6) The Court's Opinion and the Commission's report were

considered together at the sixth session of the General As-sembly, which adopted resolution 598 (VI), dealing with theparticular question of reservations to the Genocide Conventionseparately from that of reservations to other multilateralconventions. With regard to the Genocide Convention it re-quested the Secretary-General to conform his practice to theCourt's Advisory Opinion and recommended to States that theyshould be guided by it. With regard to all other future multi-lateral conventions concluded under the auspices of the UnitedNations of which he is the depositary, it requested theSecretary-General:

(i) To continue to act as depositary in connexion with thedeposit of documents containing reservations or objec-tions, without passing upon the legal effect of suchdocuments; and

(ii) To communicate the text of such documents relating toreservations or objections to all States concerned, leavingit to each State to draw legal consequences from suchcommunications.

The resolution, being confined to future conventions, is limitedto conventions concluded after 12 January 1952, the date of theadoption of the resolution, so that the former practice stillapplies to conventions concluded before that date.f As to futureconventions, the General Assembly did not endorse the Com-mission's proposal to retain the former practice subject tominor modifications. Instead, it directed the Secretary-General,in effect, to act simply as a registry and circulating agent forinstruments containing reservations or objections to reservations,without drawing any legal consequences from them. The resolu-tion is, therefore, entirely "neutral" as to the answers to begiven to the questions which States should have the right tolodge objections to reservations and what should be the legaleffect of such objections.

(7) The General Assembly was unable to adopt a morepositive rule because it was sharply divided on the merits ofthe Commission's proposals embodying the traditional conceptof the integrity of the convention. A substantial group of Statesfavoured the traditional system advocated by the Commission.At the same time, in the Sixth Committee a number of theseStates expressed support for a modification of it suggested bythe United Kingdom to meet the criticism that under the tradi-tional system it is possible for a single State, by its objection,

f If the previous practice had been disturbed, States parties tothe same convention might have found themselves differentlytreated according as their reservation had been formulatedbefore or after 12 January 1952.

to exclude a reserving State altogether and thereby frustratethe will of the majority who might be ready to accept thereservation. The suggestion was that the requirement ofunanimous consent to a reservation might be replaced by oneof acceptance by a qualified majority, such as three-quarters ortwo-thirds, of the States concerned.

On the other hand, a no less substantial—and perhaps larger—group of States favoured a less strict practice, arguing that amore flexible system is necessary with regard to reservationsin order to safeguard the sovereign equality of States and, asmost conventions are now adopted by a majority vote, to safe-guard the position of the out-voted minority. They ;ilso urgedthat a more flexible system would make possible a wideracceptance of conventions and thus contribute to the develop-ment of international law; and they emphasized that one Stateshould not be able to veto reasonable reservations to whichother States might agree. This group was itself somewhatdivided as to the effect of objections to reservations. SomeStates considered that States, by virtue of their sovereignty,have an inalienable right to make reservations and that anobjection to a reservation, being an interference with thatsovereign right, is without any legal effect. Several others inthis group, however, considered that a more general applicationcould be given to the Court's criterion according to which aState, to whose reservation objection has been taken, maynevertheless become a party if its reservation is compatiblewith the object and purpose of the convention.

In addition, a number of States belonging to the secondgroup which were members of the Organization of AmericanStates argued in favour of the Pan-American system. Theysaid that the circulation of reservations enabled States to judgewhether to maintain them in face of the objections of otherStates and that the system as a whole facilitated acceptance ofconventions. Several States in the first group, however, includ-ing two members of the Organization of American States,maintained that, although the system might be suitable for arelatively homogeneous community like the Latin AmericanStates, it would not be suitable for the more diverse and lessclosely knit community of the United Nations.

A few States considered that it was impossible to apply asingle rule to all multilateral conventions and that an attemptshould be made to define categories of conventions and establishrules applicable to each category. There was also considerablesupport for the view that the Assembly should not try to takea final decision on the matter at its sixth session, but shouldrefer it back to the Commission in the hope that it would bepossible to formulate a rule combining the best features of thesystems so far advocated and meeting •with a wide measureof agreement.

(8) Confronted with the General Assembly's neutral resolu-tion and with the divergent views expressed by States in theSixth Committee and Assembly, Sir H. Lauterpacht in histwo reports (A/CN.4/63 and A/CN.4/87) put forward anumber of alternative draft articles for consideration. Hisprimary draft read as follows (A/CN.4/87, article 9):

"Unless otherwise provided by the treaty, a signature,ratification, accession, or any other method of accepting amultilateral treaty is void if accompanied by reservationsnot agreed to by all parties to the treaty."

This draft restated in brief form the principle of the integrityof the convention—the need for unanimous consent to reserva-tions—embodied in the Commission's report to the GeneralAssembly which Sir H. Lauterpacht regarded "as probably stillrepresenting the existing law". He considered it to be thefunction of the Commission to state that principle as the rulede legc lata "even if only as a preliminary to a formulationof a more satisfactory solution de lege ferenda". He under-lined, however, that the Commission had been requested toexamine the subject from the point of view of the progressivedevelopment, as well as the codification, of the law and sug-gested that the Commission ought now to recognize that theunanimity rule had been found to be unsatisfactory and un-acceptable to1 a large number of States.

On this basis he put forward four alternative draft articles,all of which were founded upon the following considerations


(A/CN.4/63, paragraph 3 of comment on article 9, alternativedraft A):

"A. It is desirable to recognise the right of States toappend reservations to a treaty and become at the same timeparties to it provided these reservations are not of such anature to meet with disapproval on the part of a substantialnumber of the States which finally accept the obligationsof the treaty;

"B. It is not feasible or consistent with principle torecognise an unlimited right of any State to become a partyto a treaty while appending reservations however sweeping,arbitrary, or destructive of the reasonably conceived purposeof the treaty and of the legitimate interests and expectationsof the other parties;

"C. The requirement of unanimous consent of all partiesto the treaty as a condition of participation in the treaty ofa State appending reservations is contrary to the necessitiesand flexibility of international intercourse."

In short, all the drafts were designed to offer a solutionintermediate between the unanimity rule, which is unacceptableto a large number of States, and the sovereignty principle ofan unlimited right to make reservations, which is no lessunacceptable to a great many States. Moreover, while theyadopted in some measure the flexibility of the Pan-Americansystem, they were designed to provide stronger safeguardsagainst misuse of the power to formulate reservations.

The four drafts had a common element in that they allprovided that a State should be deemed to have agreed to areservation of which it has been notified, if within three monthsof the date of notification it has not communicated its rejectionof the reservation to the depositary. They differed primarilyin the criteria adopted for determining whether the reservingState is to be considered a party to the convention:

Alternative A envisaged that a State formulating a reserva-tion should nevertheless be considered a provisional party fora period of up to three years. If at any time within this periodit should become apparent that less than two-thirds of the Statesaccepting the treaty have declined to agree to the reservation,the reserving State would cease to be a party. If, on the otherhand, either during or after this period two-thirds or more ofthe accepting States should have agreed to the reservation, thereserving State would become a party to the conventionvis-a-vis all the other parties, subject of course to their rightto rely reciprocally on the reservation in their relations withthe reserving State. This alternative draft, it may be added,provided that the right to object to a reservation should attachto every other State accepting the treaty, regardless of whetherit had itself formulated a reservation; and it actually con-templated that a treaty provisionally in force might cease tobe so if the number of parties were afterwards reduced belowthe necessary figure by the exclusion of a State through sub-sequent objections to its reservation.

Alternative B was a much simplified version of alternative A,in that it abandoned the concept of provisional participation.In effect, it merely provided that a State would or would notbecome a party according as, after a period to be prescribedin the convention, the reservation had or had not met with theagreement of two-thirds of the States "qualified to offer objec-tions to the reservation". Nor did it define or limit in any waythe States which are to be regarded as thus qualified. On theother hand, Sir H. Lauterpacht recognized in his commentarythat the draft would be much clarified if the treaty itself wereto provide expressly that the qualified States are only thosewhich themselves finally accept the treaty within the periodprescribed, or that an objection ceases to be valid if the objectingState does not itself finally accept the treaty within a prescribedperiod.

Alternative C envisaged that the parties, or the internationalorganization responsible for establishing the text of the treaty,should designate a committee with competence to decide uponthe admissibility of reservations to which objection has beenmade.

Alternative D envisaged that the parties or the internationalorganization concerned should request the International Court

to designate a Chamber of Summary Procedure to decide onthe admissibility of reservations to which objection has beenmade.

Sir H. Lauterpacht explained in the commentary to his secondreport that alternatives A, B, C and D could be conceived ofeither as possible rules to replace the unanimous consent prin-ciple advocated by the Commission in 1951 or as solutionsrecommended by the Commission which the parties couldchoose according to the circumstances of each treaty. And headded that it would be necessary for the Commission to decidewhether to formulate one of these alternatives as the new basicrule or whether to "reaffirm" the unanimous consent principleand to offer these alternatives merely as recommended pro-cedures to replace that rule if the parties to a particular treatyso wished. Since the Commission is today definitely embarkedupon the task of preparing the draft articles of a convention,Sir H. Lauterpacht's alternatives A, B, C and D, whatevervalue they may have as providing model precedents for thedraftsmen of particular treaties, are now only of interest tothe Commission in so far as they may ofTer a possible basisfor formulating a rule for general application in cases wherethe question of reservations has not been dealt with in thetreaty itself. Viewed from this angle, alternative A, underwhich the status of reserving States may be only provisionalfor as long a period as three years, appears to the presentSpecial Rapporteur to suffer from such evident disadvantagesas to be unacceptable as a general rule. Again, alternatives Cand D, ideal solutions although they may be when States areagreeable to submit their disputes to decision by an independentbody, appear to be so unlikely to meet with general acceptanceat the present time that the adoption of either of them in theCommission's draft articles does not seem to be advisable.International practice does show some recourse to an analogoussolution in particular cases, namely to the use of the competentorgan of an international organization for determining theadmissibility of reservations to multilateral conventions drawnup within the organization; and that more special questionmay merit further consideration. There remains alternative B,which incorporates the two-thirds principle suggested by theUnited Kingdom and favourably commented upon by some otherStates in the Sixth Committee in 1951. As Sir H. Lauterpachthimself recognized that alternative B required further amplifi-cation, it suffices to note that one of the solutions put forwardby him was the maintenance of the consent principle with a two-thirds majority substituted for unanimity.

(9) Sir G. Fitzmaurice in articles 37-40 of his report (A/CN.4/101) submitted a more elaborate and more precise setof rules concerning reservations, the detailed provisions ofwhich have served as a valuable guide to the present SpecialRapporteur. That report has not, however, been before theCommission, and there are certain basic points in Sir G. Fitz-maurice's approach to the subject on which the Special Rap-porteur would have liked to have had the Commission's opinionbefore drafting the present report. Sir G. Fitzmaurice, whilemaking every provision for tacit consent to reservations throughomission to object, nevertheless made the principle of unanimousconsent the basis of his draft articles, as appears from thefollowing provisions of his draft:

Article 37 (2)"Reservations . . . must be brought to the knowledge of the

other interested States; and, subject to articles 38 and 39below, must be assented to expressly or tacitly by all thoseStates."

Article 38"In the case of bilateral treaties, or plurilateral treaties

made between a limited number of States for purposesspecially interesting those States, no reservations may bemade, unless the treaty in terms so permits, or all the othernegotiating States expressly so agree."

Article 39 (3)"In the case of general multilateral treaties . . . if a reserva-

tion meets with objection, and if the objection is maintainednotwithstanding any explanations or assurances given by the

Law of treaties 79reserving State, the latter cannot become, or rank as, aparty to the treaty unless the reservation is withdrawn."

Article 39 (4)"Unless and until a reservation has been circulated and is

ascertained to have met with no final objection, and thusto have been accepted, the reserving State cannot be takeninto account in any computation of the number of partiesto the treaty . . . . "

In his commentary upon article 37 Sir G. Fitzmaurice referredto a study of the whole subject which he had written in aUnited Kingdom law review,? and recommended that in anycode on the law of treaties the Commission should adhere tothe same basic view as that which had inspired its reportto the General Assembly on reservations to multilateral con-ventions, 1951.

Sir G. Fitzmaurice, it will be seen, did not propose that theCommission should modify the principle that reservations requirethe consent of the other interested States, even to the extentof substituting a two-thirds majority for unanimity. He urgedthat the consent principle is mitigated in practice inter alia bythe considerations that (i) any negotiating State may seekto have inserted in the treaty an express provision permittingcertain reservations or classes of reservations, (ii) if the treatydoes not contain such a provision, it may still seek specificacquiescence for any particular reservation it desires to make,(iii) tacit acquiescence may be inferred from silence, (iv) Statesdo not in practice normally refuse their consent unless thereservation is clearly unreasonable and such as ought not tobe admitted. And he suggested that all legitimate requirementswould be met if the Commission's draft further provided:

(i) That in the case of reservations formulated after thetreaty has been drawn up, the acquiescence of a State wouldbe presumed if no objection had been received within a periodof three months; and

(ii) That after the treaty has been in force for a certainperiod of time—and the period he suggested was five years—only the objections of actual parties to the treaty should betaken into account, provided that they represented a reasonableproportion of those entitled to become a party to the treaty.Thus, he thought that, unless the treaty itself otherwise pro-vides, the rule of unanimity should continue to apply, qualifiedonly by provisions (a) making absence of objection for threemonths equivalent to a definitive expression of consent and(b) nullifying, when the treaty has been in force for fiveyears, the objection of any State which has not itself proceededto become a party to the treaty.

(10) Finally, in 1959, the question of reservations to multi-lateral treaties was considered by the Inter-American Councilof Jurists, with a view to drawing up principles to be followedby the Pan American Union in discharge of its functions asa depositary of inter-American treaties. The Council ultimatelyresolved to recommend the adoption of the following rules(reproduced in document A/CN.4/124, para. 94):

"I. In the case of ratification or adherence with reserva-tions, the ratifying or adhering State shall send to the PanAmerican Union, before depositing the instrument of ratifica-tion or adherence, the text of the reservations it proposes tomake so that the Pan American Union may transmit them tothe other signatory States for the purpose of ascertainingwhether they accept them or not.

"The Secretary-General shall inform the State that madethe reservations of the observations made by the otherStates. The State in question may or may not proceed todeposit the instrument of ratification or adherence with thereservations, taking into account the nature of the observa-tions made thereon by the other signatory States.

"If a period of one year has elapsed from the date ofconsultation made to a signatory State without receiving areply, it shall be understood that that State has no objectionto make to the reservations.

s Fitzmaurice, "Reservations to Multilateral Conventions",International and Comparative Law Quarterly (1953), vol. 2,pp. 1-26.

"If, notwithstanding the observations that have been made,the State maintains its reservations, the juridical conse-quences of such ratification or adherence shall be thefollowing:

"(a) As between States that have ratified without reserva-tions, the treaty shall be in force in the form in which theoriginal text was drafted and signed.

"(b) As between the States that have ratified with reserva-tions and those that have ratified and accepted such reserva-tions, the treaty shall be in force in the form in which itwas modified by the said reservations.

"(c) As between the States that have ratified with reserva-tions and those that have ratified but have not accepted thereservations, the treaty shall not be in force. In any eventthe State that rejects the reservations and the one that hasmade them may expressly agree that the treaty shall be inforce between them with the exception of the provisionsaffected by the reservations.

"(d) In no case shall reservations accepted by the majorityof the States have any effect with respect to a State thathas rejected them.

"II. Reservations made to a treaty at the time of signatureshall have no effect if they are not reiterated before depositingthe instrument of ratification.

"In the event the reservations are affirmed, consultationswill be made in accordance with rule I.

"III. Any State may withdraw its reservations, at anytime, either before or after they have been accepted by theother States. A State that has rejected a reservation maylater accept it."

The Council then added that both the making of reserva-tions and the acceptance or rejection of them or the abstentionfrom any comment upon them are acts inherent in nationalsovereignty. The Council further recommended that reservationsshould be precise and indicate exactly the clause or rule towhich they relate.

The resolution of the Inter-American Council of Juristsconcerning reservations to multilateral treaties was, however,made subject to certain reservations by four States, and thesereservations were as follows (ibid., para. 95) :

Reservation of Brazil:The delegation of Brazil abstains from voting on rule I,

paragraphs (b) (c) and (d) with respect to reservations tomultilateral treaties, in view of the opinion maintained bythe Government of Brazil regarding the principle of thecompatibility of reservations with the objective or purposeof the treaties to which they refer.

Statement of the United States of America:The United States delegation makes the following statement

with respect to two of the provisions in the draft resolutionon the Juridical Effects of Reservations to MultilateralPacts:

(a) The provision in paragraph I of the resolution, that thefailure of a party to the convention to reply within a yearto a notice of a reservation filed by a ratifying or adheringparty shall be construed as acceptance of the reservation,is undesirable.

(b) The requirement of paragraph II of the resolution, underwhich reservations filed at the time of signature must alsobe reiterated prior to the deposit of the ratificaLion, isunacceptable to the United States delegation in the formin which it has been drafted.

The United States delegation therefore reserves its positionon both these provisions.

Reservation of Bolk'ia:The delegation of Bolivia abstains from voting on the draft

resolution dealing with reservations to multilateral treaties,because it regards as inappropriate any statement "in theabstract" on the acceptance or rejection of reservations onmultilateral treaties, without a prior definition of the subjectmatter of these reservations and the significance thereof.


Statement of Chile:The delegation of Chile makes a reservation with respect to

the third paragraph of rule I of the draft resolution onReservations to Multilateral Treaties, the justification ofwhich, within the machinery of consultation on reservations,it recognizes only to the extent that it could be in disagree-

ment, in certain cases, with provisions of Chilean con-stitutional law.These reservations raise the somewhat awe-inspiring spectre

of the possibility of reservations being made by States actuallyto the articles of a codifying convention seeking to lay downthe general rules of international law in regard to reservations.

DOCUMENT A/CN.4/144/ADD.1

Addendum to the first report on the law of treaties, by Sir Humphrey Waldock, Special Rapporteur

[Original text: English][2 May 1962}

Chapter IV. The correction of errors andfunctions of depositaries

ARTICLE 24. THE CORRECTION OF ERRORS IN THE TEXTSOF TREATIES FOR WHICH THERE IS NO DEPOSITARY

1. Where a typographical error or omission is dis-covered in the text of a treaty for which there is nodepositary after the text has been signed, the signatoryStates shall by mutual agreement correct the erroreither:

(a) By having the appropriate correction made inthe text of the treaty and causing the correction to beinitialled in the margin by representatives duly au-thorized for that purpose;

(b) By drawing up and executing a separate protocolor proces-verbal setting out the errors in the text andthe corrections which the parties have agreed to maketo the text; or

(c) By preparing a corrected text of the whole treatyand executing it afresh in the same manner as theerroneous text that is being replaced.

2. The provisions of paragraph 1 shall also applymutatis mutandis to any case where there are two ormore authentic texts of such a treaty which are dis-covered not to be concordant and the parties are agreedin considering that the wording of one of the texts isinexact and requires to be amended in order to bringit into harmony with the other text or texts.

3. Whenever the text of a treaty has been correctedor amended under the preceding paragraphs of thepresent article, the corrected or amended text shall bedeemed to have come into force on the date of theoriginal text, unless the States concerned shall otherwisedecide.

Commentary(1) Errors and inconsistencies are not uncommonly

found in the texts of treaties and it seems desirableto include provisions in the draft articles concerningmethods of rectifying them. The present article dealswith the situation where an error is discovered in abilateral treaty or in a plurilateral treaty for which thereis no depositary; and also with the situation where thereare two or more authentic texts of such a treaty andthey are discovered not to be concordant. In thesecases the correction of the error or inconsistencies wouldseem to be essentially a matter for agreement betweenthe signatories to the treaty. Neither the HarvardResearch Draft, nor Satow's Diplomatic Practice, northe reports of previous Rapporteurs contain any infor-mation on this question; and in formulating the provi-sions of the present article the Special Rapporteurhas had regard primarily to the precedents given on

pages 93 to 101 of volume V of Hackworth's Digestof International Law.

(2) The normal techniques used for correcting errorsappear to be those in (a) and (b) of paragraph 1.Only in the extreme case of a whole series of errorswould there be any occasion for starting afresh witha new text as contemplated in paragraph (c) ; since,however, one such instance is given in Hackworth,op. cit., that of the United States-Liberia ExtraditionTreaty of 1937, the Special Rapporteur has included aprovision allowing for the substitution of a completelynew text.

(3) The same techniques appear to be appropriatefor the rectification of discordant texts where there aretwo or more authentic texts in different languages.Thus, a number of the precedents given in Hackworthconcern the rectification of discordant passages in oneof two authentic texts; for example, the CommercialTreaty of 1938 between the United States and Norway(page 93) and the Naturalisation Convention of 1907between the United States and Peru (page 96).

(4) Since what is involved is merely the correctionor rectification of an already accepted text, it seemsclear that, unless the parties otherwise agree, thecorrected or rectified text should be deemed to operatefrom the date when the original text came into force.On the other hand, it would not be right to say thatit should be deemed to date back to the adoption ofthe original text, since that might complicate the posi-tion where a faulty text has been submitted by one orother party to its legislature for approval or ratifi-cation.

ARTICLE 25. THE CORRECTION OF ERRORS IN THE TEXTSOF TREATIES FOR WHICH THERE IS A DEPOSITARY

1 (a). Where a typographical error or omission isdiscovered in the original text of a treaty for whichthere is a depositary, after the text has been authenti-cated, the depositary:

(i) Shall notify the error to all the States whichparticipated in the adoption of the text andto any other States that may subsequently havesigned or accepted the treaty and inform themthat it is proposed to correct the error if withina specified time limit no objection shall havebeen raised to the making of the correction; and

(ii) Shall in particular invite any States that mayhave already signed or accepted the treaty togive their consent to the said correction.

(b) If on the expiry of the specified time limit noobjection has been raised to the correction of the text,the depositary:

Law of treaties 81

(i) Shall make the correction in the text of thetreaty, initialling the correction in the margin;and

(ii) Shall draw up and execute a proces-verbal ofthe rectification of the text and transmit a copyof the proces-verbal to each of the States men-tioned in sub-paragraph (a) (i) of the presentparagraph.

2. Where a typographical error or omission is dis-covered in a certified copy of such a treaty, the deposi-tary shall draw up and execute a proces-verbal specify-ing both the error and the correct version of the text,and shall transmit a copy of the proces-verbal to allthe States mentioned in paragraph 1 (a) (i) of thepresent article.

3 (a). Where there are two or more authentic textsof such a treaty which are discovered not to be con-cordant, and a proposal is made that the wording ofone of the texts should be amended in order to bringit into harmony with the other text or texts, thedepositary:

(i) Shall notify the lack of concordance in the textsto all the States mentioned in paragraph 1 (a)(i) of the present article and inform them ofthe proposal to amend the text in question; and

(ii) Shall at the same time communicate to eachState a certified copy of the text as amended,or of such parts only as it is proposed to amend,and request it within a specified time limit tonotify the depositary whether it has any objec-tion to the text being amended as proposed.

(b) If on the expiry of the specified time limit noobjection has been raised to the amendment of thetext the depositary:

(i) Shall either replace the offending text with thenew text appropriately endorsed and duly ini-tialled, or as the case may be, make the correc-tion of the offending passages in the text andinitial the corrections in the margin; and

(ii) Shall draw up and execute a proces-verbal ofthe substitution or, as the case may be, rectifica-tion of the text and transmit a copy of theproces-verbal to each of the States mentionedin paragraph 1 (a) (i) of the present article.

4. If an objection is raised to a proposal to corrector amend a text under the provisions of paragraphs 1or 3 of the present article, the depositary shall notifythe objection to all the States concerned together withany other replies received in response to the notifica-tions mentioned in paragraphs 1 (a) and 3 (a). How-ever, if the treaty is one drawn up either within aninternational organization or at a conference convenedby an international organization, the depositary shallalso refer the proposal to correct or amend the textand the objection to such proposal to the competentorgan of the organization concerned.

5. Whenever the text of a treaty has been cor-rected, amended or replaced under the preceding para-graphs of the present article, the corrected or amendedtext shall be deemed to come into force on the samedate as the original text, unless the States concernedshall otherwise decide.

Commentary(1) This article covers the same problems as ar-

ticle 24, but in cases where the treaty is a multilateralor plurilateral treaty for which there is a depositary.

Here the process of obtaining the agreement of theinterested States to the correction or rectification ofthe texts is complicated by the number of the Statesand it is only natural that the techniques used shouldhinge upon the depositary. In formulating the provi-sions set out in the article the Special Rapporteurhas based himself upon the information contained inthe Summary of the Practice of the Secretary-Generalas Depositary of Multilateral Agreements. This infor-mation, together with a number of precedents, will befound on pages 8-10, 12, 19-20 and 39 (footnote),and in annexes 1 and 2 of that Summary.

(2) The technique employed is for the depositary tonotify all the States that took part in the adoption of thetreaty or who have subsequently signed or accepted it ofthe error or inconsistency and of the proposal to cor-rect or amend the text, while at the same time specify-ing an appropriate time limit within which any objec-tion must be raised. Then, if no objection is raised,the depositary, as agent for the interested States,proceeds to make the correction or amendment, drawup a proces-verbal recording the fact and circulate acopy of the proces-verbal to the States concerned. Theprecedent on page 9 of the Summary of Practiceperhaps suggests that the Secretary-General considersit enough, in the case of a typographical error, toobtain the consent of those States which have alreadysigned the offending text. In laying down a generalrule, however, it seems safer to say that notificationsshould be sent to all the interested States, since it isconceivable that arguments might arise as to whetherthe text did or did not contain a typographical error,e.g. in the case of wrong punctuation that may affectthe meaning.

(3) The only further point that may call for com-ment is, perhaps, the mention in paragraph 4 of thereference of a dispute concerning the amendment ofa text to the competent organ of the internationalorganization concerned, in cases where the treaty waseither drawn up in the organization or at a conferenceconvened by it. This provision is inspired by the prece-dent of the rectification of the Chinese text of the Geno-cide Convention mentioned on page 10 of the Stimmaryof Practice.

ARTICLE 26. THE DEPOSITARY OF PLURILATERAL ORMULTILATERAL TREATIES

1. The depositary of a plurilateral or multilateraltreaty shall normally be the State or internationalorganization in whose archives the original texts ofthe treaty are required to be deposited under an ex-press provision in the treaty.

2. If such a treaty should fail to designate a deposi-tary of the treaty, and unless the negotiating Statesshall have otherwise determined, the depositary shallbe:

(a) In the case of a treaty drawn up within aninternational organization or at an international con-ference convened by an international organization, thesaid organization; or

(b) In the case of a treaty drawn up at a confer-ence convened by the States concerned, the State onwhose territory the conference is convened.

3. In the event of a depositary declining or failingto take up its functions, the negotiating States shallconsult together concerning the nomination of anotherdepositary.


Commentary(1) Paragraph 1 deals with the normal case where

a plurilateral or multilateral treaty designates a par-ticular State or organization as depositary, in whichevent nothing further is needed to complete the ap-pointment of the depositary.

(2) A depositary is really a necessity for thesmooth-working administration of a multilateral treatyand is a great convenience even for a plurilateraltreaty. Accordingly, if the negotiating States shouldfail to nominate a depositary in the treaty itself, para-graph 2 provides either for an international organiza-tion or for the "host" State of the conference atwhich the treaty was drawn up to act as depositary.The actual provisions of paragraph 2 are believed toreflect existing practice in the designation of deposi-taries in plurilateral and multilateral treaties.

(3) The Special Rapporteur is not aware of anycase in which a depositary has declined or failed toact; but this might presumably happen in the case ofa depositary called upon to act under the provisionsof paragraph 2 of the present article. Accordingly, ithas been thought desirable, ex abundanti cautela, tocover the point in paragraph 3.

ARTICLE 27. THE FUNCTIONS OF A DEPOSITARY

1. The depositary shall carry out any functions ex-pressly provided for by the terms of the treaty itself.Subject to the provisions of the treaty, the depositaryshall also carry out the functions set out in the sub-sequent paragraphs of the present article.

2. The depositary shall be responsible:(a) For keeping the original text or texts of the

treaty in safe custody;(b) For preparing and keeping in safe custody any

such further authentic texts in additional languages asmay have been specified in the treaty;

(c) For preparing certified copies of the originaltext or texts and transmitting such copies to all Statesentitled to become parties to the treaty.

3. The depositary shall have the duty:(a) To receive in deposit and keep in safe custody

all instruments of ratification, accession or acceptance,all notifications accepting or objecting to a reserva-tion, and any other instruments relating to the treaty;

(b) To draw up and execute a proces-verbal of anysignature of the treaty or of the deposit of any instru-ment of ratification, accession, or acceptance, or of thereceipt of any notice denouncing the treaty;

(c) To furnish to the State concerned, either in theform of a written receipt or in some other writtenform, an acknowledgement of the receipt by the deposi-tary of any instruments or notification relating to thetreaty;

(d) To inform all the other interested States ofthe fact and date of the receipt of any such instrumentand to transmit to them a copy of the instrument inquestion.

4. In accepting a signature of the treaty or thedeposit of an instrument of ratification, accession oracceptance, the depositary shall have the duty:

(a) To verify that provisions of article 4, para-graphs 2 and 3, of the present article relating to theauthority of a representative to sign, ratify, accede toor accept a treaty are observed;

(b) To verify that the State concerned is one entitledunder the terms of the treaty to sign or, as the casemay be, ratify, accede to, or accept the treaty.

5. The depositary of a multilateral treaty, on receiv-ing a request from a State desiring to accede to thetreaty, shall as soon as possible take steps to com-municate the request to the States indicated in ar-ticle 13, paragraph 3, of the present articles, and inappropriate cases to bring the matter before the com-petent organ of the international organization con-cerned in accordance with the provisions of the sameparagraph.

6. In regard to any reservation, the depositaryshall have the duty:

(a) To verify that the reservation is not one ex-pressly prohibited or impliedly excluded by the termsof the treaty and for that reason inadmissible underarticle 17, paragraph 1, of the present articles;

(b) To verify that the manner in which the reserva-tion has been formulated complies with the provisionsof article 17, paragraph 3, of the present articles;

(c) To comply with any provisions of the treatyconcerning the communication of reservations to otherStates; and subject to any such provisions, to transmitthe text of the reservation to all other States whichare, or are entitled to become, parties to the treaty;

(d) To draw the attention of all such States to any-time limit specified in the treaty within which objectionsto the reservation are required to be filed; and failingany such time limit, to draw their attention to the pro-visions of article 18, paragraph 3 (b) of the presentarticles;

(e) To verify that any notifications of consent orobjection to a reservation have been duly formulated inaccordance with the provisions of article 18, paragraph2, and article 19, paragraph 2, of the present articles;

(/) To communicate to all other States which are,or are entitled to become, parties to the treaty, anynotifications received of consent or objection to areservation and also any notifications of the with-drawal either of a reservation or of an objection toa reservation.

7. Where the treaty is to come into force upon itssignature by a specified number of States or upon thedeposit of a specified number of instruments of ratifi-cation, acceptance or accession or upon some uncertainevent, the depositary shall have the duty:

(a) To inform promptly all the States which are,or are entitled to become, parties to the treaty, of thecoming into force of the treaty when, in the opinionof the depositary, the conditions laid down in the treatyfor its entry into force have been fulfilled;

(6) To draw up a proces-verbal of the entry intoforce of the treaty, if the provisions of the treaty sorequire.

Commentary(1) The depositary of a plurilateral or multilateral

treaty plays a significant procedural role in what isreally the internal administration of the treaty; and anumber of the functions of a depositary have alreadybeen mentioned in connexion with preceding provisionsof the present articles. It seems convenient, however,to collect together in a single article the main functionsof a depositary relating to the conclusion and entryinto force of treaties and that is the purpose of article 26.In drafting its provisions the Special Rapporteur has

Law of treaties 83

naturally paid particular attention to the Summary ofthe Practice of the Secretary-General as Depositary ofMultilateral Agreements.

(2) Paragraph 1 of the draft requires no comment.(3) Paragraphs 2 and 3 deal with the functions of

the depositary in relation to the original text or textsof the treaty, and as the agent of the interested Statesfor receiving, keeping and communicating all instru-ments and notice relating to the treaty. Paragraph 3makes it clear that the depositary is not a mere postbox,but has a certain duty to verify that any signatures orinstruments are in due form.

(4) Paragraph 4 recalls the duties laid upon a de-positary in article 13, paragraph 3, of the presentarticles for the purpose of facilitating the accession ofStates, and especially of new States, to multilateraltreaties.

(5) Paragraph 5 sets out the implications for adepositary of the provisions of articles 17-19 relatingto reservations.

(6) Paragraph 6 deals with the depositary's dutyto notify the interested States of the coming into forceof the treaty, when this is dependent on a specifiednumber of States signing, ratifying, acceding to oraccepting the treaty. The Summary of the Practice ofthe Secretary-General speaks of this duty as the deposi-tary's function to "determine" the date of entry intoforce. It is not clear to the Special Rapporteur whetherthe word "determine" is meant to convey that the

depositary is authorized to determine with bindingeffect the date of entry into force. The point is one ofsubstance and could give rise to controversy if, forexample, a depositary were to take into account aratification that was subject to a reservation to whichstrong objections were taken. However normal it maybe for States to accept the depositary's appreciation ofthe date of the entry into force of a treaty, it seemsdoubtful whether the negotiating States intend to con-fer upon a depositary an absolute right unilaterally todetermine the date of entry into force. Accordinglyparagraph 6 does not go beyond requiring the depositaryto inform the interested States of the date when, in itsopinion, the conditions for the entry into force of thetreaty have been fulfilled.

(7) Chapter VIII of the Summary of the Practiceof the Secretary-General contains a quite extensiveaccount of the Secretary-General's practice as depositarywhen confronted with (a) territorial application clausesand (b) the emergence of new States. This practiceappears to the Special Rapporteur to relate closely tobranches of the law of treaties which fail to be dealtwith either in a later group of draft articles or inconnexion with State succession. Accordingly, it didnot seem to him appropriate to include in the presentarticle the functions of a depositary set out in chapterVIII of that Summary. Indeed, some of the practicerelating to so-called State succession may be contro-versial, so that the definition of the depositary's func-tions with regard to it must await the Commission'sdiscussion of that subject.

FUTURE WORK IN THE FIELD OF THE CODIFICATION AND PROGRESSIVEDEVELOPMENT OF INTERNATIONAL LAW

[Agenda item 2]

DOCUMENT A/CN.4/145

Working paper prepared by the Secretariat[Original text: French]

[22 March 1962]

CONTENTS

Paragraphs Page

INTRODUCTION

(a) Resolution 1505 (XV) 1-5 85(6) Resolution 1686 (XVI) 6-7 85(c) Programme of work established by the International Law Commission in 1949 . . . 8-9 86(d) Work completed by the International Law Commission 10 86(e) Topics under study or to be studied by the International Law Commission 11-13 86(/) Purpose and scope of the present document 14-17 87

PART I. POSSIBILITY OF CODIFYING THE TOPICS INCLUDED IN THE LIST DRAWN UP BY THEINTERNATIONAL LAW COMMISSION IN 1949

1. Recognition of States and Governments 18-41 87

2. Succession of States and Governments 42-49 88

3. Jurisdictional immunities of States and their property

(a) General immunity 50-65 89

(b) Immunity with respect to commercial transactions 66-68 89

4. Jurisdiction with regard to crimes committed outside national territory 69-82 90

5. The legal status of aliens 83-90 91

6. The right of asylum or political refuge 91-99 91

7. Sources of international law 100-102 92

8. Recognition of acts of foreign States 103-108 92

9. Territorial domain of States 109-118 92

10. Pacific settlement of disputes 119 93(a) General remarks 120-128 93(b) Prohibition of war 129-130 94(c) Recourse to procedures for investigation, mediation and conciliation 131-136 94(d) More frequent recourse to arbitral and judicial settlement 137-140 94(e) Obligatory jurisdiction of the International Court of Justice 141-145 95

11. Law of war and neutrality 146-156 95

12. Fundamental rights and duties of States 157-161 96

PART II. POSSIBILITY OF CODIFYING "NEW" TOPICS

1. Law of space 162-169 96

2. Law of international organizations 170-176 97

3. Human rights and defence of democracy

(a) Preparation of a draft Convention for the defence of democracy, to be co-ordinated with the work currently being done along those lines by the Organi-zation of American States and the Inter-American Commission for theProtection of Human Rights 177-178 97

84

Future work in the field of the codification and progressive development of international law 85

CONTENTS (continued)

(b) International protection of human rights through the creation of a specialinternational court

(c) Jurisdiction of international courts and organizations with special referenceto the plea of exclusion by the domestic jurisdiction in relation to questionsaffecting human rights

4. Independence and sovereignty of States

(a) The acquisition of statehood(b) The right of a State, in particular a new State, to determine, to implement

and to perfect in its political form, socially and economically in conformitywith the professed ideology and to take all necessary steps to accomplish this,e.g., decolonization, normalization, nationalization, and also steps to controlall its natural resources and ensure that those resources are utilized for theinterests of the State and the people

(c) The right of every State to take steps which, in its opinion, are necessary tosafeguard its national unity, its territorial integrity and for its self-defence

(d) Elaboration of legal principles ensuring the granting of independence tocolonial countries and peoples

(e) Acts of one State in the territory of another State(/) The principle of non-intervention(g) The principle of self-determination of peoples

5. Enforcement of international law

Paragraphs

179-186

187

188

189

6. Utilization of international rivers

7. Economic and trade relations

(a) The rules governing multilateral trade(b) The rules pertaining to the various forms of economic assistance to under-

Page

97

98

98

98

developed countries

190-194195

196-198199-200

201-203

204-210

211-212

213-215

98989899

99

99

99

99

Introduction

(a) RESOLUTION 1505 (XV)

1. In its resolution 1505 (XV) of 12 December1960, the General Assembly decided to place on theprovisional agenda of its sixteenth session the questionentitled "Future work in the field of the codification andprogressive development of international law", " in or-der to study and survey the whole field of internationallaw and make necessary suggestions with regard to thepreparation of a new list of topics for codification andfor the progressive development of international law".

2. The resolution also invited Member States tosubmit in writing to the Secretary-General, before1 July 1961, any views or suggestions they might haveon this question for consideration by the GeneralAssembly.

3. The Secretary-General received observationsfrom seventeen Governments and communicated themto Member States in document A/4796 and Add. 1-8.A summary of these replies, prepared by the Secre-tariat, was issued as document A/C.6/L.491 andCorr.l and 2.

4. The International Law Commission devoted anumber of meetings to this question at its thirteenthsession (614th to 616th meetings).1

5. In accordance with resolution 1505 (XV), theGeneral Assembly placed the question on the agenda

1 See Report of the International Law Commission coveringthe work of its thirteenth session, Official Records of the Gen-eral Assembly, Sixteenth Session, Supplement No. 9 (A/4843),paras. 40-41.

of its sixteenth session and referred it, for study andreport, to the Sixth Committee, which considered it atits 713th to 730th meetings, from 14 November to 13December 1961.

(b) RESOLUTION 1686 (XVI)

6. On the recommendation of the Sixth Committee,the General Assembly, on 18 December 1961, adopted,resolution 1686 (XVI) , reading as follows:

"The General Assembly,"Recalling its resolution 1505 (XV) of 12 De-

cember 1960,"Considering that the conditions prevailing in the

world today give increased importance to the roleof international law in relations among nations,

"Emphasising the important role of codificationand progressive development of international lawwith a view to making international law a moreeffective means of furthering the purposes and prin-ciples set forth in Articles 1 and 2 of the Charter ofthe United Nations,

"Mindful of its responsibilities under Article 13,paragraph 1 a, of the Charter to encourage the pro-gressive development of international law and itscodification,

"Having surveyed the present state of internationallaw with particular regard to the preparation of anew list of topics for codification and progressivedevelopment of international law,

"1. Expresses its appreciation to the InternationalLaw Commission for the valuable work it has already


accomplished in the codification and progressive de-velopment of international law;

"2. Takes note of chapter III of the report of theInternational Law Commission covering the workof its thirteenth session;

"3. Recommends the International Law Commis-sion:

"(a) To continue its work in the field of the lawof treaties and of State responsibility and to includeon its priority list the topic of succession of Statesand Governments;

" (b) To consider at its fourteenth session its futureprogramme of work, on the basis of sub-paragraph(a) above and in the light of the discussion in theSixth Committee at the fifteenth and sixteenth ses-sions of the General Assembly and of the observa-tions of Member States submitted pursuant to reso-tion 1505 (XV), and to report to the Assemblyat its seventeenth session on the conclusions it hasreached;

"4. Decides to place on the provisional agenda ofits seventeenth session the question entitled 'Con-sideration of principles of international law con-cerning friendly relations and co-operation amongStates in accordance with the Charter of the UnitedNations'."7. The only paragraph of this resolution requiring

action by the Commission is paragraph 3, which isitself divided into two sub-paragraphs. Sub-paragraph(a) requires no comment. Sub-paragraph (b), however,which recommends the Commission to consider itsfuture programme of work, raises many problems inconnexion with the selection of possible topics.

(c) PROGRAMME OF WORK ESTABLISHED BY THEINTERNATIONAL LAW COMMISSION IN 1949

8. At its first session in 1949, the International LawCommission established a programme of work on thebasis of a memorandum prepared by the Secretariat,entitled Survey of International Law in relation to theWork of Codification of the International Law Com-mission.2

9. The Commission considered twenty-five topics,which are listed in the report of its first session.3 Afterdue deliberation, it drew up a provisional list of four-teen topics selected for codification; it was understoodthat the list was only provisional and that additions ordeletions might be made after further study by theCommission or in compliance with the wishes of theGeneral Assembly.4

(d) WORK COMPLETED BY THE INTERNATIONAL LAWCOMMISSION

10. Since its first session, the International LawCommission has studied the following topics: regime ofthe high seas; regime of territorial waters; nationality,including statelessness; diplomatic intercourse and im-munities ; consular intercourse and immunities; andarbitral procedure. The Commission has also studiedthe question of the continental shelf and the conserva-tion of the living resources of the high seas in connexion

2 United Nations publication, Sales No.: 48.V.I (1).3 See Report of the International Law Commission covering

its first session, General Assembly Official Records, FourthSession, Supplement No. 10 (A/925), para. 15.

4 Ibid., para. 16.

with the law of the high seas.5 At the request of theGeneral Assembly, it has prepared a draft declarationon the rights and duties of States and a draft code ofoffences against the peace and security of mankind,formulated the Niirnberg principles, and consideredways and means for making the evidence of customaryinternational law more readily available, the problemof international criminal jurisdiction, the question ofdefining aggression and the question of reservations tomultilateral conventions.

(e) TOPICS UNDER STUDY OR TO BE STUDIED BY THEINTERNATIONAL LAW COMMISSION

11. Several reports have been submitted by the Spe-cial Rapporteurs on two other topics—the law of trea-ties and State responsibility—and the InternationalLaw Commission has begun discussion of these ques-tions. In its resolution 1686 (XVI), the GeneralAssembly recommended the Commission to continue itsstudies of these topics. The law of treaties is includedin the agenda of the present session. The new Rappor-teur on this topic, Sir Humphrey Waldock, will be sub-mitting a report (A/CN.4/144). Mr. Garcia Amador,the Rapporteur on the topic of State responsibility, isno longer a member of the Commission, and the ques-tion of his successor will have to be considered. In thesame resolution, the Assembly requested the Inter-national Law Commission to include the topic of suc-cession of States and Governments on its priority list.

12. In addition, the General Assembly had pre-viously referred the following questions to the Inter-national Law Commission:

(a) In its resolution 1289 (XIII) of 5 December1958, it invited the Commission to give further con-sideration to the question of relations between Statesand inter-governmental international organizations atthe appropriate time, after study of consular intercourseand immunities and ad hoc diplomacy had been com-pleted by the United Nations. The Commission, at itseleventh session, took note of that resolution and re-solved that in due course consideration would be givento the matter.

(b) In its resolution 1400 (XIV) of 21 November1959, it requested the International Law Commission,as soon as it considered it advisable, to undertake thecodification of the principles and rules of internationallaw relating to the right of asylum. The Commission,at its twelfth session, took note of that resolution anddecided to defer further consideration of that questionto a future session.

(c) In its resolution 1453 (XIV) of 7 December1959, it requested the Commission, as soon as it con-sidered it advisable, to undertake the study of thequestion of the juridical regime of historic waters, in-cluding historic bays. The Commission, at its twelfthsession, decided to defer consideration of that subjectto a future session. A study on the subject, prepared bythe Secretariat, will be circulated at the present sessionof the Commission (A/CN.4/143).

13. Lastly, in its resolution 1687 (XVI) of 18 De-cember 1961, the General Assembly requested the

5 The six topics in the list of fourteen which have not yetbeen studied by the Commission are: recognition of States andGovernments, succession of States and Governments, jurisdic-tional immunities of States and their property, jurisdictionwith regard to crimes committed outside national territory,treatment of aliens, right of asylum.


International Law Commission as soon as it consideredit advisable, to study further the subject of specialmissions and to report thereon to the General Assembly.

(/) PURPOSE AND SCOPE OF THE PRESENT DOCUMENT

14. Apart from these topics, which are still beforethe International Law Commission, the replies by Gov-ernments (A/4796 and Add. 1-8) have indicated anumber of topics suitable for codification by the Com-mission; some already appeared in the list of fourteentopics or in the list of twenty-five topics drawn up bythe Commission in 1949, while others were new subjects,in the sense that the Commission had never consideredmaking a study of them.

15. The present document has been prepared on thebasis of the replies by Governments. However, thequestion of peaceful coexistence, which was suggestedby several Governments for codification and which wasthe subject of a number of statements in the SixthCommittee, has not been included in view of the factthat the Sixth Committee has proposed to the GeneralAssembly that it should place on the provisional agendaof its seventeenth session the question entitled "Con-sideration of principles of international law concerningfriendly relations and co-operation among States inaccordance with the Charter of the United Nations"(see above, resolution 1686 (XVI) , operative para-graph 4) .

16. The study consists of a summary, topic by topic,of the ideas expressed in the replies of Governmentsand in statements made in the Sixth Committee at thefifteenth and sixteenth sessions of the General As-sembly. The opinions of members of the InternationalLaw Commission have been included. Where appro-priate, the views of members of the League of NationsCommittee of Experts for the Progressive Codificationof International Law at its fourth session from 1925 to1928 have been given. Use has also been made of theSurvey of International Law in relation to the Workof Codification of the International Law Commission,6

a memorandum prepared in 1949 by the Secretariat inaccordance with article 18, paragraph 1, of the Statuteof the International Law Commission, which statesthat : "The Commission shall survey the -whole field of

international law with a view to selecting topics forcodification, having in mind existing drafts, whethergovernmental or not". Account has also been taken,where this was found necessary, of studies undertakenor decisions reached by other United Nations bodies andinter-governmental or other organizations. Lastly, thesummary is accompanied by a number of commentariesand notes.

17. This document is divided into two parts: part Ideals with the possibility of codifying topics includedin the lists drawn up by the International Law Com-mission in 1949, part II with the possibility of codifyingnew topics, using that adjective in the sense alreadyindicated.

Part I. Possibility of codifying the topics includedin the list drawn up by the International LawCommission in 1949

1. RECOGNITION OF STATES AND GOVERNMENTS

18. At its first session, held at Geneva in 1925, theCommittee of Experts for the Progressive Codification

of International Law decided, during the debate on itsagenda, to withdraw the item entitled "Form of Recog-nition of Governments: International Position of Gov-ernments which have not been formally recognized".7

19. Dr. Jose Leon Suarez (Argentina), who hadproposed the inclusion of the item, emphasized itsextreme importance. He mentioned, inter alia, that"misunderstandings and difficulties arose every mo-ment". He admitted that "it was legitimate for Statesoccasionally to exercise measures of coercion for reasonsof a political kind, but when those reasons did not existconsiderable delays occasionally occurred because therewas no test by which the form of recognition of a Gov-ernment could be regulated". In his opinion, "the mo-ment a sovereign State possessed a Government thereought to be an international formula or practice whichwould permit the automatic recognition of the existenceof that Government".8

20. On the other hand, Professor James LeslieBrierly (United Kingdom) said that the Committee"should refuse to discuss this question of all otherssince the regulation of it by means of international con-ventions was neither realisable nor desirable. The diffi-culties arising from it and the delicacy of the questionwere well known, and, from a purely legal point of view,it was a subject which neither could nor ought to betreated juridically. To take an analogy, it was as thougha State passed a law regulating the choice of friendsto be adopted by its citizens. Such a law, if passed,would be null and void at the outset and the same wastrue of a regulation of international relations".9

21. Mr. Charles de Visscher (Belgium) and Mr.Fromageot (France) supported that view.

22. Dr. Barboza de Magalhaes (Portugal) sug-gested that "perhaps an immediate study could be madeof the form which this recognition should assume, whichwas a legal question".

23. Professor Diena (Italy) thought that the Com-mittee could also undertake the examination of theinternational position of Governments which had notbeen formally recognized, because that was an essen-tially legal question.

24. The Committee decided to delete the questionfrom its agenda, on the understanding that Dr. Suarezcould "present at the next session a detailed list of thepoints involved in the question".

25. Dr. Suarez agreed with the view of the ma-jority that the inquiry should be put aside "for reasonsof a political nature, but he desired the Committee tostate definitely that the question was an urgent one,that had been put aside for political reasons, and thathe personally would have desired to see it investigated".

26. The International Commission of American Jur-ists introduced the question of recognition into fiveof the nine articles10 of its Project No. 2 entitled"States: Existence—Equality—Recognition", which wasprepared in 1927 for the Sixth International Conferenceof American States.

27. Two articles (articles 6 and 7) of the Conventionon the rights and duties of States, adopted in 1933

« Op. cit.

i League of Nations, Committee of Experts for the Progres-sive Codification of International Law, first session, eighthmeeting.

8 Ibid.»Ibid.10 See American Journal of Intermtional Law, vol. 22 (1928),

Special Supplement, p. 240.


by the Seventh International Conference of AmericanStates, dealt with recognition.11

28. The topic was also the subject of a resolutionadopted by the Institute of International Law in 1936.12

29. The Harvard Research began a study of thequestion of recognition but did not make sufficientprogress to be able to prepare a draft convention.

30. In 1949, at the first session of the InternationalLaw Commission,13 Mr. Alfaro, Mr. Brierly, Mr.Cordova, Mr. Sandstrom, Mr. Scelle and Mr. Yepesexpressed support for codification of the topic "recog-nition of States and Governments". The Chairman,Mr. Hudson, pointed out that the subject had severalaspects and had often been considered a political ratherthan a legal question.

31. Mr. Cordova said that by providing for theadmission of new States to the United Nations, theCharter had tacitly acknowledged that collective recog-nition of such States was possible. That was furtherreason for not omitting that question from the list ofsubjects suitable for codification.

32. Mr. Scelle was of the opinion that the objectionthat had been raised that the question was politicalrather than legal was not pertinent; the Commission'stask was precisely to distinguish what was legal evenin the most political questions.

33. Mr. Yepes pointed out that the recognition ofa new State should not be confused with that of a newGovernment. It was the latter only which had a politicalrather than a legal character.

34. Mr. Brierly observed that his opinion hadchanged since the time of the League of Nations andhe thought that an attempt should be made to codifythe question, even if it was not certain to be successful.

35. At the thirteenth session of the International LawCommission, Mr. Bartos suggested that the topic shouldbe codified.14

36. Of the Governments which submitted replies tothe General Assembly at its sixteenth session, threeexpressed support for a study of the question: Ghana(A/4796/Add.l), Venezuela (A/4796/Add. 5) andYugoslavia (A/4796).

37. In its observations, Colombia (A/4796) pointedout: "The Charter of the Organization of AmericanStates refers incidentally to the recognition of Statesin article 9. Furthermore, in so far as the question ofrecognition of Governments is concerned, the anteced-ents for relations between American States include theTobar (Minister for Foreign Affairs of Ecuador, 1908)doctrine and the Estrada (Minister for Foreign Affairsof Mexico, 1930) doctrine. Also relevant are resolu-tions 35 and 36 of the Ninth International Conferenceof American States dealing with the right of legationand the recognition of de facto Governments, as wellas the work done on this latter topic by the Inter-American Juridical Committee and the Inter-AmericanCouncil of Jurists and reported on in the records of thefour meetings of the latter body."

38. The Netherlands (A/4796/Add.7) consideredthat discussion of the topic "might be postponed forthe time being because a number of basic questionsare interwoven with political considerations".

11 The International Conferences of American States, FirstSupplement (1933-1940), p. 122.

12 American Journal of International Law, vol. 30 (1936),Supplement, p. 185.

13 Summary record of the fifth meeting, paragraphs 1-13.14 Summary record of the 615th meeting, paragraph 13.

39. During the discussion in the Sixth Committee,the representatives of Denmark (A/C.6/SR.725),Nicaragua (A/C6/SR.722), Mexico (A/C.6/SR.722)and Yugoslavia (A/C.6/SR.714) expressed themselvesin favour of a study of the topic.

40. The representative of Yugoslavia, enlarging onthe ideas contained in his Government's reply, statedinter alia that it was not so much a matter of "seekingto find an answer to the classical question of the rela-tionship between the declarative and constitutive theoriesof recognition, although that matter, too, would have tobe treated within the framework of the codification ofthe general topic". The main point was "to ascertainthe criteria that had recently governed the recognitionof States and Governments and to find out whethercertain general rules might be established on that basis.In addition, the legal significance of admission to mem-bership in the United Nations and in other internationalorganizations, more specifically as regards collectiverecognition, should be defined. Of no less urgency wasthe question of the recognition of insurgents and ofGovernments. The uniformity of practice which couldbe achieved through the codification of those ruleswould be of considerable interest from the point of viewof establishing more stable relations among States andof facilitating the position of newly independent States".

41. On the other hand, the representative of Brazil(A/C.6/SR.721 ) included the topic among those whichwere essentially dominated by political considerations.In his view "The Commission was unlikely to succeedin attempts to deal with subjects of that type for whileit might produce clever formulations, it would notachieve effective solutions".

2. SUCCESSION OF STATES AND GOVERNMENTS

42. The League of Nations Committee of Experts leftthis matter aside, although Mr. de Visscher was infavour of including it in the list of topics for codifica-tion.15 The Survey of International Law states that"Considerations of justice and of economic stability inthe modern world probably require that in any systemof general codification of international law the questionof State succession should not be left out of account"and that topic "would seem to deserve more attentionin the scheme of codification than has been the casehitherto".10

43. At the first session of the International LawCommission, Mr. Alfaro, Mr. Cordova, Mr. Frangoisand Mr. Scelle spoke in favour of codification of thetopic. In the absence of objection,17 the question wasincluded in the provisional list of topics for codifi-cation.18

44. At the thirteenth session of the International LawCommission, Mr. Bartos, Mr. Padilla Nervo, Mr. Pal,Mr. Tunkin and. Mr. 2ourek suggested that the topicshould be codified.19

45. In their replies submitted to the Assembly atits sixteenth session, eight Governments indicated thatthey favoured a study of the topic: Austria (A/4796/Add.6), Belgium (A/4796/Add.4), Ceylon (A/4796/Add.8), Ghana (A/4796/Add.l), Mexico (A/4796/

15 L of N, Committee of Experts, first session, secondmeeting.

16 Survey of International Law, op. cit., page 32.17 Ibid.18 Summary record of the fifth meeting, paragraphs 14-15.19 Summary records of the 614th and 615th meetings.


Add.l), the Netherlands (A/4796/Add.7), Venezuela(A/4796/Add.5) and Yugoslavia (A/4796).

46. In its comments, Mexico stated that "Since manynew nations have recently become independent, thisproblem takes on particular importance. A study of thetopic would naturally involve important questions of allkinds: the validity of treaties, the problem of nation-alities, inheritance, debts, acquired rights, indemnifica-tion, compensation and, in addition, certain problemswhich might arise concerning membership in interna-tional organizations. Problems which in future mightemerge in the converse case of the amalgamation orfederation of a number of States might also be includedin a study of this topic".

47. In the opinion of Yugoslavia, the topic had"a substantial impact upon a number of questions ofvital concern to the newly independent States and theirefforts towards full and complete emancipation".

48. The discussion in the Sixth Committee revealeda very clear tendency in favour of codification of thetopic. There was no opposition.

49. Resolution 1686 (XVI) of 18 December 1961recommended the International Law Commission, interalia, "to include on its priority list the topic of suc-cession of States and Governments".

3. JURISDICTIONAL IMMUNITIES OF STATES AND THEIRPROPERTY

(a) General immunity

50. This is a topic on which the domestic case-lawof States has produced a greater abundance of materialthan in any other branch of international law. It coversthe entire field of the jurisdictional immunities of Statesand their property, their ships, their sovereigns andtheir armed forces. There is, moreover, a very ex-tensive bibliography on the subject.

51. The Committee of Experts for the ProgressiveCodification of International Law dealt with the topic,starting with its third session in 1927. It adopted aquestionnaire No. 11 dealing with the competence ofthe courts in regard to foreign States.

52. After full discussion, the Committee was ofopinion that, even though the conclusion of a uniformagreement between the Powers might meet with seriousdifficulties, these difficulties were not the same for allpar ts of the subject, and it felt that it was desirableto ascertain, exception always being made of the case ofacts of S t a t e : " W h e t h e r and in what cases, particularlyin regard to action taken by a State in the exerciseof a commercial or industrial activity, a State can beliable to be sued in the courts of another State" . 2 0

53. T h e Committee 's rappor teur on the subject, Mr .Matsuda ( J a p a n ) , concluded: " I t is unanimously ad-mitted that the courts of one State have no jurisdictionover another State where the foreign State is sued foracts accomplished by it in the exercise of its sovereignrights . Apar t from this case, the opinion of wri tersand experts in the various countries is divided".2 1

54. In its Second Report to the Council,22 the Com-mittee of Expe r t s stated that, in its view, the topic was" r ipe" for codification.23

20 L of N, C.204.M.78.1927.V.2 1 Ibid., annex, pp. 6-7.22 L of N, A.15.1928.V. (C.P.D.I.) 117 (1). See also Minutes

of the Fourth Session, fourth meeting, of the Committee ofExperts, L of N, C.395.1928.V, pp. 22-23.

23 Ibid., p. 6.

55. Out of twenty-four replies received from Gov-ernments, twenty-one recognized that codification ofthe topic was desirable and possible, while only threeexpressed the opposite view.

56. It must be acknowledged, however, that someof the Governments which were in favour of the codifi-cation of the topic formulated a number of importantreservations.24

57. A draft convention with a detailed commentarywas prepared by the Harvard Research.25

58. There is also a Brussels Convention of 10 April192626 for the Unification of Certain Rules relatingto the Immunity of State-owned Vessels, which providesfor the immunity of such vessels and their cargo in timeof peace.

59. The Convention on the Territorial Sea and theContiguous Zone, adopted in 1958 by the United NationsConference on the Law of the Sea, also contains anarticle 22 which deals with the immunities enjoyedby Government ships.27

60. At the first session of the International LawCommission, the qtiestion28 was placed, without ob-jection, in the list of topics for codification. Mr. Sand-strom and Mr. Spiropoulos were in favour of its codifi-cation.29

61. In the replies by Governments submitted to theGeneral Assembly at its sixteenth session, two Govern-ments—Belgium (A/4796/Add.4) and the Netherlands(A/4796/Add.7)—suggested that the topic should bestudied.

62. Belgium stated that "it would seem logical,after the consideration of these problems [successionof States, special missions and right of asylum], toexamine the question of the jurisdictional immunitiesof States and of their property".

63. In the course of the discussion in the SixthCommittee, the representatives of Belgium (A/C.6/SR.721), Denmark (A/C.6/SR.725), Ireland (A /C.6/SR.727) and New Zealand (A/C.6/SR.719) ex-presses themselves in favour of a study of the topic.

64. The representative of Brazil (A/C.6/SR.721)said that a sensible solution of some aspects of thatproblem would encourage trade between countries withdifferent social systems. Although his delegation realizedthat the subject was a controversial one it would notoppose its reference to the International Law Com-mission for study.

65. According to the Survey of International Law,"it is doubtful whether considerations of any nationalinterest of decisive importance stand in the way of acodified statement of the law commanding the agree-ment of a vast majority of nations on this matter".30

(b) Immunity zvith respect to commercial transactions

66. The codification of a more limited aspect of thequestion of the jurisdictional immunities of States andtheir property was proposed by Ceylon (A/4796/Add.8). This was the question of the jurisdictional

24 Ibid., p. 93.2 5 "Competence of Courts in regard to foreign States"

A.J.I.L., vol. 26 (1932), Supplement, pp. 455-460.2 6 See text in Hudson, International Legislation, vol. I l l ,

pp. 1837-1845.2 7 United Nations Conference on the Law of the Sea, Official

Records, Vol. II, Plenary Meetings, annexes, p. 132.2 8 Initially entitled "Jurisdiction over foreign States".2 9 Summary record of the fifth meeting, paragraphs 38-39.3 0 Op. cit., page 34.


immunities of States with respect to commercial trans-actions. There exist a great number of publications andjudicial decisions on this subject.

67. The Asian-African Legal Consultative Commit-tee considered this question at its first session (NewDelhi, 1957).

68. A final report on the immunities of States withrespect to commercial and other transactions of aprivate nature was adopted at the second session (Cairo,1958).31 This final report was revised at the thirdsession (Colombo, I960).32

4. JURISDICTION WITH REGARD TO CRIMES COMMITTEDOUTSIDE NATIONAL TERRITORY

69. The Committee of Experts for the ProgressiveCodification of International Law, which consideredthis topic in 1926 at its second session,33 restricted theproblem to the competence of States, in criminal cases,with regard to crime committed outside their territoryby persons other than their own nationals.

70. A sub-committee, of which Mr. Brierly was therapporteur, had to answer the question whether it ispossible to lay down, by way of conventions, principlesgoverning the criminal competence of States in regardto offences committed outside their territories, and,if so, what these principles should be.

71. In his report,34 Mr. Brierly stated: "The prac-tice of States is far from uniform. Nor is it easy, exceptin the case of those States which maintain the territorialtheory, to infer from the practice adopted by a Statethe theory upon which it bases its assumption of juris-diction, since we cannot safely argue from the fact thata State assumes jurisdiction only in certain cases thatit regards those cases as the only ones in which theassumption of jurisdiction would be legitimate. It would,however, appear that there are few, if any, States whichwould maintain the view that international law leavesan absolute discretion in this matter to every State.Most States, if not all, would appear to regard theterritorial basis of jurisdiction as the normal rule, andthe question of real doubt is whether international lawpermits any, and, if so, what, exceptions from it. We feltassured that any conventional regulation of the matterwould necessarily have to be based on this assumption".

72. Among the exceptions to the territorial theory,the one most commonly invoked is that in favour ofjurisdiction in regard to crimes against the securityor good name of a State.

73. In the Committee,35 the rapporteur explainedthat, while the question whether it is possible to laydown by way of conventions principles governing thecriminal competence of States in regard to offences com-mitted outside their territories seemed a simple onein certain respects, it nevertheless presented a majorpractical difficulty which arose from the fact that therewas no uniform practice in the matter. There were twocompletely opposed viewpoints, each represented by alarge group of States. Furthermore, some States claimedthe right to punish certain crimes committed outsidetheir own territory, not only by their nationals, in whichcase the right to claim jurisdiction was unquestioned,

31 Asian-African Legal Consultative Committee, second ses-sion, pages 29 to 51.

32 Ibid., third session, pages 55-81.3 3 L of N, Committee of Experts, second session, twelfth

meeting.34 L of N, C.P.D.I., 26, page 2.35 Twelfth and thirteenth meetings, 19 January 1926.

but also by aliens. O n the other hand, other Sta tes ,which mainta ined the so-called " te r r i to r ia l " theory, nomore claimed to have jur isdict ion over aliens for actscommit ted outside their te r r i tory than they recognizedthat other States might exercise their jurisdiction in thecontrary case.

It would be difficult, the rapporteur continued, toreach agreement in the Committee if a compromisewas not adopted, and a compromise implied concessionson the part of the two legal schools.

After a close study of the special questions to whichattention was drawn by the Brierly report and by Mr.de Visscher, a member of the sub-committee, the Com-mittee found that "international regulation by way ofa general convention, although desirable, would en-counter grave political and other obstacles".36

74. The Committee limited its action to communi-cating Mr. Brierly's report to the Governments "to givethem the opportunity of profiting by the light [he had]thrown on the subject".

75. This question was the subject of regulations laiddown in the Havana Convention of 1928 (the Busta-mante Code) and of resolutions adopted by the Instituteof International Law at Munich in 1883 and at Cam-bridge in 1931.37 It has been studied at a series of inter-national congresses on comparative and criminal law.The Harvard Research examined the subject and pre-pared a draft convention, according to which "Theinvestigation indicates that States have much more incommon with respect to penal jurisdiction than isgenerally appreciated".38

76. At the first session of the International Law•Commission, Mr. Brierly, Mr. Scelle and Mr.Spiropoulos expressed themselves in favour of codifi-cation of the question but did not recommend thatit should be given priority. Mr. Cordova opposed itscodification.39 The Commission decided to inscribe thequestion on its provisional list.

77. Mr. Scelle thought that that question was of theutmost interest both in itself and also in so far as itrelated to the formulation of the principles of Nurnbergand the drafting of an international criminal code.

78. Mr. Hudson and Mr. Koretsky pointed out thatthe question concerned national jurisdiction only inthe case of crimes committed abroad by aliens, andthat, viewed from that angle, it had no connexionwith the principles of Nurnberg nor with the codeof laws on crimes against the peace and security ofhumanity.

79. Air. Brierly shared the optimistic views of theHarvard Research on the possibility of codification ofthe subject.

80. Mr. Spiropoulos thought that the problem wasclearly a question of international law of great practicalinterest.

81. Mr. Cordova thought a distinction should bemade between crimes committed abroad against a Stateand those committed against an individual. In his opin-ion, the first category only could be considered anappropriate topic for codification.

82. In the replies from Governments which weresubmitted to the General Assembly at its sixteenth

3« L of N, C.50.M.27.1926.V.37 See Annuaire de I'Institut de droit international, 1931,

pp. 145-152.**AJJ.L., vol. 29 (1935), Supplement, p. 446.39 Summary record of the fifth meeting, paras. 47-54.


session, the Netherlands (A/4796/Add.7) and Vene-zuela (A/4796/Add.5) expressed the view that thequestion should be studied.

5. T H E LEGAL STATUS OF ALIENS

83. The movement towards codification has not yetaffected this topic, apart from the somewhat generalprovisions of the Convention concerning the statusof aliens40 adopted by the Sixth International Confer-ence of American States in 1928 on the basis of aproject prepared by the International Commission ofAmerican Jurists41 in 1927, and certain aspects dis-cussed at The Hague in 1930 in connexion with theresponsibility of States for damage to the person andproperty of aliens (taxation of aliens, right of establish-ment, right to follow any occupation, etc.).

84. The Economic Committee of the League ofNations prepared a draft convention42 on this subject;the text was submitted to the International Conferenceon Treatment of Foreigners which met in Paris from5 November to 5 December 1929 but which did notsucceed in adopting a convention.43

85. According to the Survey of International Law,"In one definite respect the law relating to the treat-ment of aliens would seem to require authoritativestatement or restatement, namely, with regard to (1)the full equal protection of such rights as they possessby the law of the State, and (2) absolute recognitionand protection of what the Charter of the UnitedNations describes as human rights and fundamentalfreedoms."44

86. "It is possible that in the recent experience ofvarious controversies on the subject there may bediscernible a solution which would act both as aninducement to and as a basis of codification."45

87. At the first session of the International LawCommission, Mr. Sandstrom, Mr. Scelle and Mr.Spiropoulos supported the inclusion of this question,which was not opposed.46 The Chairman (Mr. Hudson)thought that the question could be linked up with thequestion of State responsibility. Mr. Sandstrom thoughtthat it served as an introduction to the latter question.In Mr. Scelle's view, the question of State responsibilitywas subordinate to that of the treatment of aliens, .sincethe responsibility only arose if the State was underan obligation to treat aliens in a certain way. At thethirteenth session of the International Law Commission,Mr. Ago suggested codification of the question.47

88. In the replies from Governments which weresubmitted to the General Assembly at its sixteenthsession, Ceylon (A/4796/Acld.8), Ghana (A/4790/Add.l) and Venezuela (A/4796/Add.5) proposed thatthe question should be studied.

89. During the discussions in the Sixth Committee,the representative of New Zealand (A/C.6/SR.719)supported that proposal.

90. The Asian-African Legal Consultative Com-mittee considered the treatment of aliens at its second

4 0 The International Conferences of American States 1889-1928, New York, Oxford University Press, 1931, pp. 415-416.

4 1 See A.J.I.L., vol. 22 (1928), Special Supplement, pp. 242-243.

4 2 League of Nations, Preparatory Documents, C.36.M.21.1929.11.

4» See League of Nations, Proceedings, C.97.M.23.1930.II.4* Tip. cit., n. 46.« Ib id . , p. 47.4 6 Summary record of the fifth meeting, paras. 96-99.4 7 Summary record of the 615th meeting, para. 32.

(Cairo, 1958) and third (Colombo, 1960) sessions.48

At its fourth session (Tokyo, 1961) it adopted a setof eighteen articles setting forth principles concerningadmission and treatment of aliens.49 At its fifth session(Rangoon, 1962) the Committee was to study thetopic of State responsibility and the diplomatic protec-tion of citizens abroad.50

6. T H E RIGHT OF ASYLUM OR POLITICAL REFUGE

91. The question of the right of political refuge,though closely linked to that of the non-extraditionof persons charged with political offences, is a muchbroader topic. It has again become a subject of urgentinterest in the past fifteen years and its importanceis beyond question, for the principle of the right ofrefuge is not uniformly accepted even by States whichare relatively liberal in this matter.

92. The American States concluded a Pan AmericanConvention on the right of asylum (diplomatic asy-lum)51 in 1928; in addition, the Seventh InternationalConference of American States adopted a general Con-vention of Political Asylum52 in 1933. In 1954, theTenth Inter-American Conference adopted a Conven-tion on Diplomatic Asylum and a Convention onTerritorial Asylum.53

93. At the first session of the International LawCommission, Mr. Alfaro, Mr. Scelle and Mr. Yepessuggested that this question should be included in thelist,54 and the Commission so decided.

94. The General Assembly adopted at its four-teenth session resolution 1400 (XIV) of 21 November1959, requesting the International Law Commission,as soon as it considered it advisable, to undertakethe codification of the principles and rules of interna-tional law relating to the right of asylum. The Inter-national Law Commission took note of this resolutionat its twelfth session (1960) but decided to deferconsideration of the question to a future session.

95. At the General Assembly's fifteenth session,when the report of the International Law Commissionon the work of its twelfth session was under discussionin the Sixth Committee, the United Kingdom repre-sentative (A/C.6/SR.652) expressed the view that adraft declaration on the right of asylum was an itemwhich the Committee could usefully discuss.

96. The representative of Bolivia (A/C.6/SR.652),supported by the representative of Spain (A/C.6/SR.653), proposed that the Sixth Committee shouldtake up the question to consider its legal aspects, thesocial aspects being within the competence of theCommission on Human Rights and the Third Com-mittee.

97. The Commission on Human Rights has beendealing with this question since its thirteenth session in1957. After discussion at its fifteenth (1959) and six-teenth (1960) sessions, the Commission adopted a draftdeclaration in 1960 and transmitted it to the Economicand Social Council which, by its resolution 772 E

4 8 See Asian-African Legal Consultative Committee, thirdsession, Colombo 1960, pp. 82-161.

49 A/CN.4/139, annex 1.5 0 Ibid., section entitled "Status of aliens and State respon-

sibility."5 1 The International Conferences of American States 1889-

1928, op. cit., pp. 434-435.wibid., First Supp\cment, 1933-1940, pp. 116-117.5 3 Pan American Union, Law and Treaty Series, Convention

on Diplomatic Asylum: ibid., Convention on Territorial Asy-lum: Washington, D.C., 1954.

5 4 Summary record of the sixth meeting, paras. 5-13.


(XXX), transmitted it in turn to the General Assem-bly. The draft Declaration on the Right of Asylum{A/4792, annex) prepared by the Commission onHuman Rights is now before the Third Committee.After a procedural discussion, the Third Committeedecided at the Assembly's sixteenth session to examinethe Declaration "as early as possible" during the seven-teenth session. The General Assembly endorsed thisdecision by its resolution 1682 (XVI) of 18 December1961.

98. The replies from Goverments which were sub-mitted to the General Assembly at its sixteenth sessionshowed that five countries had proposed that the ques-tion should be studied: Belgium (A/4796/Add.4),Ceylon (A/4796/Add.8), Colombia (A/4796), Ghana(A/4796/Add.l) and Venezuela (A/4796/Add.5).

99. During the discussions in the Sixth Committee,the representative of Colombia (A/C.6/SR.727) pro-posed, inter alia, in a draft resolution (A/C.6/L.496)that the International Law Commission should includethe topic of the right of asylum on its priority list.The representative of the United Arab Republic (A/C.6/SR.723), the representative of Nicaragua (A/C.6/SR.722) and the representative of Belgium (A/C.6/SR.721) were in favour of study of the subject.However, the Colombian proposal met with some oppo-sition on the ground, not that the question of theright of asylum was unworthy of United Nationsattention, but that it was already on the agenda ofthe International Law Commission, which would studyit in due course. As a result, the Colombian representa-tive later withdrew his proposal on the understandingthat his views and those of the representatives55 whosupported them would be brought to the attention ofthe International Law Commission.

7. SOURCES OF INTERNATIONAL LAW

100. Project No. 4 on the "Fundamental Bases ofInternational Law", prepared by the American Insti-tute of International Law in 1925, is devoted almostexclusively to the various aspects of the sources ofinternational law.56

101. At the first session of the International LawCommission, Mr. Brierly considered that the codifica-tion of this question would have more disadvantagesthan advantages. Mr. Spiropoulos observed that thequestion was of no practical interest.57 The Commissiondid not place it on the list.

102. Mexico (A/4796/Add.l) requested that thisquestion should be studied. It stated its grounds forthe request in the following terms: "There is need fora re-examination of this question in the light of themany and varied decisions and resolutions of all kinds,some of doubtful legal validity, which have been adop-ted by the various international organizations. Theactions of these organizations undoubtedly have astrong impact on international affairs and contributein one form or another to the creation of internationallaw. As the creation of international law in this manneris becoming daily more important, this might be aprofitable topic of study for the International LawCommission." The Mexican representative in the SixthCommittee reiterated his Government's observations(A/C.6/SR.722).

55 Ecuador and Nicaragua (A/C.6/SR.730); Venezuela (A/C.6/SR.729).

WAJ.I.L., vol. 20 (1926), Special Supplement, p. 304.57 Summary record of the fourth meeting, paras. 67 and 68.

. 8. RECOGNITION OF ACTS OF FOREIGN STATES

103. At the first session of the International LawCommission (fifth meeting), Mr. Hudson, the Chair-man, "thought the title of the topic—'Recognition ofacts of foreign States'—unsatisfactory, in view of thefact that the word 'recognition' had in this case adifferent meaning from the one it had in the words'recognition of States'. The recognition of the acts offoreign States signified the effect given in a Stateto the acts of another State".

104. He said that "there was a considerable amountof documentation on certain aspects of the question.There were, for example, two conventions on the recog-nition and enforcement of the arbitral awards offoreign courts which had been concluded under theauspices of the League of Nations. One of the Conven-tions prepared by The Hague Conference on PrivateInternational Law dealt with the enforcement of judi-cial decisions of foreign courts in a limited field. More-over, Mr. Feller had made a valuable contribution tothe draft convention on judicial assistance preparedby the Harvard Research".58

105. Mr. Feller (Secretariat) pointed out that "thesubject was a very broad one in view of the numerousacts of States and of the complexity of the problemsthat each of those acts might raise. The Legal Depart-ment, while recently studying a question of such sec-ondary importance as the international effect of thedeclaration of the decease of a person reported missingduring the war, had had occasion to ascertain thateven on so limited a subject there already existed agreat deal of documentation and that numerous diffi-culties were occasioned by differences in national legis-lation. It did not seem, therefore, that the Commissioncould, at that juncture, do more than codify certainspecific questions that might be of some particularinterest, such as the procedure to be followed in thehearing of witnesses in a foreign country".59

106. Only Mr. Sandstrom, who pointed out thatthe question bordered on both international public andprivate law, was in favour of its codification.

107. Mr. Spiropoulos emphasized the complexityof the question, which came within the scope of inter-national public, private and even administrative law.The question was not included in the preliminary listof topics for codification.

108. Venezuela (A/4796/Add.5) requested that thequestion should be studied.

9. TERRITORIAL DOMAIN OF STATES

109. This question, which was proposed by Vene-zuela (A/4796/Add.5), figures prominently in workson international law, but there is little to be gainedby its codification.

110. Although declarations have been made andmultilateral instruments concluded on various occasionswith respect to frontiers and the acquisition of terri-torial sovereignty, the efforts made at codification havepaid very little attention to the law concerning nationalterritory.

Ill- However, the American Institute of Interna-tional Law prepared in 1925 two projects entitledrespectively "National Domain" and "Rights and Duties

33.

S&A.J.I.L., vol. 33 (1939), Supplement, pp. 15-25.5» Summary record of the Commission's fifth meeting, para.


of Nations in Territories in Dispute on the Questionof Boundaries".60

112. Rights and claims to territories have tradi-tionally been regarded as synonymous with the vitalinterests of States and the codification of certain prin-ciples might lead to a revival of territorial claims whichhave long been in abeyance. In fact, there are fewStates which have no territorial claims to make, if onlytrifling ones.

113. Frontiers, whether of ancient or of recentorigin, are rarely considered definitive; the Franco-Spanish frontier, the oldest in Europe, is hardly morethan three centuries old and despite complete demar-cation still gives rise to minor disputes from time totime.

114. In the draft Declaration on the Rights andDuties of States adopted by the International LawCommission at its first session (A/925, part I I ) , thereare two articles dealing with this question.

115. Article 9 stipulates: "Every State has theduty to refrain from resorting to war as an instrumentof national policy, and to refrain from the threat oruse of force against the territorial integrity . . . of an-other State . . .".

116. Article 11 states: "Every State has the duty torefrain from recognizing any territorial acquisition byanother State acting in violation of article 9".

117. At the first session of the International LawCommission, Mr. Alfaro and Mr. Spiropoulos saidthey did not think that the problem of the territorialdomain of States was suitable for immediate codifi-cation.

118. The Chairman (Mr. Hudson) "pointed out amatter which, though not suitable for codification,deserved study, namely, the principles governing thefrontiers of States and also certain recent practicessuch as, for example, the arrangement for neutralzones between States made between Saudi Arabia andIraq in order to protect the interests of the nomadpopulations by avoiding a fixed frontier" (summaryrecord of the fifth meeting, para. 61). The questionwas not taken up by the International Law Com-mission.

10. PACIFIC SETTLEMENT OF DISPUTES

119. The subject covers the very wide field ofprohibition of war, procedures for investigation, media-tion and conciliation, the arbitral or judicial settlementof disputes and the obligatory jurisdiction of theInternational Court of Justice.

(a) General remarks

120. The Permanent Court of Arbitration estab-lished in 1907 was followed by the system of settle-ment of disputes established by the Covenant of theLeague of Nations, the creation of the PermanentCourt of International Justice and the General Actfor the Pacific Settlement of International Disputesof 26 September 1928, leading finally, after the col-lapse of the League of Nations, to the system estab-lished by the United Nations Charter, notably Ar-ticle 2 (3) .

121. The Permanent Court of Arbitration is con-tinuing to discharge its modest function; the Perma-

«o Projects Nos. 10 and 11, A.J.I.L., vol. 20 (1926), SpecialSupplement, pp. 318-322.

nent Court of International Justice has become theInternational Court of Justice. The General Act wasrevised in 1949 (by General Assembly resolution 268A ( I I I ) ) , but by 1952 it had still been ratified byonly four States (Belgium, Denmark, Norway andSweden). From 1952 to 1961 only one ratificationwas recorded, that of Luxembourg. The functions ofconciliation and arbitration and the jurisdiction of theCourt are being made use of with some success, butnot sufficiently in the view of some. The jurisdictionof the International Court of Justice is not obligatory,and arbitration and conciliation cannot take place with-out the agreement of all parties. The weakness of thesystem is obvious.

122. At the Assembly's sixteenth session, the Israelrepresentative stated in the Sixth Committee (A/C.6/SR.726) that the time had come to pass under reviewall the established machinery for the peaceful settle-ment of international disputes. There was no assurancethat the existing procedures for settlement were reallyreliable, and their overhaul and adaptation to the con-temporary patterns and conceptions of internationalintercourse were long overdue. The Israel delegationconsidered that, if complete machinery for the peacefulsettlement of international disputes was to be estab-lished, it would be worth instructing the Sixth Com-mittee to undertake a legal study on the same linesas that being made at the political level by the FirstCommittee, particularly in the field of disarmament.

123. Similarly, the representative of Argentina (A/C.6/SR.720) stated that it was essential to attempt,by both codification and progressive development, toestablish a complete legal system of methods for secur-ing the peaceful solution of international disputes. Therepresentative of Indonesia (A/C.6/SR.726) alsospoke in favour of a study of the question by theInternational Law Commission.

124. Such statements left no doubt of the needto improve the system. However, the Interim Com-mittee set up under General Assembly resolution 111(II) of 13 November 1947 had undertaken a sys-tematic study of methods of the pacific settlementof disputes. It had even set up a sub-committee forthat purpose which had submitted a preliminary reportto the Assembly at its fourth session.61

125. In 1950, the Interim Committee created aSub-Committee on International Co-operation In thePolitical Field; this Sub-Committee submitted a reportto the General Assembly and to Member States "forinformation".62 The report, which is very detailed, ison the whole of a historical character. A stud)' pre-pared by Mr. Garcia Amador entitled "Regional ac-tion for pacific settlement within the framework ofthe Charter" appears in an appendix. The studycompares the inter-American system for pacific settle-ment with that of the Charter, and examines thepossibility of regional action for pacific settlement bythe organs of the United Nations.

126. At the first session of the International LawCommission, Mr. Alfaro proposed that the pacificsettlement of international disputes should be includedin the list of topics for codification. He envisaged thequestion as a whole, in accordance with Article 2 (3)of the Charter. Only Mr. Scelle supported the pro-

61 Official Records of the General Assembly, Fourth Session,Supplement No. 11 (A/966).

62 Ibid., Fifth Session, Supplement No. 14 (A/1388).


posal (summary record of the fifth meeting, paras.69-82).

127. Mr. Brierly, Mr. Cordova, Mr. Sandstromand Mr. Spiropoulos opposed it. The question was notincluded in the list of topics for codification. Mr.Brierly observed that the General Act of 1928 hadalways been a dead letter, and there was every reasonto fear that the same fate would befall any similardocument.

128. Mr. Cordova "suggested that consideration ofthat question should be deferred, because the time didnot seem ripe"; he thought, however, that in viewof the provisions of Article 2 (3) of the Charter, thattopic would have to be codified sooner or later.

(b) Prohibition of war

129. Afghanistan suggested (A/4796) "the pre-paration of a declaration on the prohibition of war,in line with the Declaration of St. Petersburg of 1868and the Brussels Conference of 1874, and the GenevaProtocol of 1925".

130. Czechoslovakia proposed (A/4796/Add.3)" . . . the elaboration of legal principles to govern theprohibition of aggressive wars and laying down theresponsibility for the violation of peace (definition ofaggression, prohibition of use of weapons of massdestruction, consequences of the responsibility for aviolation of peace and security)".

(c) Recourse to procedures for investigation,mediation and conciliation

131. The observations submitted by the Govern-ment of Colombia to the General Assembly at its six-teenth session, include the following passage (A/4796) : "The International Law Commission hasalready examined the topic of arbitral procedure andproduced a model set of rules which is submittedto the General Assembly and which the latter trans-mitted to Governments in November 1958 for com-ments and to be taken into account in drawing uptreaties of arbitration. The Commission, as the codify-ing organ of the United Nations has still, however,to consider the other procedures for pacific settlementprovided for both in Article 33 of the Charter of theUnited Nations and in article 21 of the Charter ofthe Organization of American States, vis., good of-fices, mediation, investigation and conciliation—judi-cial procedure being regulated by the Statute of theInternational Court of Justice annexed to the Charterof the United Nations. With regard to such proce-dures for the pacific settlement of international dis-putes, there are many Inter-American precedentshaving a bearing on codification (Treaty to Avoidor Prevent Conflicts between the American States(Gondra Pact), approved at the Fifth InternationalConference of American States and centred aroundthe investigation procedure; General Convention onInter-American Conciliation, General Treaty of Inter-American Arbitration and Protocol of ProgressiveArbitration, all approved at the International Con-ference of American States on Conciliation and Ar-bitration held at Washington in 1929; Anti-Wai-Treaty of Non-Aggression and Conciliation (SaavedraLamas Pact), concluded at Rio de Janeiro in 1933;Inter-American Treaty on Good Offices and Mediation,adopted by the Inter-American Conference for theMaintenance of Peace at Buenos Aires in 1936; Inter-American Treaty on Pacific Settlement (Pact of

Bogota), approved at the Ninth International Con-ference of American States".

132. Consequently the Colombian Government pro-posed the study of the following question: "Facificsettlement of international disputes: procedures forinvestigation, mediation and conciliation*'.

133. The Colombian representative enlarged on thisidea in the Sixth Committee (A/C.6/SR.723), devel-oping it and acknowledging that his proposal wouldin fact mean studying the general question of therights and duties of States.

134. The representative of Indonesia (A/C.6/SR.726) expressed views identical with those of theColombian Government.

135. The question presents an undeniable interest.The local conflicts which break out at various pointsin the world necessitate the creation of numerousinvestigation, mediation and conciliation commissions.

136. The United Nations has already set up morethan ten conciliation commissions. They have func-tioned, with varying degrees of success, in Greece,Palestine, Indonesia, Korea, Kashmir and Laos.

(d) More frequent recourse to arbitral and judicialsettlement

137. In its observations, the Danish Government(A/4796/Add. 1) stated that it could not but . . ."welcome any proposal tending to enlarge the scopeof arbitral and judicial procedures in internationalrelations. Far from being met with criticism, theInternational Law Commission ought to be encou-raged to pursue its efforts in this direction".

138. In the Swedish Government's view (A/4796) :" . . . one of the most important questions of the

day is that of strengthening the role of interna-tional law in the settlement of conflicts betweenStates.

"Under Article 2 of the Charter of the UnitedNations, Member States are enjoined to settle theirinternational disputes by peaceful means in such amanner that international peace and security, andjustice, are not endangered. Nowadays, however,many disputes which lend themselves to settlementby the International Court of Justice or by otherinternational judicial or arbitral bodies are not sub-mitted for such settlement, with the result thatthey continue to burden relations between the Statesconcerned. In view of this state of affairs, considera-tion should be given to the means by which Statesmight be induced to resort more frequently to ajudicial or arbitral settlement of their disputes. TheSwedish Government considers that this questionis of such importance that it should be givenpriority on the list of topics to be studied by theInternational Law Commission."139. During the Sixth Committee's debates at the

sixteenth session of the General Assembly, the Swed-ish representative (A/C.6/SR.724) expanded hisGovernment's arguments. He was supported by therepresentatives of Ireland (A/C.6/SR.727) and Paki-stan (A/C.6/SR.720).

140. With regard to the draft on arbitral pro-cedure prepared by the International Law Commis-sion between 1950 and 1958, the General Assemblyin its resolution 1262 (XIII ) of 14 November 1958confined itself to bringing "the draft articles on ar-bitral procedure contained in the report of the Inter-


national Law Commission to the attention of MemberStates for their consideration and use, in such casesand to such extent as they consider appropriate, indrawing up treaties of arbitration or compromis", andto inviting "Governments to send to the Secretary-General any comments they may wish to make on thedraft, and in particular on their experience in thedrawing up of arbitral agreements and the conductof arbitral procedure, with a view to facilitating areview of the matter by the United Nations at anappropriate time".

(e) Obligatory jurisdiction of the International Courtof Justice

141. During the Sixth Committee's debates at thefifteenth session of the General Assembly, the repre-sentatives of Afghanistan (A/C.6/SR.660), Canada(A/C.6/SR.6S6) and the United Kingdom (A/C.6/SR.652) put forward the question of the obligatorycompetence of the International Court of Justice asone of the topics to be studied by the InternationalLaw Commission. The representative of Burma (A/C.6/SR.653) stated that "adequate measures shouldbe taken.. . to educate world public opinion to acceptthe United Nations as the organ for laying down inter-national law and the International Court of Justice asthe forum for the determination of internationaldisputes".

142. Ghana (A/4796/Add. 1) asked that this ques-tion should be studied.

143. In its observations, the Danish Government(A/4796/Add.l) stated: "Codification and develop-ment of international law should be contemplated asonly one aspect of the rule of law in internationalrelations, and should—in addition to the purposes im-mediately served—contribute towards the creation ofconditions in which the compulsory jurisdiction ofthe International Court of Justice may gain extendedrecognition". The Danish representative in the SixthCommittee stated (A/C.6/SR.725) during the debatesat the sixteenth session that his delegation consideredthat the Sixth Committee would be "the appropriateforum for a thorough debate on that well-defined andvital field of international law". The Swedish repre-sentative (A/C.6/SR.724) also hoped that the SixthCommittee would take up the question "unless theInternational Law Commission inserted in it its listof priority topics".

144. The Netherlands Government (A/4796/Add.7)was of the opinion that "a further development inthis field is urgently called for but that the preparatorywork should be left to other bodies".

145. The representative of Ghana (A/C.6/SR.723)suggested that the Court should be permitted to decidewhat was within the domestic jurisdiction of a State,just as domestic courts decided whether or not theyhad jurisdiction in a particular matter. He stated thathe was in favour of the obligatory jurisdiction of theCourt. The Israel representative (A/C.6/SR.726) sup-ported that proposal.

11. LAW OF WAR AND NEUTRALITY

146. At its first session (9th meeting), in 1925,the Committee of Experts for the Progressive Codifica-tion of International Law decided to adjourn for con-sideration at a later date the various problems con-

nected with war and neutrality.63 Such considerationnever took place, despite the Committee's concern toleave "untouched the question to what extent it oughtto deal with the laws of war".64

147. Mr. Fromageot criticized the phrase "law ofwar", which appeared to establish "a special code oflaw for war, whereas there was only one internationalcode of law, which was the law of nations. When waroccurred, it was subject to special rules, but the lawof nations continued to be fully binding on all non-combatants".65

148. In its report66 the Committee of Three Juristsappointed by the Council of the League of Nationson 14 December 1928 to prepare The Hague Codifica-tion Conference included in its proposal for the publica-tion in the form of a code of conventions open to Statesin general, item 13 entitled "Conventions on the lawof war: (a) Land, (b) Sea, (c) Air".

149. At its first session, the International Law Com-mission "considered whether the laws of war shouldbe selected as a topic for codification. It was suggestedthat, war having been outlawed, the regulation of itsconduct had ceased to be relevant. On the other hand,the opinion was expressed that, although the term'laws of war' ought to be discarded, a study of therules of governing the use of armed force—legitimateor illegitimate—might be useful. The punishment ofwar crimes, in accordance with the principles of theCharter and judgement of the Niirnberg Tribunal,would necessitate a clear definition of those crimesand, consequently, the establishment of rules whichwould provide for the case where armed force wasused in a criminal manner. The majority of the Com-mission declared itself opposed to the study of theproblem at the present stage. It was considered thatif the Commission, at the very beginning of its work,were to undertake this study, public opinion mightinterpret its action as showing lack of confidence inthe efficiency of the means at the disposal of the UnitedNations for maintaining peace".67

150. During the debates on this question in theCommission (sixth meeting), Mr. Scelle expressed theview that the topic should be examined, but: underanother heading. Since the Charter had endeavouredto organize an international police system for the pre-vention of war, the regulation of the employment ofan international police force should be one of thechief preoccupations of the Commission; specific rules,he thought, should be established for that most danger-ous executive function.

151. Mr. Sandstrom wondered whether the ques-tion presented by Mr. Scelle did not fall within theprovince of the progressive development of internationallaw rather than that of its codification. Mr. Spiropoulosagreed with Mr. Sandstrom that war was a possibilitybut that, since the greater part of the law of war hadalready been codified by international conventions, inparticular by The Hague Convention and by theLondon Declaration, it would be enough to applythose conventions.

«3 C.P.D.I. [first session] PV.9and C.P.D.I.1S (1).I

<» Ibid.M League of Nations, A.12.1929.V. The Committee consisted

of Mr. Diena, Mr. Guerrero and Mr. Schucking.67 Report of the International Law Commission covering its

first session (A/925), para. 18.


152. At the fifteenth session of the General As-sembly, the representative of Ceylon (A/C.6/SR.658)proposed that the law of neutrality should be codified.

153. In its observations (A/4796/Add.6), Austriaproposed the codification of the laws of war and neu-trality.

154. The Austrian Government observed that the"provisions of the Charter may have had an effectother than abrogation on traditional norms of inter-national law. Some norms, for instance, may have tobe modified in order to correspond to the regulationsof the Charter. This is especially true for the laws ofwar and neutrality which reflect the State practiceof the nineteenth century and do not, therefore, pro-vide for military actions of a world organization ofStates".

155. On the other hand, the Netherlands Govern-ment (A/4796/Add.7) was of the opinion "that thelaws of war—though their adaptation to modern meth-ods of warfare is an urgent necessity—are not sus-ceptible of codification, since this topic is closelyconnected with problems of disarmament which areunder discussion in other bodies of the United Nations".

156. It is to be noted that in 1949 the InternationalCommittee of the Red Cross convened a conferencewhich adopted four conventions—the so-called GenevaConventions of 12 August 1949—on the ameliorationof the condition of the wounded and sick in armedforces in the field, on the amelioration of the condi-tion of the wounded, sick and shipwrecked membersof armed forces at sea, on the treatment of prisonersof war, and on the protection of civilian persons intime of war.

12. FUNDAMENTAL RIGHTS AND DUTIES OF STATES

157. At its first session, in 1949, the InternationalLaw Commission, under the terms of General As-sembly resolution 178 (II) of 21 November 1947,adopted a draft Declaration on Rights and Duties ofStates.68 That draft, which consisted of fourteen ar-ticles, was based on a draft submitted by Panama.The International Law Commission also used a Secre-tariat memorandum entitled "Preparatory study con-cerning a Draft Declaration on the Rights and Dutiesof States".69

158. In its resolution 375 (IV) of 6 December 1949,the General Assembly noted the draft Declaration onRights and Duties of States and transmitted it toMember States, requesting their comments. Becauseof the few comments it received, the Assembly decided,in resolution 596 (VI) of 1 December 1951, to post-pone consideration of the draft Declaration until asufficient number of States had transmitted their com-ments and suggestions and in any case to undertakeconsideration as soon as a majority of Member Stateshad transmitted such replies. By the end of 1952,only eighteen States had replied. Since no commentshave been received since that time, there have beenno further developments in regard to the question.

159. Venezuela (A/4796/Add.5), as one of theGovernments which, at the sixteenth session, had sub-mitted observations in accordance with resolution 1505(XV), suggested that priority might be given in the

68 Report of the International Laiv Commission covering itsfirst session, Official Records of the General Assembly, FourthSession, Supplement No. 10 (A/925), pp. 8-10.

69A/CN.4/2 (United Nations publication, Sales No.:49.V.4).

future work of the International Law Commission tothe fundamental rights and duties of States.

160. At the sixteenth session of the General As-sembly, the Nicaraguan representative (A/C.6/SR.722)in the Sixth Committee included the question amongthose topics for which codification was urgently needed.Similarly, the Mexican representative (A/C.6/SR.722)referred to the necessity of drawing up a set of rulesconcerning the rights and duties of States. He statedthat developments in the past fifteen years might makeit necessary to adapt the Declaration which the Inter-national Law Commission had drafted in 1949 to thenew conditions now prevailing. In his view, the draftwas far from perfect and the Mexican delegation hadserious reservations respecting it; but it could beamended and improved. The 1949 draft and other docu-ments, such as chapter III of the Charter of the Organi-zation of American States, might serve as a guide. Al-though it did not make a formal proposal, the Mexicandelegation believed that it would be appropriate to drawthe attention of the International Law Commission tothat problem.

161. The Brazilian representative (A/C.6/SR.721),on the other hand, wished to avoid as far as possible thepreparation of academic documents devoid of practicalsignificance, such as the Declaration on the Rights andDuties of States.

Part. II. Possibility of codifying "new" topics

1. LAW OF SPACE

162. At the fifteenth session of the General Assembly,during the discussion in the Sixth Committee on thereport of the International Law Commission, the repre-sentatives of Afghanistan (A/C.6/SR.660), Mexico(A/C.6/SR.665) and the Philippines (A/C.6/SR.663)proposed that the Commission should undertake thestudy of the legal aspects of the use of outer space.

163. Among the replies from Governments trans-mitted in accordance with resolution 1505 (XV),Afghanistan (A/4796) and Mexico (A/4796/Add.l)proposed that the legal aspects of outer space shouldbe studied. Mexico expressed the following opinion:"Apart from the military and political aspects of thisproblem, which are being studied by other UnitedNations organs, it would appear that an attempt mightbe made at the same time to formulate certain minimumbasic rules—without of course attempting, at this stage,to produce a complete code—which might even helpin future studies of the military and political aspectsof the problem".

164. Burma (A/4796) suggested the study of sove-reignty in air space and Ghana (A/4796/Add.l) thatof the law of space.

165. During the discussion in the Sixth Committeeat the sixteenth session of the General Assembly, therepresentative of Ghana (A/C.6/SR.723) stated thatan international convention codifying the rules of outerspace was urgently necessary, but that, until the initialsurvey in that field was undertaken, many importantquestions would remain unanswered. The representa-tives of Nepal (A/C.6/SR.728) and Mexico (A/C.6/SR.722) also advocated the codification of the law ofouter space. The representative of Nicaragua (A/C.6/SR.722) said that he would prefer a study of the "lawof aviation" which would cover atmospheric and outerspace and also installations and facilities.


166. On the other hand, the representative of Brazil(A/C.6/SR.721) was of the opinion that the Interna-tional Law Commission was unlikely to succeed in thelegal study of outer space, because it would not achieveeffective solutions. The representatives of the UnitedKingdom (A/C.6/SR.717) and the United States (A/C.6/SR.722) also thought that the question was tootechnical for the International Law Commission.

167. This topic has already been the subject of anumber of studies. At its session in Neuchatel in 1959,the Institute of International Law established a commis-sion to study the law of celestial space. The Interna-tional Law Association dealt with the topic at its fifty-ninth Conference held at Hamburg in 1960.

168. Bv its resolution 1348 CXITI) of 13 December1958. the United Nations General Assembly establishedan ad hoc Committee on the Peaceful Uses of OuterSnnce, and finallv, by its resolution 1472 (XIV) of12 December 1959, a Committee on the Peaceful Usesof Outer Space.

169. By its resolution 1721 (XVI) of 2 January1962, the General Assembly invited the Committee onthe Peaceful Uses of Outer Space to Study and reporton the legal problems which might arise from the ex-ploration and use of outer space. The Committee metat Headquarters on 19 March 1962. It was decided toestablish a legal sub-committee.

2. LAW OF INTERNATIONAL ORGANIZATIONS

170. In the replies from Governments transmittedunder resolution 1505 (XV), the following four sub-jects were proposed for codification:(a) Status of international organizations and the rela-

tions between States and international organiza-tions ;

(b) The validity of norms of international law withregard to the entrance of new members in theinternational community;

(c) The responsibility of international organizations;(d) The law of treaties in respect of international

organizations.171. The first topic was proposed by Austria (A/

4796/Add.6) and the Netherlands (A/4796/Add.7),and the three others by Austria.

172. Among its comments, the Austrian Governmentstated that "International organizations partake, withinthe express or implied powers conferred upon themby their statute, in international intercourse. Someaspects of the existence of international organizationsas international legal phenomena are covered by inter-national conventions which have been concluded for orby individual organizations. To other aspects of theexternal relations of international organizations, forwhich no such conventions exist, the traditional normsof international law can be applied only to a limiteddegree".

173. The question has already been touched uponby the General Assembly. By its resolution 1289 (XII)of 5 December 1958, it invited the International LawCommission to consider the question of relations be-tween States and international organizations "at theappropriate time, after study of diplomatic intercourseand immunities, consular intercourse and immunitiesand ad hoc diplomacy has been completed by the UnitedNations and in the light of the results of that study andof the discussion in the General Assembly".

174. At its eleventh session (1959), the InternationalLaw Commission took note of the resolution and decidedto consider the topic in due course.

175. At the sixteenth session of the General As-sembly, the representative of Indonesia in the SixthCommittee (A/C.6/SR.726) suggested the study ofthe law of international organizations and the repre-sentative of the United Arab Republic (A/C.6/SR.723)suggested the consideration of the relations betweenStates and international organizations.

176. It would seem that the law of internationalorganizations is appropriate for codification and thatcodification would meet a growing need. The numberof regional or universal inter-governmental organiza-tions is continually increasing, and is now about 150.Their relations among themselves and with Govern-ments raise complex legal problems which are notalways settled satisfactorily. Almost a century haselapsed since the establishment of the Universal PostalUnion, the ancestor of international organizations. Anestablished practice has come into being and there arenumerous texts. Volumes 10 and 11 of the UnitedNations Legislative Series "Legislative texts and treatyprovisions concerning the legal status, privileges andimmunities of international organizations" each containabout 400 pages (ST/LEG/SER.B/10 and 11).

3. HUMAN RIGHTS AND DEFENCE OF DEMOCRACY

(a) Preparation of a draft Convention for the defenceof democracy, to be co-ordinated with the workcurrently being done along those lines by theOrganisation of American States and the Inter-American Commission for the Protection of HumanRights

\77. The preparation of a draft convention wasproposed by Venezuela (A/4796/Add.5).

178. The Government of Colombia in its comments(A/4796) stated: "Another topic studied by the Inter-American Council of Jurists is the effective exercise ofrepresentative democracy, which has been placed onthe provisional agenda of the Eleventh Inter-AmericanConference. Since, however, this topic is relativelypolitical in nature and within the inter-American re-gional organization comes directly under article 5 (d)of the Charter of Bogota, it might for the moment beregarded as exclusively inter-American. The samewould seem to apply to the topic of the juridicalrelationship between respect for human rights and theexercise of representative democracy, which is also asubject of study by the Inter-American Council ofJurists and has been dealt with in a report to theEleventh Inter-American Conference".

(b) International protection of human rights throughthe creation of a special international court

179. The subject was proposed by Colombia (A/4796).

180. The representative of Argentina in the SixthCommittee stated at the sixteenth session of the GeneralAssembly that his Government considered that a vigor-ous effort should be made to ensure internationalprotection of human rights by establishing procedureswhich, while respecting State sovereignty, would grantthe individual the safeguards necessary to the full en-joyment of his rights.

181. The representative of Colombia submitted adraft resolution (A/C.6/L.493), the operative part of


which provided for the inclusion in the agenda of theseventeenth session of the Assembly of the questionof the establishment of an international tribunal forthe protection of human rights. That draft was sub-sequently replaced by an amendment (A/C.6/L.496).In the course of the debate the representative of Colom-bia withdrew his proposal, accepting the fact that mostrepresentatives, while recognizing the importance ofthe question, felt that its inclusion in the agenda ofthe next session of the General Assembly was inap-propriate, since it had already for some years been onthe agenda of the Commission on Human Rights(A/5036, para. 37).

182. The question of the establishment of an inter-national court of human rights was, indeed, raisedat the second (1947), third (1948) and fifth sessions(1949) of the Commission on Human Rights.

183.' An Australian draft (E/CN.4/AC.1/27) ofthirty-two articles for a statute of an international courtof human rights on those lines was submitted in 1948.

184. At its 132nd meeting in 1949, the Commissionon Human Rights adopted a resolution deciding torequest the Secretary-General to transmit to the Gov-ernments of Member States, for their comments, theproposal submitted by Australia (E/CN.4/AC.1/27).Some comments were received and were reproduced indocument E/CN.4/366.

185. The question was included on the agenda ofthe sixth, seventh, eighth, ninth, tenth and eleventhsessions of the Commission on Human Rights (1950-1955). At its eleventh session in 1955 (E/2731 andCorr.l, page 4), the Commission decided that thatquestion (agenda item 18) should no longer havepriority and it was not subsequently discussed.

186. The Secretariat of the Commission on HumanRights has been informed of the Colombian proposal.It would therefore be preferable for the InternationalLaw Commission to leave the Commission on HumanRights to deal with that question. In any case therepresentative of Colombia wished the question to bereferred to the Assembly and not to the InternationalLaw Commission.

(c) Jurisdiction of international courts and organisa-tions with special reference to the plea of exclusionby the domestic jurisdiction in relation to questionsaffecting human rights

187. This question was proposed by the Governmentof Ceylon (A/4796/Add.8).

4. INDEPENDENCE AND SOVEREIGNTY OF STATES

(a) The acquisition of statehood188. This question was proposed by the Government

of Ghana (A/4796/Add.l). At the sixteenth session ofthe General Assembly, the representative of Ghana(A/C.6/SR.723) stated in the Sixth Committee thatthe matter was "obviously important", as "the expan-sion of international society by the emergence of newStates was fast being relegated to history; in fact,after General Assembly resolution 1514 (XV) on thegranting of independence to colonial countries andpeoples had been fully implemented, new States wouldcome into being only by the disintegration, disruptionor total extinction of the existing States and the forma-tion of new groupings through fission or fusion. Thenthe birth of a new State and its recognition would belinked inextricably to the problem of State succession".

(b) The right of a State, in particular a new State,to determine, to implement and to perfect in itspolitical form, socially and economically in con-formity with the professed ideology and to takeall necessary steps to accomplish this, e.g., decolo-nisation, normalization, nationalization, and alsosteps to control all its natural resources and ensurethat those resources are utilised for the interestsof the State and the people

and(c) The right of every State to take steps which, in

its opinion, are necessary to safeguard its nationalunity, its territorial integrity and for its self-defence

189. These two topics were proposed by Indonesia(A/4796/ Add.2).

(d) Elaboration of legal principles ensuring the grantingof independence to colonial countries and peoples

190. This topic was proposed by Czechoslovakia(A/4796/Add.3). It relates particularly to the rightof nations to self-determination, ensuring to nationsfull sovereignty over their natural resources, the com-plex of problems of recognition, State succession andothers.

191. The question of sovereignty over natural re-sources was the subject of a study prepared by theSecretariat at the request of the Commission on Per-manent Sovereignty over Natural Resources establishedunder resolution 1314 (XIII) of 12 December 1958.

192. The Commission held three sessions between1959 and 1961. In a resolution adopted in 1961, itrequested the International Law Commission, in con-nexion with the question of permanent sovereigntyover natural resources, to speed up its work on thetopic of the responsibility of States.70

193. The Second Committee, to which the reportof the Commission on Permanent Sovereignty overNatural Resources was referred, did not have time toconsider the latter's resolution.

194. By resolution 1720 (XVI) of 19 December1961, the General Assembly deferred the question toits seventeenth session.

(e) Acts of one State in the territory of another State195. The topic was proposed by the Netherlands

(A/4796/Add.7). It is related to that of the jurisdictionand responsibility of States.

(f) The principle of non-intervention196. Study of this topic was proposed by Mexico

(A/4796/Add.l). At the inter-American level, a Con-vention containing five articles, signed at Havana in1928, sets out the obligations and rights of States incases of civil war.71 In the view of the Government ofMexico, consideration should be given to the desirabilityof extending the provisions of that Convention to allcountries or perhaps of formulating new provisions thatwould be in keeping with present conditions and beuniversally applicable.

197. At the sixteenth session of the General As-sembly, the representative of the Union of Soviet So-cialist Republics in the Sixth Committee suggested the

™E/3511; A/AC.97/13, annex.71 See text in International Conferences of American States,

1889-1928, New York, Oxford University Press, 1931, pp. 435-436.


codification of the question of the sovereignty of Statesand the principle of non-interference (A/C.6/SR.717).

198. The representative of Mexico (A/C.6/SR.722)pointed out that, in view of the current importance ofthe question of non-intervention, its study should beundertaken as soon as possible.

(g) The principle of self-determination of peoples

199. Study of this topic was proposed by Austria(A/4796/ Ad'd.6).

200. The principle appears in the draft InternationalCovenants on Human Rights,72 in article 1 of the draftCovenant on Economic, Social and Cultural Rights andin article 1 of the draft Covenant on Civil and PoliticalRights. In addition, on 14 December 1960 the GeneralAssembly adopted resolution 1514 (XV) setting fortha Declaration on the granting of independence to colonialcountries and peoples. At its sixteenth session, theGeneral Assembly, by resolution 1654 (XVI) of 27November 1961, established a Special Committee toexamine the application of the Declaration set forthin resolution 1514 (XV) and to report to it at itsseventeenth session. The Special Committee began itswork on 20 February 1962 at Headquarters.

5. ENFORCEMENT OF INTERNATIONAL LAW

201. The topic was proposed by the Governmentof Ghana (A/4796/Add.l).

202. In a statement in the Sixth Committee duringthe sixteenth session of the General Assembly, therepresentative of Ghana (A/C.6/SR.723) said thatthis topic was closely related to the acceptance by allStates of the compulsory jurisdiction of the InternationalCourt of Justice. If it were possible to enforce interna-tional law against all nations in all cases, many of thedifficulties at present confronting the world would beobviated. His delegation hoped that the topic wouldreceive early attention.

203. The representative of Argentina (A/C.6/SR.720) stated that his Government considered it es-sential to attempt, by both codification and progressivedevelopment, to establish a complete legal system ofmethods for securing- the peaceful solution of interna-tional disputes and to create additional means of ensur-ing peace through the rule of law.

6. UTILIZATION OF INTERNATIONAL RIVERS

204. The Netherlands (A/4796/Add.7) requestedthat this matter should be studied by the InternationalLaw Commission.

205. At the fourteenth session of the General Assem-bly, the representative of Bolivia in the Sixth Com-mittee pointed out that the utilization of internationalrivers was governed by law which was purely customary,ill-defined and lacking in uniformity.73 He thereforesuggested that the International Law Commission shouldinclude in its agenda the question of the utilization andexploitation of international waterways.

206. Several representatives emphasized the com-plexity of the problem, which would necessarily requiresuitable technical knowledge.

207. Other representatives were of the opinion thatan attempt to codify the matter would be premature

72 Official Records of the General Assembly, Tenth Session,Annexes, agenda item 28 (part I ) , document A/3077.

73 See Official Records of the General Assembly, FourteenthSession, Annexes, agenda item 55.

and could do more harm than good. It would be betterto leave it to the International Law Commission todecide whether the utilization of international riverswas an appropriate subject for codification.

208. Accordingly, on the recommendation of theSixth Committee, the General Assembly adopted on21 November 1959 resolution 1401 (XIV) which re-quested :

"the Secretary-General to prepare and circulate toMember States a report containing:

"(a) Information provided by Member Statesregarding their laws and legislation in force in thematter and, when necessary, a summary of suchinformation;

"(b) A summary of existing bilateral and multi-lateral treaties;

"(c) A summary of decisions of international tribu-nals, including arbitral awards;

"(d) A survey of studies made or being made bynon-governmental organizations concerned with in-ternational law".

209. The Secretariat has undertaken this work, anda report on the subject and a volume of the UnitedNations Legislative Series devoted to treaties andnational laws concerning the exploitation and utilizationof international rivers are to appear early in 1963.

210. At the sixteenth session of the General As-sembly, the representative of Iran in the Sixth Com-mittee suggested (A/C.6/SR.725) that the Interna-tional Law Commission "could well use the researchaccomplished by the Secretariat as a starting point foran international convention. Such a convention wouldserve to regulate the use of international rivers byriparian States on the basis of well-defined rules andthus put an end to numerous disputes on the subject".

7. ECONOMIC AND TRADE RELATIONS

(a) The rules governing multilateral trade

211. In proposing the study of this topic, theYugoslav Government (A/4796) stated that "the rulesgoverning' international trade, and more especially trade

among States with different economic and social sys-tems, raise a number of novel problems to which sat-isfactory solutions should now be sought in the interestof the normal development of both economic and politicalrelations in a particularly sensitive area of world affairs.What we have in mind here are not, of course, thetechnical aspects of the legal regulation of internationaltrade, but the new institutions and rules that havearisen since the Second World War and which makethe general pattern of international trade very muchdifferent from what it had previously been."

212. At the sixteenth session of the General As-sembly, the Yugoslav representative developed theseideas in a statement in the Sixth Committee {A/C.6/SR.714).

(b) The rules pertaining to the various forms of eco-nomic assistance to under-developed countries

213. This topic was also proposed by Yugoslavia(A/4796). In its observations the Yugoslav Govern-ment stated that: "The question of promoting the eco-nomic development of the hitherto under-developedcountries is generally recognized to be one of the fore-most international problems of our time. The variousforms of assistance that are now given to the develop-


ment of these countries—economic and technical, multi-lateral and bilateral—have considerable legal implica-tions and call for the determination of the principlesof international law that should govern their applicationif they are to achieve their basic purposes".

214. In the Sixth Committee, the Yugoslav repre-sentative (A/C.6/SR.714) argued that "in codifyingthe legal rules concerning economic and technical assist-ance, the [International Law] Commission should notenter into technical questions, but should seek to define,in the light of general international law, the respectivepositions of the States and organizations concerned.His delegation was convinced that existing legal stand-

ards oould provide a basis for establishing some ruleswhich had been reaffirmed many times in the practiceof the post-war period. For example, the requirementthat no political or other conditions should be attachedto the aid extended to under-developed countries wasnow a generally recognized legal rule".

215. On the other hand, the representative of theUnited Kingdom, referring to the two topics suggestedby Yugoslavia, stated in the Sixth Committee (A/C.6/SR.717) that both tasks seemed more appropriate foran economic body than for the International Law Com-mission. He further stated that some aspects of interna-tional trade might be covered by other subjects, suchas the jurisdictional immunities of States.


DOCUMENT A/CN.4/149 AND ADD.l

The succession of States in relation to membership in the United Nations:memorandum prepared by the Secretariat

I. INTRODUCTION

1. At a meeting of the Sub-Committee on the Suc-cession of States and Governments held during thefourteenth session of the International Law Commis-sion, the Secretary of the Commission stated that theSecretariat would undertake the preparation of a memo-randum on the problem of succession of States inrelation to membership of the United Nations. TheCommission took note of this statement in its report.1

2. This memorandum is accordingly submitted forthe use of the Sub-Committee and of the Commission.In this regard there are three significant cases. Thefirst is that of the admission of Pakistan in 1947;that was the first occasion on which a new Statewhose territory had formerly formed part of a Memberof the United Nations was admitted to the Organization.Though the issue of succession was raised, Pakistanwent through the usual procedure for admission, andthat procedure has been followed by all other newStates which formerly were parts of Members andwhich have been admitted to the United Nations. Thesecond case is the formation in 1958 of the UnitedArab Republic by union between Egypt and Syria.The third case is the departure of Syria from theUnited Arab Republic in 1961.

II. T H E ADMISSION OF PAKISTAN TO MEMBERSHIP,19472

3. In August 1947, an original Member of theUnited Nations divided into two States, India andPakistan. Before the arrival of the date set for thischange (15 August 1947), the Secretariat, for thepurposes of its administrative functions, was obligedto consider the legal consequences in regard to mem-bership and representation in the United Nations. Alegal opinion of 8 August 1947 by the Assistant Sec-retary-General for Legal Affairs was approved andmade public by the Secretary-General.3 This legalopinion was as follows:

"The Indian Independence Act provides that onthe fifteenth day of August, 1947, two IndependentDominions shall be set up in India to be knownrespectively as India and Pakistan. Under this Act,the new Dominion of India will consist of all the

1 General Assembly, Official Records, Seventeenth Session,Supplement No. 9 (A/5209), para. 72.

2 The facts of this case are also summarized in the Repertoryof Practice of United Nations Organs, vol. I, Article 4, paras.32-37.

3 United Nations Press Release PM/473, 12 August 1947(English only).

[Original text: English][3 December 1962]

territories of British India except certain designatedterritories which will constitute Pakistan.

"What is the effect of this development on mem-bership and representation of India in the UnitedNations ?

"From the legal standpoint, the Indian Inde-pendence Act may be analysed as effecting twoseparate and distinct changes;

" 1 . From the viewpoint of international law, thesituation is one in which a part of an existingState breaks off and becomes a new State. On thisanalysis, there is no change in the international statusof India; it continues as a State with all the treatyrights and obligations, and consequently, with allthe rights and obligations of membership in tbe UnitedNations. The territory which breaks off, Pakistan,will be a new State; it will not have the treaty rightsand obligations of the old State, and it will not, ofcourse, have membership in the United Nations.

"In international law, the situation is analogousto the separation of the Irish Free State fromGreat Britain, and of Belgium from the Netherlands.In these cases, the portion which separated was con-sidered a new State; the remaining portion continuedas an existing State with all the rights and dutieswhich it had before.

"2. Apart from the question of separation, theIndependence Act has effected a basic constitutionalchange in India. The existing State of India hasbecome a Dominion, and consequently, has a newstatus in the British Commonwealth of Nations,independence in external affairs, and a new form ofgovernment. It is clear, however, that this basicconstitutional change does not affect the internationalpersonality of India, or its status in the UnitedNations. The only question it raises is whethernew credentials should be requested for the Indianrepresentatives in the organs of the United Nations.Although there is no precedent for this situation inthe United Nations, there is some basis in diplomaticpractice for requesting new credentials in cases ofStates which have undergone a change of sovereignty,as from a monarchy to a republic. It would, there-fore, seem appropriate for the Secretary-Generalto suggest to the Government of India that in viewof the change in sovereignty, it would be desirableto have new credentials issued to the Indian repre-sentatives by the Head of the Government or theForeign Minister of the new Dominion of India.

"In conclusion, the effect of the IndependenceAct may be summarized as follows:

101


"1 . The new Dominion of India continues as anoriginal Member State of the Unitd Nations withall rights and obligations of membership.

"2. Pakistan will be a new non-member State.In order for it to become a Member of the UnitedNations, it would have to apply for admission pur-suant to Article 4 of the Charter, and its applicationwould be handled under the pertinent rules of pro-cedure of the General Assembly and the SecurityCouncil.

"3. The representatives of India on the Economicand Social Council and the representative of Indiaparticipating in the discussion of the Indonesian casein the Security Council should be requested to submitnew credentials after August 15 issued by the Headof Government, or the Foreign Minister of the newDominion of India."

4. In the meanwhile, the representatives of Indiaand Pakistan had been considering the problem of thedevolution of international rights and obligations, andarrived at an agreement which, though reached on 6August, was not promulgated until 14 August, andwas communicated to the United Nations only on 27August 1947, in a letter from the representative ofIndia.4 The agreement was promulgated by the Gov-ernor-General in the Schedule to the Indian Inde-pendence (International Arrangements) Order, 1947,which provided that:

"The agreement set out in the Schedule to thisOrder shall, as from the appointed day, have theeffect of an agreement duly made between the Do-minion of India and the Dominion of Pakistan."

5. The agreement read as follows:"Agreement as to the devolution of international

rights and obligations upon the Dominions of Indiaand Pakistan" 1 . The international rights and obligations to

which India is entitled and subject immediately be-fore 15 August 1947, will devolve in accordancewith the provisions of this agreement.

"2. (a) Membership of all international organi-zations together with the rights and obligations at-taching to such membership, will devolve solely uponthe Dominion of India.

"For the purposes of this paragraph any rightsor obligations arising under the Final Act of theUnited Nations Monetary and Financial Conferencewill be deemed to be rights or obligations attachedto membership of the International Monetary Fundand to membership of the International Bank forReconstruction and Development.

"(b) The Dominion of Pakistan will take suchsteps as may be necessary to apply for membershipof such international organization as it chooses tojoin.

"3. (a) Rights and obligations under interna-tional agreements having an exclusive territorial ap-plication to an area comprised in the Dominion ofIndia will devolve upon that Dominion.

"(b) Rights and obligations under internationalagreements having an exclusive territorial applicationto an area comprised in the Dominion of Pakistanwill devolve upon that Dominion.

4 A/C.6/161; General Assembly, Official Records, SecondSession, Sixth Committee, pp. 308-310, annex 6c.

"4. Subject to articles 2 and 3 of this agreement,rights and obligations under all international agree-ments to which India is a party immediately beforethe appointed day will devolve both upon the Do-minion of India and upon the Dominion of Pakistan,and will, if necessary, be apportioned between thetwo Dominions."6. On IS August 1947, the date on which Pakistan

became independent, the Minister for Foreign Affairsof Pakistan sent the following cable to the Secretary-General :5

"On behalf of the Government of Pakistan, I havethe honour to say that in my Government's viewboth the Dominions of India and Pakistan shouldbecome Members of the United Nations, automati-cally, with effect from 15 August. If, however, thisview is not accepted, I hereby apply for the admissionof Pakistan as a Member of the United Nations.Pakistan is prepared to accept the obligations con-tained in the Charter of the United Nations."

7. The Security Council took up the application ofPakistan on 18 August 1947.6 The Council decided toconsider the matter directly, without previous referenceto its Committee on the Admission of New Members.The claim of Pakistan to succession to the membershipof India was not specifically considered, but after abrief discussion in which the representative of Indiasupported "the application of Pakistan for membership",the Council voted unanimously in favour on "the ques-tion of admitting Pakistan to membership in the UnitedNations". The representative of Poland then remarkedthat the vote could not be used as a precedent to omitconsideration by the Committee on the Admission ofNew Members. He continued:

"The state of affairs is not clear to us. We donot fully know whether Pakistan was born out ofIndia or whether two new States have come intobeing. Of course, we accept India as a Memberand we welcome Pakistan, but this precedent cannotbe cited in the future as justification in the eventanother State should split up into several States andall of them should ask for automatic admission,thereby depriving the Council of the privilege of mak-ing recommendations with regard to new Members."

8. Thereafter the President of the Council and theSecretariat prepared a draft resolution which the Coun-cil discussed and adopted on 21 August 1947.7 In itsoperative part the resolution provided that the Councilrecommended

"to the General Assembly that it admit to member-ship in the United Nations the following applicants:

"Yemen and Pakistan."

9. This resolution was transmitted to the GeneralAssembly,8 which referred the item to the First Com-mittee. At the opening of the debate in that Committee9

on 24 September 1947, the representative of Argentinadeclared that in his view Pakistan was already a Mem-ber of the United Nations since with India it inherited

5 S/498; Security Council, Official Records, Second Year,No. 78, pp. 2027-2028.

6 186th meeting; Security Council, Official Records, SecondYear, No. 78, pp. 2027-2031, 2052-2055.

7 190th meeting; Security Council, Official Records, SecondYear, No. 81, pp. 2136-2141.

8 A/350; General Assembly, Official Records, Second Session,First Committee, p. 529, annex 1.

9 59th meeting; ibid., pp. 3-8.

Succession of States and Governments 103

the original membership held by the previous IndianGovernment. He would have had no objection if theUnited Nations had decided that both India and Paki-stan were new States, and should submit applicationsfor membership; but not to treat both Dominions onthe same footing constituted an unfounded discrimina-tion, since both should have been regarded as originalMembers, or, alternatively, both should have been con-sidered new Members. Accordingly he submitted adraft resolution10 whereby the General Assembly woulddeclare Pakistan a Member of the United Nations asfrom 15 August 1947, and would also declare thatthe positions occupied by the representatives of India incommissions, committees and sub-committees up to15 August 1947 should be understood "as being oc-cupied as from that date by the representatives of theDominion of India".

10. The representative of Australia said that he didnot believe the procedure which had been followed wasincorrect; since India retained membership in the Eco-nomic and Social Council, it seemed to have beentacitly agreed that it had assumed the internationalrights and obligations of the former State of India.He submitted a draft resolution11 by which the As-sembly would decide to admit Pakistan and Yemen asMembers.

11. In the ensuing discussion some representativessupported the views of Argentina and others those ofAustralia, but it was generally agreed that it was un-desirable to delay the participation of Pakistan in theOrganization. The Committee unanimously adopted thedraft resolution submitted by Australia, but decided torefer the legal problem raised by the representativeof Argentina to the Sixth Committee for considerationand report; the opinion of the Sixth Committee was,however, to be for use in future cases only and wouldhave no bearing on the recommendation of the FirstCommittee concerning the admission of Pakistan.12

12. On 30 September 1947 the General Assemblyconsidered and adopted13 the draft resolution recom-mended by the First Committee deciding to admit Paki-stan and Yemen as Members; it became resolution 108(II) . The resolution provided:

"The General Assembly,"Taking note of the applications for membership

submitted to the United Nations by Pakistan andYemen, and of the recommendation of the SecurityCouncil that the Assembly admit Pakistan andYemen to membership,

"Determines that Pakistan and Yemen are, in itsjudgement, peace-loving States, within the meaningof Article 4 of the Charter, and are able and willingto carry out their obligations under the Charter,and consequently,

"Decides to admit Pakistan and Yemen as Mem-bers of the United Nations."

13. In depositing his country's instrument of ad-herence to the Charter at the same meeting, the repre-sentative of Pakistan declared:14

"In one sense, the admission of Pakistan to theUnited Nations is not the admission of a new Mem-ber. Until 15 August of this year, Pakistan andIndia constituted one State. On 15 August theyagreed to constitute themselves into two separatesovereign States. One chose to continue to call itselfby the old name of India, which had applied to thewhole of the country, and the other elected to callitself by the name of Pakistan.

"Inasmuch as Pakistan had been a part of India,it was, in effect under the latter name, a signatoryto the Treaty of Versailles and an original Memberof the League of Nations . . . In the same sense,Pakistan, as a part of India, participated in theSan Francisco Conference in 1945 and became asignatory to the United Nations Charter. There-fore Pakistan is not a new Member of the UnitedNations, but a co-successor to a Member State whichwas one of the founders of the Organization."

14. The Sixth Committee on 6 and 7 October 1947"considered the general question put to it by the FirstCommittee, which was worded as follows:

"What are the legal rules to which, in the future,a State or States entering into international lifethrough the division of a Member State of the UnitedNations should be subject?"

15. The discussion opened with a statement by theRapporteur of the Committee, Mr. Georges Kaecken-beeck (Belgium),16 who suggested three paragraphssummarizing the governing principles. The Committeeadopted these principles, which were transmitted in aletter of 8 October 1947 from the Chairman of the SixthCommittee to the Chairman of the First Committee.17

16. The letter read in part as follows:" . . . After having considered the problem, the

Sixth Committee agreed on the following principles:"1. That, as a general rule, it is in conformity

with legal principles to presume that a State whichis a Member of the Organization of the UnitedNations does not cease to be a Member simply be-cause its Constitution or its frontier have been sub-jected to changes, and that the extinction of the Stateas a legal personality recognized in the internationalorder must be shown before its rights and obligationscan be considered thereby to have ceased to exist.

"2. That when a new State is created, whatevermay be the territory and the populations which itcomprises and whether or not they formed part ofa State Member of the United Nations, it cannotunder the system of the Charter claim the status ofa Member of the United Nations unless it has beenformally admitted as such in conformity with theprovisions of the Charter.

"3. Beyond that, each case must be judged ac-cording to its merits.

; ibid., p. 582, annex 14e."A/C. l /188; ibid., p. 582, annex 14f.!2 Report of the First Committee (A/399) ; General Assembly,

Official Records, Second Session, Plenary Meetings, pp. 1450-1451, annex 3.

1392nd plenary meeting; ibid., pp. 311-320.

" Ibid., p. 317.1542nd and 43rd meetings; General Assembly, Official Rec-

ords, Second Session, Sixth Committee, pp. 37-44.i«A/C.6/162; ibid., pp. 306-308, annex 6b.17A/C.1/212; General Assembly, Official Records, Second

Session, First Committee, pp. 582-583, annex 14g.


"4. It was agreed by the Sixth Committee thatthese principles are to be transmitted to the FirstCommittee as suitable to give general guidance to theUnited Nations in connexion with future cases, withthe understanding that each case will be consideredin accordance with its particular circumstances."

III . FORMATION OF THE UNITED ARAB REPUBLIC,1958

17. The following note, dated 24 February 1958,was sent to the Secretary-General by the Foreign Min-ister of the United Arab Republic:18

"The plebiscite held in Egypt and Syria on 21February 1958 having made clear the will of theEgyptian and Syrian people to unite their two coun-tries in a single State, the Minister for ForeignAffairs of the United Arab Republic has the honourto notify the Secretary-General of the United Nationsof the establishment of the United Arab Republic,having Cairo as its capital, and the election, in thesame plebiscite, of President Gamal Abdel Nasseras President of the new Republic."

18. A further note of 1 March 1958 from the For-eign Minister to the Secretary-General stated as fol-lows :19

"The Minister for Foreign Affairs presents hiscompliments to H.E. the Secretary-General of theUnited Nations and, in pursuance of his note dated24 February 1958, regarding the formation of theUnited Arab Republic and the election of PresidentGamal Abdel Nasser, has the honour to request theSecretary-General to communicate the content of theabove-mentioned note to the following:

" 1 . All the States Members of the United Nations;

"2. Other principal organs of the United Nations;

"3. Subsidiary organs of the United Nations, par-ticularly those on which Egypt or Syria, or both,are represented.

"It is to be noted that the Government of theUnited Arab Republic declares that the Union is asingle Member of the United Nations, bound by theprovisions of the Charter, and that all internationaltreaties and agreements concluded by Egypt or Syriawith other countries will remain valid within the re-gional limits prescribed on their conclusion and inaccordance with the principles of international law."

19. In accordance with the request, the Secretary-General on 7 March 1958 transmitted the two notesto all Members of the United Nations and to principaland subsidiary organs of the Organization. The Secre-tary-General's note of transmittal stated:20

". . . The Secretary-General has now received cre-dentials for Mr. Omar Loutfi as Permanent Repre-sentative of the United Arab Republic to the UnitedNations, signed by the Minister for Foreign Affairsof the Republic. In accepting this letter of credentialsthe Secretary-General has noted that this is an actionwithin the limits of his authority, undertaken with-out prejudice to and pending such action as other

Organs of the United Nations may take on the basisof notification of the constitution of the United ArabRepublic and the Note of 1 March 1958."

20. The Trusteeship Council was then in session.The President of the Council, at the end of a meetingon the morning of 7 March 1958,21 read out the notefrom the Secretary-General, and stated that the Secre-tariat would make the necessary administrative arrange-ments for the next meeting of the Council. At thebeginning of the following meeting,22 a number ofrepresentatives welcomed the representative of theUnited Arab Republic to the Council; a few reservedtheir position, but there was no objection to the seatingof the United Arab Republic. Thereafter the represen-tatives of the Republic without objection took theirseats in all the organs of the United Nations of whichEgypt or Syria, or both, had been members.

21. The First United Nations Conference on theLaw of the Sea was also in session, and the note verbaleof the Secretary-General, with the two annexed notesfrom the United Arab Republic, was circulated as aConference document.23 At a plenary meeting on 18March 1958,24 the President of the Conference, afterreferring to the notes, welcomed the leader of thedelegation of the United Arab Republic, who wassubsequently welcomed also by a number of delegations.

IV. RESUMPTION OF INDEPENDENCE BY SYRIA, 1961

22. A revolution broke out on 28 September 1961in the Syrian Region of the United Arab Republic,and soon established control of the whole territory ofthe Region. By a cable dated 30 September 1961,25 thenew President of the Council of Ministers and Ministerfor Foreign Affairs of the Syrian Arab Republic in-formed the President of the General Assembly that hehad taken office at noon on the previous day. On5 October 1961 the President of the United ArabRepublic announced on the radio that his Governmentwould not oppose the readmission of Syria to the UnitedNations. On 8 October 1961, the Prime Minister ofSyria again cabled the President of the General As-sembly as follows :26

"I have the honour to refer to my cable dated30 September 1961 in which I informed you I hadbeen named President of the Council of Ministersand Minister of Foreign Affairs of the Syrian ArabRepublic and assured you of the firm adherence ofmy Government to the principles of the UnitedNations and of my Government's desire to exerciseits international relations on the basis of justice andpeace. It may be recalled that the Syrian Republicwas an original Member of the United Nations underArticle 3 of the Charter and continued its membershipin the form of joint association with Egypt underthe name of United Arab Republic. In resuming herformal status as an independent State the Govern-

18 S/3976, annex I ; Security Council, Official Records, Thir-teenth Year, Supplement for Jan., Feb., and Mar. 1958, p. 31.

i» S/3976, annex I I ; ibid., p. 32.20 See, for example, S/3976, loc. cit.

2 1 879th meeting, para. 52.22 880th meeting.23 A/CONF.13/L.4.24 Fifth plenary meeting; United Nations Conference on the

Law of the Sea, Official Records (A/CONF.13/38; UnitedNations publication, Sales No . : 58.V.4), vol. I I , p. 7.

25 A/4913 — S/4957.26 A/4914—S/49S7.

Succession of States and Governments 105ment of the Syrian Arab Republic has the honourto request that the United Nations take note of theresumed membership in the United Nations of theSyrian Arab Republic. By separate communicationI am submitting the credentials of the Delegationof Syria to the sixteenth session of the GeneralAssembly. I also have the honour to request that thecontents of this cable be communicated to thefollowing:

" (1) All Members of the United Nations;

"(2) Principal and subsidiary organs of theUnited Nations."

23. The two cables were published on 9 October1961 as documents of the General Assembly and theSecurity Council. At a meeting of the General Assemblyon the morning of 13 October 1961,2T the Presidentof the Assembly drew attention to the communicationsfrom Syria, and stated:

"I have consulted many delegations on this ques-tion and the consensus seems to be that, in view ofthe special circumstances of this matter, Syria, anoriginal Member of the United Nations, may beauthorized to be represented in the General Assemblyas it has specifically requested. The numerous con-sultations that I have held lead me to believe thatthere is no objection to such a course on the part ofany delegation. Therefore, if no objection is raisedbefore the beginning of this afternoon's plenary meet-ing, I shall request the Secretariat to take the nec-essary measures so that the delegation of the SyrianArab Republic may take its seat in the GeneralAssembly as a Member of the United Nations."

24. At the following meeting on the afternoon ofthe same day,28 the President of the General Assemblyannounced that:

". . . following the declaration that I made thismorning at the beginning of the meeting, I havereceived no objection on the part of any delegationor of any Member State of our Organization. Accord-ingly, the necessary measures have been taken, andthe delegation of the Syrian Arab Republic has takenits seat in the Assembly as a Member of our Organi-zation, with all the obligations and rights that gowith that status."

25. Thereafter Syria became a member of all organscomposed of all Members of the Organization. TheUnited Arab Republic retained all its memberships inorgans. Syria again participated in the Advisory Com-mission of the United Nations Relief and Works Agencyfor Palestine Refugees in the Near East, of whichSyria had become a member before the United ArabRepublic was formed in 1958.

V. T H E ADMISSION OF MALI AND SENEGAL TO

MEMBERSHIP, 1960

26. There is a fourth case which, while not relatingto succession to an already existing membership in theUnited Nations, should nevertheless be mentioned inthis memorandum. That is the case in which the Fed-

eration of Mali, after having been recommended by theSecurity Council for membership, divided into the twoseparate Republics of Mali and of Senegal. The Secu-rity Council thereafter made new recommendations forthe admission of Mali and Senegal, and the earlierrecommendation respecting the Federation of Mali wastreated as without effect. The details are given below.

27. By a telegram dated 23 June I960,29 the Gov-ernment of the Federation of Mali informed theSecretnry-General that the Federation, having accededto full independence on 20 June 1960. had decided toapply for membership in the United Nations. TheSecurity Council, at its 869th meeting on 28 June 1960,adopted a resolution30 recommending to the GeneralAssembly that the Federation be admitted to mem-bership.

28. On 20 August 1960 the Government of Senegalcabled the Secretary-General31 that on the same day theLegislative Assembly of Senegal had adopted an Actdeclaring the withdrawal of Senegal from the Federa-tion and proclaiming the independence of the Republic;in the same telegram the new Republic requestedadmission to the United Nations. The request for ad-mission was renewed in telegrams of 23 August and22 September I960.32

29. On 20 September 1960 the General Assemblyadmitted a number of States to membership, but post-poned the consideration of the Security Council's recom-mendation concerning the Federation of Mali.33

30. By a letter and a telegram, both dated 22 Sep-tember I960,34 the Secretary-General was informedthat the Sudanese Republic, which had been a partof the Federation of Mali, had adopted the name Re-public of Mali and had proclaimed its independence;the new Republic requested admission to the UnitedNations.

31. The Security Council, at its 907th meeting on28 September 1960, considered the separate applicationsby the two new Republics. After a discussion in whichtwo representatives expressed the view that the divi-sion of the federation into two States had "nullified"the Council's resolution of 28 June I960,35 the SecurityCouncil adopted two resolutions30 recommending theadmission of Senegal and Mali, respectively. On thesame day, 28 September, the General Assembly adoptedresolutions 1490 (XV) and 1491 (XV), admittingSenegal and Mali to membership in the United Nations.

2 7 1035th plenary meeting.2 8 1036th plenary meeting.

2 9 S/4347; Security Council, Official Records, Fifteenth Year,Supplement for April, May and June 1960, p. 34.

3 0 S/4357 ; ibid., p. 37.3 1 S/4470, annex I ; Security Council, Official Records, Fif-

teenth Year, Supplement for July, August and September 1960,pp. 120-121.

3 2 S/4470, annex III , and S/4S30 and Corr . l ; ibid., pp. 121and 175.

3 3 864th plenary meeting, paras. 55 and 56.3 4 S/4534 and S/4535; Security Council, Official Records, Fif-

teenth Year, Supplement for July, August and September 1960,pp. 205, 206.

3 5 907th meeting, paras. 32 and 88.3 6 S/4543 and S/4544; Security Council, Official Records,

Fifteenth Year, Supplement for July, August and September1960, pp. 207, 208.


DOCUMENT A/CN.4/150*

Succession of States in relation to general multilateral treaties of which the Secretary-General is thedepositary: memorandum prepared by the Secretariat

[Original: English/French][10 December 1962]

CONTENTSParagraphs Page

INTRODUCTION 1-8 107

CHAPTER I. SUCCESSION TO RIGHTS AND OBLIGATIONS UNDER TREATIES CONCLUDED

UNDER THE AUSPICES OF THE LEAGUE OF NATIONS 9-22 108

A. League of Nations treaties amended by United Nations Protocols 10-14 108

i. Treaties amended by the 1946 Protocol on Narcotics 10-13 108

ii. Treaties amended by other United Nations Protocols 14 108

B. League of Nations treaties not amended by United Nations Protocols 15-22 109

CHAPTER II. SUCCESSION TO RIGHTS AND OBLIGATIONS UNDER TREATIES CONCLUDED

UNDER THE AUSPICES OF THE UNITED NATIONS 23-131 110

Jordan 24 110

India and Pakistan 25-26 110

Burma 27 110

Ceylon 28-29 110

Israel 30 110

Indonesia 31-33 110

Laos, Cambodia and Viet-Nam 34-35 111

Sudan 36 111

Tunisia 37 111

Morocco 38-39 111

Ghana 40-42 112

Federation of Malaya 43-47 112

United Arab Republic 48 113

Guinea 49-53 113

Cameroon 54-59 113

Central African Republic 60-63 114

Chad 64-65 114

Congo (Brazzaville) 66-67 114

Congo (Leopoldville) 68-74 115

Cyprus 75-77 115

Dahomey 78-79 116

Gabon 80-81 116

Ivory Coast 82-84 116

Madagascar 85-89 117

Mali 9O_9i uj

Niger 92-93 117

Nigeria 94-99 117

Senegal 100-101 118

Somalia 102-106 118

Togo 107-109 119

Upper Volta 110-112 119

Mauritania 113-114 119

Sierra Leone 115-118 119

Syria 119-125 120

* Incorporating A/CN.4/150/Corr.l.


CONTENTS (continued)Paragraphs Page

Tanganyika 126-130 121

Algeria, Burundi, Jamaica, Rwanda, Trinidad and Tobago, Uganda and Western Samoa 131 122

CHAPTER III. GENERAL SUMMARY 132-164 122

A. Notifications concerning succession made by new States of their own accord . . . . 132 122

B. Letters from the Secretary-General inquiring about succession 133-134 122

C. Lists of treaties about which new States are consulted with regard to succession.. 135-155 122

i. Types of treaties included in the lists 136-143 122ii. Types of treaties not included in the lists 144-155 124

D. Summary of actions by States with regard to succession to treaties 156-164 125

Annex. GENERAL PROVISIONS ON DEVOLUTION OF TREATY RIGHTS AND OBLIGATIONS

No. 1. Jordan 126

No. 2. India and Pakistan 126

No. 3. Burma 126

No. 4. Ceylon 126

No. 5. Indonesia 127

No. 6. Morocco 127

No. 7. Ghana 127

No. 8. Federation of Malaya 127

No. 9. Cyprus 127

No. 10. Nigeria 127

No. 11. Somalia 127

No. 12. Sierra Leone 128

No. 13. Syria 128

Appendix. List of full titles and citations of United Nations multilateral treatiesreferred to by short titles in the memorandum 128

Introduction

1. During the fourteenth session of the InternationalLaw Commission the Secretary of the Commissionstated that the Secretariat would undertake the prepara-tion of a memorandum on the problem of successionof States in relation to general multilateral treatiesof which the Secretary-General is the depositary, andthis statement was noted in the Commission's report.1

This memorandum has been prepared in consequence.2. The object of this survey is to give a complete

account of the practice, both of States and of theSecretary-General, concerning State succession in rela-tion to all of the general multilateral treaties of whichthe Secretary-General is the depositary. This includesboth treaties concluded under the auspices of theUnited Nations and also treaties concluded under theauspices of the League of Nations, for which theSecretary-General took over the depositary functions inaccordance with General Assembly resolution 24 (I) of12 February 1946.

3. In the course of the performance of the functionsof registration and publication of treaties under Ar-ticle 102 of the Charter, the United Nations Secretariathas also been notified by certain other depositaries(the International Labour Organisation, Poland, Switz-erland etc.) of cases of succession to treaty obligations;many of these cases are given brief mention herein.Sufficient time has not, however, been available to make

a complete study of the practice under other treatiesthan those for which the Secretary-General is thedepositary; such a study would require the makingof inquiries of numerous other depositaries.2

4. A brief account of the practice concerning suc-cession under United Nations and League of Nationstreaties was given in the "Summary of the Practiceof the Secretary-General as Depositary of MultilateralAgreements",3 published in August 1959. Since thatdate, over two dozen new States have come into exis-tence, and the practice has correspondingly increasedin volume. This memorandum covers the depositarypractice of the Secretary-General up to 1 December1962.

5. The following part of this memorandum, chapterI, surveys the practice with respect to treaties con-cluded under the auspices of the League of Nations.Chapter II surveys the practice with respect to treatiesconcluded under the auspices of the United Nations.In chapter II the various cases of possible successionare examined in chronological order, except that, forpurposes of convenient reference, the group of Stateswhich became independent in 1960 and were admitted

1 General Assembly, Official Records, Seventeenth Session,Supplement No. 9 (A/5209), para. 72.

2 It may be mentioned that the practice of the InternationalLabour Organisation is surveyed in two authoritative articles.See C. W. Jenks, "State Succession in respect of Law-MakingTreaties", British Year Book of International Law, vol. 29(1952), p. 105, and F. Wolf, "Les Conventions du Travail et laSuccession d'Etats", Annuaire Francais de Droit international,1961, p. 742.

3 ST/LEG/7.


to membership in the United Nations in the same yearis treated in alphabetical order.

6. Chapter III consists of a general summary of thecases of the practice previously described on a Stateby State basis, and particular attention is given to pointsof practical importance which remain unsettled or onwhich there is a divergence of views.

7. The annex to this memorandum contains a collec-tion of provisions on succession to treaties. Most of theseprovisions are from agreements between new Statesand their predecessors, but some are from the nationallaws of the new States.

8. For convenience, United Nations treaties are re-ferred to in the memorandum by short titles. Theappendix shows for each short title the full title andthe citation of the treaty in question.

Chapter I. Succession to rights and obligationsunder treaties concluded under the auspices ofthe League of Nations

9. There have been certain differences of practicedepending upon whether the League of Nations treatieswere or were not amended by protocols concluded underthe auspices of the United Nations. The two classes ofLeague treaties will therefore be examined separately.

A. LEAGUE OF NATIONS TREATIES AMENDED BY UNITEDNATIONS PROTOCOLS

i. Treaties amended by the 1946 Protocol on Narcotics

10. The General Assembly, by resolution 54 (I)of 19 November 1946, approved the Protocol signedat Lake Success, New York, on 11 December 1946,amending the Agreements, Conventions and Protocolson Narcotic Drugs, concluded at The Hague on23 January 1912, at Geneva on 11 February 1925 and19 February 1925 and 13 July 1931, at Bangkok on27 November 1931 and at Geneva on 26 June 1936.

Article V of the Protocol provides:"The present Protocol shall be open for signature

or acceptance by any of the States Parties to theAgreements, Conventions and Protocols on NarcoticDrugs of 23 January 1912, 11 February 1925,19 February 1925, 13 July 1931, 27 November 1931and 26 June 1936, to which the Secretary-Generalof the United Nations has communicated a copy ofthe present Protocol."

Article VII, paragraph 2 of the Protocol provides:"The amendments set forth in the annex to the

present Protocol shall come into force in respect ofeach Agreement, Convention and Protocol when amajority of the Parties thereto have become Partiesto the present Protocol."4

11. It was accordingly necessary for the Secretary-General to ascertain what States were parties to thetreaties being amended, both in order to determinethe States to which copies of the 1946 Protocol onNarcotics should be sent, and to determine when theamendments of the various treaties would enter into

4 Though the Protocol is open only to parties to the oldtreaties, most of the treaties were amended by the Protocol soas to provide that the treaties (as amended) are open foraccession by any Member of the United Nations or by any non-member to whom the Secretary-General has communicated acopy of the treaty in question.

force. Certain of the original Members of the UnitedNations—in particular, Iraq, Lebanon, Syria and thePhilippines—have only recently attained full indepen-dence and have not separately been parties to thetreaties, but one or more of the treaties had beenextended to them by the Powers formerly responsiblefor their international relations. Jordan was in the sameposition, except that it was not then a Member ofthe United Nations. The Secretary-General satisfiedhimself that all five of the new States in question con-sidered themselves bound by the treaties which hadformerly been made applicable to their territories, andaccordingly treated them as parties to those treatiesby sending copies of the Protocol to them. Iraq, Lebanon,Syria and the Philippines all became parties to theProtocol; Jordan did not do so, but acceded to certainof the League treaties as amended. Indonesia also chosenot to rely on succession, but acceded to certain of thetreaties as amended.

12. A question later arose, which was not settledby the text of the Protocol, whether certain countrieswere bound by the International Opium Conventionof 23 January 1912. Lebanon, Syria and the Philippinesdeposited declarations with the Secretary-General, re-ceived on 24 May 1954, 20 January 1954 and 30 Sep-tember 1959, respectively, recognizing that they werebound by the 1912 Convention. Other States whichhave recognized themselves as bound through succes-sion by the 1912 Convention are Ceylon, Cambodia,Laos, Vict-Nam and the Federation of Malaya.

13. A number of new States have recognized thatthey continued to be bound by the old treaties asamended by the Protocol, by virtue of succession toStates which were parties to the treaties and laterbecame parties to the Protocol. As this situation doesnot represent direct succession to the League treaties,it is discussed in chapter III of this memorandum.

ii. Treaties amended by other United Nations Protocols

14. The same procedure was followed with respectto the later United Nations protocols amending Leagueconventions. All those protocols have final clauses likethose of the Protocol on Narcotics, opening the pro-tocols for signature or acceptance only to parties tothe old treaties, and providing for the entry into forceof the amendments when a majority (or a specifiednumber) of those States have become parties to theprotocols. Tn each case the Secretary-General ascer-tained whether the old treaties had been made applicablein the territories of the new States, and whether thoseStates considered themselves bound; if so, he sentcopies of the protocols to those States. On the whole,fewer States were involved than in the case of theNarcotics Protocol of 1946. Of the States to whomcopies of the protocols were sent, some became partiesto them, while others have not yet done so. The follow-ing States, by virtue of succession to other States partiesto the League conventions, have become parties toUnited Nations amending protocols:

(a) Protocol signed at Lake Success, New York,on 12 November 1947, to amend the Convention forthe Suppression of the Traffic in Women and Children,concluded at Geneva on 30 September 1921, and theConvention for the Suppression of the Traffic inWomen of Full Age, concluded at Geneva on11 October 1933:

BurmaLebanon


Pakistan5

Sierra LeoneSyria

(b) Protocol signed at Lake Success, New York,on 12 November 1947, to amend the Convention forthe Suppression of the Circulation of, and Traffic in,Obscene Publications, concluded at Geneva on 12September 1923:

BurmaPakistan

(c) Protocol signed at Paris on 9 December 1948,amending the International Convention relating toEconomic Statistics, signed at Geneva on 14 December1928:

BurmaPakistan

(d) Protocol signed at Lake Success, New York,on 4 May 1949, amending the Agreement for the Sup-pression of the Circulation of Obscene Publications,signed at Paris on 4 May 1910:

CeylonIndia (which had not separately become a party to

the old treaty)IraqPakistan

(e) Protocol signed at Lake Success, New York,on 4 May 1949, amending the International Agreementfor the Suppression of the White Slave Traffic, signedat Paris on 18 May 1904 and the International Con-vention for the Suppression of the White Slave Traffic,signed at Paris on 4 May 1910:

CeylonIndia (which had not separately become a party to

the old treaties)IraqPakistan

(/) Protocol signed on 7 December 1953, amendingthe Slavery Convention signed at Geneva on 25 Sep-tember 1926:

BurmaGuineaMorocco

B. LEAGUE OF NATIONS TREATIES NOT AMENDED BY

UNITED NATIONS PROTOCOLS

15. No systematic attempt has yet been made by theSecretary-General to ascertain what States are partiesby succession to League of Nations treaties other thanthose which have been amended by United NationsProtocols. Nevertheless the matter has come up withregard to various particular treaties.

16. Certain new States have of their own accordinformed the Secretary-General that they consider thatthey continue to be bound by various League treaties.Thus Pakistan, by a letter from the Permanent Mission

to the United Nations received on 29 July 1953, in-formed the Secretary-General that by reason of article 4of the Schedule to the Indian Independence (Interna-tional Arrangements) Order, 1947,6 the rights andobligations under the following agreements devolvedupon Pakistan, and that Pakistan "therefore considersitself a party to these agreements":

i. Convention on Certain Questions relating to theconflict of Nationality Laws, signed at The Hague,12 April 1930 ;7

ii. Protocol relating to a Certain Case of Stateless-ness, signed at The Hague, 12 April 1930 ;8

iii. Special Protocol concerning Statelessness, signedat The Hague, 12 April 1930.9

17. It may be noted that the third of these agree-ments, the Special Protocol concerning Statelessness,though ratified by India in 1932, has not yet enteredinto force. The Secretary-General by a circular note10

informed Governments of the receipt of the communica-tion from Pakistan.

18. Pakistan has also sent communications to theSecretary-General recognizing that it continues to bebound by the Convention relating to the Simplificationof Customs Formalities, signed at Geneva on 3 Novem-ber 1923.n These communications, the first of whichwas received on 27 January 1951,12 relate to the desig-nation of organizations for the purpose of deliveringcertificates of origin under paragraph 2 of article 11of the Convention. The Secretary-General by circularnotes has informed Governments of the receipt of eachcommunication.

19. Laos on 24 November 1956 deposited with theSecretary-General a declaration stating that, as it hadsucceeded to the rights and obligations arising out ofthe application by France in the territory of Laos ofthe Convention and Statute on Freedom of Transit,signed at Barcelona on 20 April 1921,13 it recognizedthat it continues to be bound by the Convention andStatute and undertook to apply them in its own name.The Secretary-General sent a circular note to Govern-ments about the deposit of the declaration.14

20. In certain other cases, States parties to Leaguetreaties have requested the Secretary-General, in hiscapacity as depositary, to ascertain whether certain newStates consider themselves bound through successionby the obligations of those treaties. In all cases theSecretary-General has made an inquiry of the newState, and has transmitted the reply, if any, to the Statewhich requested the information, but he has not in-formed other Governments. The States listed undereach of the following treaties have, by notes verbalesaddressed to the Secretary-General, informed him thatthey consider themselves bound by those treaties:

i. Convention signed at Geneva on 19 March 1931for the Settlement of Certain Conflicts of Lawsin connexion with Cheques, and Protocol:15

Indonesia

5 In signing the Protocol the representative of Pakistan madethe following declaration: "The representative of Pakistanwishes to indicate that in accordance with paragraph 4 of theSchedule to the Indian Independence Order, 1947, Pakistanconsiders itself a Party to the International Convention forthe Suppression of the Traffic in Women and Children concludedat Geneva on 30 September 1921 by the fact that India becamea Party to the above-mentioned International Convention beforethe 15th day of August 1947."

6 See annex, No. 2.7 League of Nations Treaty Series, vol. CLXXIX, p. 89.s Ibid., vol. CC, p. 540.9 League of Nations document C.27.M.16.1931.V.10 CN.84.I953.TREATIES, 24 August 1953.11 Leaque of Nations Treaty Series, vol. XXX, p. 371.12 CN.36.19S7.TREATIES," 20 April 1951.13 League of Nations Treaty Series, vol. VII, p. 11.14 CN:il7.1956.TREATIES.15 League of Nations Treaty Series, vol. CXLIII, p. 407.


ii. Convention signed at Geneva on 7 June 1930 onthe Stamp Laws in connexion with Bills ofExchange and Promissory Notes, and Protocol :16

Federation of Malayaiii. Convention signed at Geneva on 19 March 1931

on the Stamp Laws in connexion with Cheques :17

Federation of MalayaIndonesia

iv. Convention signed at Geneva on 19 March 1931providing a Uniform Law for Cheques withAnnexes and Protocol :18

Indonesia.21. On the other hand, certain Governments, in

response to such inquiries, have informed the Secretary-General that they do not consider themselves bound bythe treaties in question. Thus Indonesia, in a noteverbale of 16 September 1959, stated, in regard to theProtocol, signed at The Hague on 12 April 1930, re-lating to Military Obligations in Certain Cases ofDouble Nationality :19

"The Republic of Indonesia is however of theopinion that all agreements signed by the Netherlandson behalf of or declared to be valid for the formerNetherlands East Indies do not automatically applyto the Republic of Indonesia as a successor of theformer Netherlands East Indies.

"The Republic of Indonesia therefore does notconsider itself bound by said Protocol."22. lordan, by a note verbale of 12 January 1960,

informed the Secretary-General that on 24 November1948 the Jordan Council of Ministers had taken actionto invalidate the two Conventions on Stamp Lawsreferred to under ii and iii in paragraph 20 above.

Chapter II. Succession to rights and obligationsunder treaties concluded under the auspices ofthe United Nations23. At the beginning of the existence of the United

Nations the problem of succession arose only with re-spect to treaties concluded under the auspices of theLeague of Nations. As time went on, however, anincreasing number of United Nations treaties were con-cluded, and were applied or extended to dependentterritories which then became independent States. TheUnited Nations gradually developed a practice for ascer-taining whether the new States considered that theycontinued to be bound by treaties applied to theirterritories by their predecessors. The practice will beconsidered in this section separately for each Statewhich came into being, in chronological order of thedate of independence; however, the seventeen Stateswhich attained independence in 1960 and were admittedto the United Nations in September and October ofthat year are treated in alphabetical order so as tofacilitate reference. Short titles have been used in re-ferring to the treaties concluded under the auspices ofthe United Nations. The full titles and citations ofall those treaties are given in the appendix.

24. Jordan, which attained independence on 22March 1946, was the first new State to come into being

i« Ibid., vol. 143, p. 337.« Ibid., vol. 143, p. 7.™ Ibid., vol. 143, p. 355.i» Ibid., vol. 178, p. 227.

after the birth of the United Nations. The agreementbetween Jordan and the United Kingdom on successionto treaty rights and obligations is reproduced in theannex, No. 1. For the Secretary-General the only prob-lem of succession in respect of Jordan related to treatiesconcluded under the auspices of the League of Nations.The position of Jordan in regard to those treaties hasbeen examined in the preceding section of this mem-orandum.

25. India and Pakistan attained independence on 15August 1947. India was an original Member of theUnited Nations, and continued to be a Member afterindependence and the separation of Pakistan; Pakistanwas admitted to membership on 30 September 1947.India and Pakistan reached an agreement on devolutionof international rights and obligations which was pro-mulgated by the Governor-General in the Indian Inde-pendence (International Arrangements) Order, 1947(see annex, No. 2).

26. India before its independence had, as a Memberof the League of Nations and the United Nations, be-come a separate party to numerous treaties of theLeague and to the 1946 Protocol of the United Nationsamending the narcotics treaties, and continued to beregarded as a party after independence. Pakistan's suc-cession to India as a party to the League treaties hasbeen examined in the preceding section.

27. Burma became independent on 4 January 1948,and was admitted to the United Nations on 19 April1948. The agreement between Burma and the UnitedKingdom on succession to international rights and ob-ligations is reproduced in the annex, No. 3. Burma'ssuccession to League treaties has been discussed above.There were relatively few United Nations treaties towhich Burma could have succeeded, and apparently noinquiry was made on the point. One of those treatieswas the 1946 Convention on the Privileges and Im-munities of the United Nations, to which Burma be-came a party by accession in 1955.

28. Ceylon became independent on 4 January 1948,and was admitted to the United Nations on 19 April1948. The agreement between Ceylon and the UnitedKingdom on succession to international rights and ob-ligations is reproduced in the annex, No. 4.

29. Ceylon's succession to the obligations of Leaguetreaties has been discussed above. By a note verbaledated 27 November 1957, received on 4 December 1957,the Foreign Minister of Ceylon notified the Secretary-General that his country was applying in its own namethe 1925 Opium Convention and the 1931 Conventionon Narcotic Drugs, both as amended by the 1946Protocol.

30. Israel declared itself independent on 15 May1948, and was admitted to the United Nations on 11May 1949. It has not recognized that it continues tobe bound through succession by any treaty of whichthe Secretary-General is the depositary. The positionof Israel has been explained in a reply to a questionnaireof the International Law Commission (A/CN.4/19;Yearbook of the Commission, 1950, vol. II, pp. 206-218).

31. Indonesia's independence was provided for inan agreement with the Netherlands which came intoforce on 27 December 1949, and which contained pro-visions on the devolution of treaty obligations (repro-duced in the annex, No. 5). Indonesia was admittedto the United Nations on 28 September 1950.


32. Indonesia, after being admitted as a contractingparty to the General Agreement on Tariffs and Tradeon 27 February 1950 by a decision of the other con-tracting parties, addressed to the Secretary-General adeclaration acknowledging

"that the rights and obligations of the Kingdom ofthe Netherlands arising out of the signature or ac-ceptance of the following Protocols to the GeneralAgreement... are to be considered as rights and ob-ligations of the Republic of Indonesia inasmuch assuch Protocols are applicable to the jurisdiction ofthe Republic of Indonesia".

In addition, Indonesia recognized that it was boundby a notification made by the Netherlands under oneof the GATT Protocols.

33. Indonesia notified the Secretary-General on 8March 1950 that it considered itself bound by the 1931Convention on Narcotic Drugs. On 3 April 1958, how-ever, Indonesia deposited with the Secretary-Generalan instrument of accession to the 1931 Convention asamended by the 1946 Protocol, instead of simply be-coming party to the 1946 Protocol, which it couldhave done as a party to the 1931 Convention.

34. Laos, Cambodia and Viet-Nam were grantedindependence within the French Union on variousdates in 1949; Laos and Cambodia were admitted tomembership in the United Nations on 14 December1955.

35. A joint notification of 7 October 1950 fromFrance and Laos informed the Secretary-General of thetransfer by the French Government to the Governmentof Laos of the duties and obligations arising from thefollowing agreements:

i. 1925 Agreement on Opium, as amended by the1946 Protocol;

ii. 1925 Opium Convention, as amended by the 1946Protocol;

iii. 1931 Convention on Narcotic Drugs, as amendedby the 1946 Protocol;

iv. 1948 Protocol on Drugs.In the cases of Cambodia and Viet-Nam, similar noti-fications were made on 11 August 1950 and 3 October1951, respectively, in regard to the same treaties,except that Cambodia's notification did not mentionthe 1948 Protocol on Drugs.

36. The Sudan became independent on 1 January1956 and was admitted to the United Nations on 12November 1956. No agreement with the former Con-domini (Egypt and the United Kingdom) on the devo-lution of treaty obligations has been registered with theSecretariat. By a letter dated 5 September 1957, re-ceived on 10 September 1957, the Permanent Repre-sentative of the Sudan stated that he had been in-structed to inform the Secretary-General that hiscountry "declares herself bound by the accession madeon her behalf in 1927 by the Condomini to the SlaveryConvention of 25 September 1926", and also to thatConvention as amended by the 1953 Protocol.

37. Tunisia became independent on 20 March 1956,and was admitted to the United Nations on 12 Novem-ber 1956. No agreement with France on the devolutionof treaty obligations has been registered with the Secre-tariat. By a letter dated 7 December 1956, the Secre-tariat inquired whether Tunisia considered itself boundby the following treaties whose application had beenextended to that country:

i. 1904 Agreement on the White Slave Traffic, asamended by the 1949 Protocol;

ii. 1910 Convention on the White Slave Traffic, asamended by the 1949 Protocol;

iii. 1925 Opium Convention, as amended by the1946 Protocol;

iv. 1931 Convention on Narcotic Drugs, as amendedby the 1946 Protocol;

v. 1948 Protocol on Drugs.No reply was received to this inquiry. By a com-munication received on 24 October 1957, Tunisia re-cognized that it continues to be bound by the 1951conventions of the International Labour Organisation;tions recognizing that it continues to be bound by twoconventions of the International Labour Organisation;these declarations have been registered with the UnitedNations Secretariat by the Director-Genera] of theInternational Labour Office.

38. Morocco regained its independence through thetermination of the protectorates and of the specialstatus of Tangier on various dates between March andOctober 1956. It concluded with France an agreementof 26 May 1956 whose provisions relating to treatyobligations are reproduced in the annex, No. 6. Mo-rocco was admitted to the United Nations on 12 Nov-ember 1956.

39. By letters of 29 May, 30 August and 14 Sep-tember 1956 Morocco inquired of the Secretary-Generalabout the method of becoming party, in accordancewith the procedure in effect, to various treaties in-cluding the 1949 Convention on Road Traffic and the1951 Convention on the Status of Refugees, both ofwhich had been made applicable in Morocco by France.By a letter of 25 October 1956 the Secretariat replied:

(Translation) ". . . The Secretary-General,, in theexercise of his depositary functions under the relevantconventions, has always considered it desirable thatthe status of States succeeding to the rights and obli-gations arising out of conventions should be clearlydefined in relation to the other participating States.That is the reason for the practice, based on the rele-vant general principles of international law, by whicha State assuming the conduct of its own foreign re-lations is requested to indicate to the Secretary-General by a formal notification those internationalconventions and agreements concluded in its nameby which it acknowledges itself to be bound...".

Accordingly Morocco, by a declaration dated 3 Nov-ember 1956 and received on 7 November 1956, signedby the Minister for Foreign Affairs, recognized thatit continued to be bound by the following treaties:

i. 1904 Agreement on the White Slave Traffic, asamended by the 1949 Protocol;

ii. 1910 Convention on the White Slave Traffic, asamended by the 1949 Protocol;

iii. 1925 Opium Convention, as amended by the 1946Protocol ;


v. 1948 Protocol on Drugs;vi. 1949 Convention on Road Traffic;vii. 1951 Convention on the Status of Refugees.

Morocco has also made declarations, which have beenregistered with the Secretariat, recognizing that it con-


tinues to be bound by at least four conventions of theInternational Labour Organisation.

40. Ghana became independent on 6 March 1957,and was admitted to the United Nations on 8 March1957. It had with the United Kingdom on 25 November1957 an exchange of notes relating to succession totreaty obligations (reproduced in part in the annex,No. 7). By a letter dated 18 March 1958 the Secretary-General referred to the exchange of notes, and to thefact that the United Kingdom had extended the applica-tion of the following treaties to the Gold Coast:

i. 1912 Opium Convention, as amended by theProtocol of 1946;

ii. 1925 Opium Convention, as amended by theProtocol of 1946;

iii. 1931 Convention on Narcotic Drugs, asamended by the 1946 Protocol;

iv. 1948 Protocol on Drugs;v. 1921 Convention on Traffic in Women and

Children;vi. 1904 Agreement on the White Slave Traffic,

as amended by the 1949 Protocol;vii. 1910 Convention on the White Slave Traffic,

as amended by the 1949 Protocol;viii. 1923 Convention on Obscene Publications, as

amended by the 1947 Protocol ;ix. 1910 Agreement on Obscene Publications, as

amended by the 1949 Protocol;x. 1952 Convention on Importation of Commercial

Samples;xi. 1928 Convention on Economic Statistics, as

amended by the 1948 Protocol;xii. 1950 Agreement on the Importation of Educa-

tional, Scientific and Cultural Materials.The letter stated that it was the understanding of theSecretariat that, pursuant to its agreement with theUnited Kingdom, the Government of Ghana considereditself bound by those treaties, and requested con-firmation.

41 By a letter dated 29 March 1958, received on7 April 1958, the Permanent Secretary of the Ministryfor Foreign Affairs confirmed that Ghana considereditself bound by all of the foregoing treaties.

42. Ghana acceded to the Convention on the Privi-leges and Immunities of the United Nations on 5August 1958, and to the Convention on the Privilegesand Immunities of the Specialized Agencies on 9 Sep-tember 1958. No inquiry had been made as to whetherGhana considered itself bound through succession bythose conventions.

43. The Federation of Malaya became independenton 31 August 1957, and was admitted to the UnitedNations on 17 September 1957. By a letter dated 20September 1957, the Secretariat, referring to article 169of the Constitution of the Federation, stated that as theUnited Kingdom had acceded to the Convention on thePrivileges and Immunities of the United Nations, itwas the Secretariat's understanding that the Federa-tion considered itself bound by the Convention; con-firmation of this understanding was requested. By aletter dated 16 October 1957, the Permanent Secretaryof the Ministry of External Affairs replied that

" . . . Whilst the Federation considers itself boundby the Convention to which the United Kingdomacceded in 1946 on behalf of the territory of the

Federation, this is not by reason of Article 169 ofthe Constitution . . .

"The privileges and immunities of the UnitedNations in the independent Federation of Malayadepend for their legal force upon the DiplomaticPrivileges (United Nations and International Courtof Justice) Order, 1949 . . . The Order formed partof the existing law of the Federation in operationimmediately before independence and was continuedin force after independence by Article 162 of theConstitution."44. By letters dated 9 December 1957, the Secre-

tariat, referring to an exchange of notes between theFederation and the United Kingdom which had beenregistered with the Secretariat on 25 October 1957,20

stated that it was the Secretariat's understanding thatthe Federation considered itself bound by certaintreaties extended to its territory, and requested con-firmation. The treaties listed in the letters were thefollowing:

i. 1925 Opium Convention, as amended by the1946 Protocol;

ii. 1931 Convention on Narcotic Drugs, asamended by the 1946 Protocol;

iii. 1948 Protocol on Drugs;iv. 1904 Agreement on the White Slave Traffic,

as amended by the 1949 Protocol;v. 1910 Convention on the White Slave Traffic,

as amended by the 1949 Protocol;vi. 1910 Agreement on Obscene Publications, as

amended by the 1949 Protocol;vii. 1921 Convention on the Traffic in Women

and Children, as amended by the 1947 Pro-tocol ;

viii. 1923 Convention on Obscene Publications, asamended by the 1947 Protocol;

ix. 1949 Agreement for provisional application ofDraft Customs Conventions;

x. 1950 Agreement on Importation of Educa-tional, Scientific and Cultural Materials;

xi. 1952 Convention on Importation of Commer-cial Samples;

xii. 1954 Convention on Customs Facilities forTouring;

xiii. 1954 Additional Protocol on Importation ofTourist Publicity Documents;

xiv. 1954 Customs Convention on Private RoadVehicles.

45. By a letter dated 29 April 1958, received on7 May 1958 from the Foreign Ministry, the Federa-tion declared itself bound by the treaties numbered xii,xiii and xiv in the foregoing list. By a further letterdated 14 August 1958 received on 21 August 1958,the Permanent Secretary of the Ministry of ExternalAffairs stated that the Federation considered itselfbound by the treaties numbered i, ii, iii, vi, viii, andxi, in the foregoing list. By a third letter dated29 June 1959, the Permanent Representative of theFederation stated that his country considered itselfbound by the treaties numbered ix and x in the list.The letter also explained that the treaties numberediv, v and vi had never been extended to Malaya bythe United Kingdom, and thus the Federation didnot consider itself bound by them.

20 Reproduced in annex, No. 8.


46. In 1961 one of the specialized agencies, notingthat the Federation had recognized that it continuedto be bound by the 1946 Convention on the Privilegesand Immunities of the United Nations, requested theSecretary-General to inquire whether Malaya also con-sidered itself bound by the 1947 Convention on thePrivileges and Immunities of the Specialized Agencies.Accordingly the Secretary-General wrote to the Fed-eration on 28 November 1961, referring to the previ-ous actions of Malaya with respect to succession totreaties, and also to the fact that a Diplomatic Privi-leges (Specialized Agencies) Order 1949 was in effectat the time of independence, and stating his under-standing that the Federation likewise considered itselfbound by the Specialized Agencies Convention. TheForeign Ministry replied by a letter dated 23 March1962, received on 29 March 1962, confirming thisunderstanding.

47. Thus the Federation of Malaya recognized thatit continue to be bound by all the treaties applicablein its territory about which the Secretary-Generalinquired.

48. The United Arab Republic was formed by theunion of Egypt and Syria as the result of a plebisciteheld on 21 February 1958. By a note dated 1 March195821 the Foreign Minister of the Republic informedthe Secretary-General that

"It is to be noted that the Government of theUnited Arab Republic declares that the Union isa single Member of the United Nations, bound bythe provisions of the Charter, and that all inter-national treaties and agreements concluded by Egyptor Syria with other countries will remain validwithin the regional limits prescribed on their con-clusion and in accordance with the principles ofinternational law."

Accordingly, for the duration of the union, the Sec-retary-General, in his publication on the Status ofMultilateral Conventions,22 listed the United ArabRepublic as a party to all the treaties to which Egyptor Syria had been parties before the Union wasformed; under the name of the Republic it was indi-cated whether Egypt or Syria or both had takenaction in respect of the treaty in question.

49. Guinea became independent on 2 October 1958,and was admitted to the United Nations on 12 De-cember 1958. No agreement with France on the devolu-tion of treaty obligations has been registered with theSecretariat.

50. The Secretary-General, by a letter dated 18February 1959, inquired whether Guinea considereditself bound by the following treaties, which had beenapplied to its territory before independence:

i. 1946 Convention on the Privileges and Im-munities of the United Nations;

ii. 1951 Convention on Refugees;iii. 1912 Opium Convention;iv. 1925 Opium Convention, as amended by the

1946 Protocol;

v. 1948 Protocol on Drugs;vi. 1953 Opium Protocol;

vii. 1904 Agreement on the White Slave Traffic,as amended by the 1949 Protocol;

2 1 S/3976, annex I I ; Security Council, Official Records, Thir-teenth Year, Supplement for Jan., Feb. and Mar. 1958, p. 32.

22 ST/LEG/3/Rev.l .

viii. 1910 Convention on the W h i t e Slave Traffic,as amended by the 1949 Pro toco l ;

ix . 1949 Convent ion on R o a d Traffic;x . 1953 Convention on the Political R igh t s of

W o m e n ;xi . 1926 Convention on Slavery.

51 . A s no reply was received, a new letter wassent on 5 December 1961 regard ing the same list oftreaties, and in addition the 1931 Convention on Nar-cotic Drugs, as amended by the 1946 Protocol, andthe 1933 Convention on the Traffic in Women. Inthis letter it was explained that the Opium Protocolof 1953 was not yet in force, though it had beenratified by France; if, however, Guinea considereditself bound by the ratification, it would be includedin the list of parties as soon as the Protocol enteredinto force.

52. By a letter dated 21 March 1962, received on30 March 1962, the Minister for Foreign Affairs ofGuinea informed the Secretary-General that his coun-try considered itself bound by the Convention of 1926on Slavery. By a further letter of 14 April 1962,received on 26 April 1962, the Minister for ForeignAffairs notified the Secretary-General that Guineaconsidered itself bound by the Opium Convention of1925, as amended by the Protocol of 1946.

53. Guinea has not yet replied concerning the othernine treaties about which inquiry was made.

54. Cameroon became independent on 1 January1960, and was admitted to the United Nations on20 September 1960. No agreement with France on thedevolution of treaty obligations has been registeredwith the Secretariat.

55. By a letter dated 21 April 1960, the PrimeMinister of Cameroon inquired from the President ofthe Permanent Central Opium Board as to the methodby which his country could become party to the treatieson narcotics. The letter was transmitted to the Sec-retary-General as depositary of the treaties. The Sec-retary-General replied by a letter dated 21 March1961, stating in part:

(Translation) ". . . It should be noted that the prac-tice generally followed by the new States withregard to the rights and obligations arising out ofinternational agreements made applicable to theirterritory before they attained independence is toacknowledge themselves to be bound by these agree-ments through a formal notification addressed tothe Secretary-General. This procedure has the ad-vantage of preserving continuity in the applicationof these agreements, to which the new State becomesa party in its own name as of the date of inde-pendence . . . "

The letter then gave the following list of treaties towhich that procedure was applicable:


ii. 1951 Convention on Refugees;iii. 1912 Opium Convention;iv. 1925 Opium Convention, as amended by the

1946 Protocol;

v. 1931 Convention on Narcotic Drugs, asamended by the 1946 Protocol;

vi. 1948 Protocol on Drugs;vii. 1933 Convention on the Traffic in Women;

114 Yearbook of the International Law Commission, Vol. H

viii. 1904 Agreement on the White Slave Traffic,as amended by the 1949 Protocol;

ix. 1910 Convention on the White Slave Traffic,as amended by the 1949 Protocol;

x. 1949 Convention on Road Traffic;xi. 1926 Convention on Slavery;

xii. 1953 Convention on the Political Rights ofWomen (which France had ratified with adeclaration).

It was also explained that France had ratified theOpium Protocol of 1953, but that the Protocol wasnot yet in force.

56. By a series of letters dated between 16 Oc-tober 1961 and 1 March 1962, the Minister for For-eign Affairs of Cameroon notified the Secretary-General that Cameroon recognized that it continues tobe bound by all the treaties in the foregoing list ex-cept for the 1949 Convention on Road Traffic andthe 1953 Convention on the Political Rights of Women,about which it has not yet expressed its position.Cameroon also notified the Secretary-General that itconsidered itself bound by the 1953 Opium Protocol.~ 57. By a declaration of 7 June 1960, transmitted

to the Director-General of the International LabourOffice and registered by him with the United NationsSecretariat, Cameroon recognized that it continued tobe bound by eleven conventions of the InternationalLabour Organisation.

58. As the result of a plebiscite held in February1961, the Southern Cameroons, which had formedpart of the Trust Territory of the Cameroons underthe administration of the United Kingdom, becamepart of the Federal Republic of Cameroon on 1 Oc-tober 1961.

59. On 28 August 1962, the Federal Republic ofCameroon declared to the Director-General of theInternational Labour Office that it was bound, inrespect of the Federated State of Eastern Cameroon(the former Trust Territory under French admin-istration), by the eleven conventions of the Interna-tion Labour Organisation which were the subject ofits declaration of 7 June 1960; it also declared thatit was bound, in respect of the Federated State ofWestern Cameroon (formerly under United Kingdomadministration), by fourteen conventions of the Inter-national Labour Organisation. Only two of these con-ventions are in force in both Eastern and WesternCameroon, that is, throughout the territory of theFederal Republic.

60. The Central African Republic became inde-pendent on 13 August 1960, and was admitted to theUnited Nations on 20 September 1960. No agree-ment with France on the devolution of treaty obliga-tions has been registered with the Secretariat.

61. By letters of 20 March and 14 December 1961the Secretary-General inquired whether the CentralAfrican Republic recognized that it continued to bebound by the treaties listed above in the case ofCameroon (see para. 55 above), all of which hadlikewise been extended by France to the territory ofthe Central African Republic. By a series of notifica-tions, all dated 23 August 1962, the Minister for For-eign Affairs informed the Secretary-General that theRepublic considered itself bound by all of the treatiesabout which inquiry had been made, including the1953 Opium Protocol. The Central African Republic

also recognized on 27 October 1960 that it continuesto be bound by twelve conventions of the Interna-tional Labour Organisation, and these actions havebeen registered with the United Nations Secretariat.

62. The Central African Republic also notified theSecretary-General that it considered itself bound bycertain treaties which had never been extended byFrance to its territory. These notifications, by agree-ment with the Government were treated as accessions.

63. By a note verbale of 25 October 1962, theMinister for Foreign Affairs of the Central AfricanRepublic made the following statement in reply to theSecretary-General's request for materials relating tosuccession of States:

(Translation) "In regard to international relations,treaties concluded by the former colonizing Powerin the name of its overseas territories can be con-sidered to remain in force only in respect of thoseclauses which are not incompatible with the inde-pendence of the new sovereign States. Accordinglythe Central African Republic reserves the right todenounce treaties which do not appear to it to recog-nize its newly-acquired sovereignty. This positionis supported by that of international organizationswhich require a State that has become independentto re-accede to the conventions governing them."64. Chad became independent on 11 August 1960,

and was admitted to the United Nations on 20 Sep-tember 1960. No agreement with France on the devolu-tion of treaty obligations has been registered withthe Secretariat.

65. By letters of 20 March and 14 December 1961the Secretary-General inquired whether Chad con-sidered itself bound by the same treaties as arereferred to above in the case of Cameroon and theCentral African Republic (see the list in para. 55above). No reply has yet been received. Chad, how-ever, on 10 November 1960 recognized that it con-tinues to be bound by eleven conventions of the Inter-national Labour Organisation, and these actions havebeen registered with the United Nations Secretariat.

66. The Republic of the Congo (Brazzaville) be-came independent on 15 August 1960, and was ad-mitted to the United Nations on 20 September 1960.No agreement with France on the devolution of treatyobligations has been registered with the Secretariat.

67. By communications of 20 March and 1 Novem-ber 1961 the Secretary-General inquired whether theRepublic considered itself bound by the same treatiesas were listed in the letters to Cameroon, the CentralAfrican Republic and Chad (see para. 55 above). On15 May 1962 the Congo (Brazzaville) deposited withthe Secretary-General an instrument of accession tothe 1949 Convention on Road Traffic, which wasincluded in the list in the Secretary-General's letters.Subsequently, however, by a note verbale dated 11 Oc-tober 1962, received on 15 October 1962, the Min-istry for Foreign Affairs declared:

(Translation) "In accordance with the usages ofinternational law and because of the circumstancesin which the Republic of the Congo attained inter-national sovereignty, it considers itself a party tothe treaties and conventions signed before its inde-pendence by the French Republic and extended bythe latter to its former overseas territories, in sofar as those treaties and conventions have not been


expressly denounced by the Republic of the Congoor tacitly rescinded by a text replacing them."

The Republic has also recognized that it continues tobe bound by twelve conventions of the InternationalLabour Organisation, by the Warsaw Convention of12 October 1929 for the Unification of Certain Rulesrelating to International Carriage by Air, and by TheHague Protocol of 28 September 1955 modifying thatConvention.

68. The Republic of the Congo (Leopoldville) be-came independent on 30 June 1960, and was admittedto the United Nations on 20 September 1960. Noagreement with Belgium on the devolution of treatyobligations has been registered with the Secretariat.

69. On 6 March 1961 the Secretary-General receiveda declaration signed by the President of the Republicon 18 February 1961, whereby the Congo declareditself the successor of the Belgian Congo with respectto the 1949 Convention on Road Traffic, and recog-nized that that Convention and its annexes continuedto be in force in its territory.

70. By a letter of 12 December 1961 the Secretary-General requested the Congo (Leopoldville) to con-firm that it considered itself bound by the followingtreaties, which according to United Nations archiveswere applicable in its territory:


ii. 1948 Convention on Genocide;iii. 1912 Opium Convention;iv. 1925. Opium Convention, as amended by the

1946 Protocol;v. 1931 Narcotics Convention, as amended by the

1946 Protocol;vi. 1948 Protocol on Drugs;

vii. 1953 Opium Protocol;23


ix. 1910 Agreement on Obscene Publications, asamended by the 1949 Protocol;

x. 1952 Convention on Importation of Commer-cial Samples;

xi. 1954 Convention on Customs Facilities forTouring;

xii. 1954 Additional Protocol on Tourist PublicityDocuments;

xiii. 1954 Customs Convention on Private RoadVehicles;

xiv. 1950 Agreement on Importation of Educa-tional, Scientific and Cultural Materials.

71. By a letter dated 29 December 1961, receivedon 16 January 1962, the Minister for Foreign Affairsreplied that

{Translation) " . . . I n general the Republic of theCongo considers itself the successor, as an inde-pendent and sovereign State of the Belgian Congowith regard to international conventions, which itacknowledges to remain in force in its territory."

He added that his Ministry was studying the questionwhether each of the treaties in question had beenratified for or extended to the Belgian Congo.

23 At the date of independence this Protocol had been accededto by Belgium and had been extended to the Congo, but was notyet in force.

72. By a note verbale dated 16 April 1962, receivedon 3 May 1962, the Ministry for Foreign Affairs in-formed the Secretary-General that the Congo Gov-ernment considered itself bound by the 1950 Agree-ment on Importation of Educational, Scientific andCultural Materials (No. xiv in the above list). By aletter of 23 May 1962 the Minister for Foreign Affairsinformed the Secretary-General that his Governmentconsidered itself bound by the treaties numbered ii, iii,iv, v, vii, viii, ix and x in the above list.

73. By a letter of 16 July 1962, the Secretary-General sent to the Congo copies of the instrumentsby which Belgium had extended to its territory cer-tain treaties on which the Republic had not yet indi-cated its position. The letter also stated:

(Translation) "Lastly, with regard to the Conven-tion on the Privileges and Immunities of the UnitedNations, I have the honour to inform you that theBelgian Government deposited the instrument ofaccession to that Convention with the Secretary-General on 25 September 1948. In the absence ofa territorial application clause, this Convention isconsidered to apply to territories represented inter-nationally by the acceding States."74. In a reply dated 7 May 1962, received on

13 August 1962, the Minister for Foreign Affairsstated that his Government considered itself bound bythe 1948 Protocol on Drugs. The letter also stated:

{Translation) "The Government of the Congocannot consider itself bound by the Convention onthe Privileges and Immunities of the UnitedNations. . . Although this Convention has beenratified by Belgium, there is no provision in thelaw of the Congo under which it could be: appliedto this country. In any event, it does not appear tohave been applied to the Congo before the latterattained independence. It does not seem to containany provision for its automatic entry into force inthe dependent territories of acceding States .,.."

The letter informed the Secretary-General that re-search was continuing to ascertain whether the threeremaining treaties about which the Republic had notyet indicated its position (i.e., those numbered xi, xiiand xiii in the foregoing list) had ever been publishedby Belgium in the legislation of the Congo. The Re-public has recognized that it continues to be boundby sixteen ILO Conventions and by the four GenevaConventions of 1949 for the protection of war victims ;its declarations to that effect have been registeredwith the Secretariat by the respective depositaries.

75. Cyprus became independent on 16 August 1960and was admitted to the United Nations on 20 Sep-tember 1960. The agreement between Cyprus and theUnited Kingdom on the devolution of treaty rightsand obligations is reproduced in the annex, as No. 9.

76. By letters of 28 February and 6 December 1961the Secretary-General, referring to the agreement ondevolution, stated that it was his understanding thatCyprus considered itself bound by the treaties whoseapplication had been extended to it by the UnitedKingdom, and requested confirmation of that under-standing. The list of treaties given in the letters wasas follows:


ii. 1947 Convention on the Privileges and Im-munities of the Specialized Agencies;


iii. 1951 Convention on Refugees;iv. 1912 Opium Convention;v. 1925 Opium Convention, as amended by

the 1946 Protocol;vi. 1931 Convention on Narcotic Drugs, as

amended by the 1946 Protocol;vii. 1948 Protocol on Drugs;viii. 1921 Convention on Traffic in Women and

Children;ix. 1904 Agreement on the White Slave Traffic,

as amended by the 1949 Protocol;x. 1910 Convention on the White Slave Traffic,

as amended by the 1949 Protocol;xi. 1923 Convention on Obscene Publications,

as amended by the 1947 Protocol;xii. 1910 Agreement on Obscene Publications,

as amended by the 1949 Protocol;xiii. 1952 Convention on Importation of Com-

mercial Samples;xiv. 1954 Convention on Customs Facilities for

Touring;xv. 1954 Additional Protocol on Importation of

Tourist Publicity Documents;xvi. 1954 Customs Convention on Private Road

Vehicles;xvii. 1956 Customs Convention on Containers;xviii. 1956 Customs Convention on Commercial

Road Vehicles;xix. 1956 Customs Convention on Aircraft and

Pleasure Boats;xx. 1949 Convention on Road Traffic;

xxi. 1950 Agreement on Importation of Educa-tional, Scientific and Cultural Materials;

xxii. 1957 Convention on the Nationality of Mar-ried Women;

xxiii. 1926 Slavery Convention, as amended bythe 1953 Protocol;

xxiv. 1956 Supplementary Convention on Slavery;xxv. 1958 Convention on the Territorial Sea and

Contiguous Zone ;24

xxvi. 1958 Convention on the High Seas;24

xxvii. 1958 Convention on Fishing.24

77. By a letter dated 9 May 1962, received on11 May 1962, the Permanent Mission of Cyprus, oninstructions from its Government, informed the Sec-retary-General that Cyprus considered itself bound bythe 1956 Supplementary Convention on Slavery (No.xxiv in the foregoing list), and by a letter dated29 June 1962, received on 6 July 1962, that Cyprusconsidered itself bound by the 1949 Convention onRoad Traffic (No. xx). The Ministry of ForeignAffairs is still studying the application to Cyprus ofthe other treaties in the list. In addition, declarationsby which Cyprus recognized that it continues to bebound by eleven ILO Conventions have been regis-tered with the Secretariat.

78. Dahomey became independent on 1 August 1960,and was admitted to the United Nations on 20 Sep-tember 1960. No agreement with France on the

24 At the date of independence this Convention had beenratified by the United Kingdom but was not yet in force.

devolution of treaty obligations has been registeredwith the Secretariat.

79. By a letter of 20 March 1961 the Secretary-General inquired whether the Republic considered itselfbound by the same treaties as were listed in the lettersto Cameroon, the Central African Republic, Chad andthe Congo (Brazzaville) (see para. 55 above). Bynotes verbales dated 30 November 1961 and 14 Feb-ruary 1962, received on 5 December 1961 and 4 April1962, Dahomey declared that it considered itself boundby nine of those treaties. Dahomey has not yet indi-cated its position in respect of the 1946 Conventionon the Privileges and Immunities of the UnitedNations, the 1912 Opium Convention, the 1953 Con-vention on the Political Rights of Women and the1953 Opium Protocol. Declarations by Dahomey recog-nizing that it continues to be bound by twelve ILOConventions, the four Geneva Conventions of 1949for the protection of war victims, the Warsaw Con-vention of 1929 on International Carriage by Air andThe Hague Protocol of 1955 modifying that Conven-tion have been registered with the Secretariat by therespective depositaries.

80. Gabon became independent on 17 August 1960,and was admitted to the United Nations on 20 Sep-tember 1960. No agreement with France on the devolu-tion of treaty obligations has been registered with theSecretariat.

81. By letters of 20 March and 14 December 1961and 18 October 1962 the Secretary-General inquiredwhether Gabon considered itself bound by the sametreaties as were listed in the letters to Cameroon,the Central African Republic, etc. No reply has yetbeen received. Gabon, however, on 14 October 1960recognized that it continued to be bound by twelveconventions of the International Labour Organisation.

82. The Ivory Coast became independent on 7 Au-gust 1960, and was admitted to the United Nationson 20 September 1960. No agreement with Franceon the devolution of treaty obligations has been regis-tered with the Secretariat.

83. By a letter dated 20 March 1961, the Secretary-General inquired whether the Ivory Coast considereditself bound by the same treaties as were listed in theletters to Cameroon, the Central African Republic,etc. (see para. 55 above). By letters of 10 May,22 June and 7 December 1961 the President of theRepublic, Minister for Foreign Affairs, informed theSecretary-General that his Government considered itselfbound by all the treaties listed (including the 1953Opium Protocol, which was not yet in force), withthe exception of the 1953 Convention on the PoliticalRights of Women, which had never been applied byFrance to the Ivory Coast.

84. Poland, acting as depositary, has informed theSecretary-General that the Ivory Coast has recognizedthat it is bound by the Warsaw Convention of 12 Oc-tober 1929 for the Unification of Certain Rules relat-ing to International Carriage by Air, by the Sup-plementary Protocol to the Convention, and by TheHague Protocol of 28 September 1955 modifying theWarsaw Convention. Declarations by the Ivory Coast,recognizing that it continues to be bound by thirteenILO Conventions and by the four Geneva Conven-tions of 1949 for the protection of war victims, havealso been registered by the Secretariat.


85. Madagascar became independent on 3 August1960, and was admitted to the United Nations on20 September 1960. No agreement with France onthe devolution of treaty obligations has been registeredwith the Secretariat.

86. By a letter of 20 March 1961 the Secretary-General inquired whether Madagascar considered itselfbound by the same treaties as were listed in the letterto Cameroon, the Central African Republic, etc. Bya note dated 27 May 1961, the Ministry for ForeignAffairs replied:

{Translation) "This, however, is a point of inter-national law on which the highest legal authoritiesto whom it has been submitted have been unableto give a conclusive opinion. Consequently it seemshard to formulate any principle, and each particularcase should be examined with care."

87. By a further letter dated 6 February 1962, theForeign Ministry stated:

{Translation) ''After examining the question, theMalagasy Government considers that it ought inprinciple to acknowledge itself bound by the Agree-ments and Conventions entered into in its name byFrance before the Malagasy Republic became inde-pendent.

"Although this principle has been accepted, itnevertheless seems essential that in the case of eachConvention a formal notification should be sent toyou by which the Malagasy Government woulddeclare itself bound . . . "

88. Thus far, Madagascar, by notifications dated15 May 1962 and 22 June 1962, signed by the Min-ister for Foreign Affairs, has declared that it con-siders itself bound by the 1946 Convention on thePrivileges and Immunities of the United Nations, andby the 1949 Convention on Road Traffic. By a letterdated 23 May 1962 the Foreign Minister informedthe Secretary-General:

{Translation) "The other Conventions of whichthe application has been extended to Madagascarand which you have kindly listed for me are atpresent being examined by the departments con-cerned. Notifications declaring that the MalagasyGovernment is bound by them will reach you fromtime to time, together with any reservations it maybe found necessary to make in regard to them."

89. Poland, acting as depositary, has registeredwith the Secretariat a declaration by which Madagascarrecognized that it continued to be bound by the War-saw Convention of 12 October 1929 for the Unifica-tion of Certain Rules relating to International Carriageby Air, and by The Hague Protocol of 28 September1955 modifying that Convention. The Director-Generalof the ILO has also registered declarations by whichMadagascar recognized that it continued to be boundby twelve ILO Conventions.

90. Mali became independent on 22 September 1960,and was admitted to the United Nations on 28 Sep-tember 1960. No agreement on succession to treatyrights and obligations has been registered with theSecretariat.

91. By letters of 20 March and 14 December 1961and 18 October 1962 the Secretary-General inquiredwhether Mali considered itself bound by the sametreaties as were listed in the letters to Cameroon,the Central African Republic etc. (see para. 55 above).

By a notification received on 19 November 1962, Malirecognized that it continued to be bound by the 1949Convention on Road Traffic, but has not yet repliedabout the other treaties. Mali has, however, declareditself bound through succession to France by thirteenConventions of the International Labour Organisation.

92. Niger became independent on 3 August 1960and was admitted to the United Nations on 20 Sep-tember 1960. No agreement with France on the devolu-tion of treaty obligations has been registered with theSecretariat.

93. By a letter of 20 March 1961 the Secretary-General inquired whether Niger considered itself boundby the same treaties as were listed in the letters toCameroon, the Central African Republic etc.. By aletter dated 18 August 1961, received on 25 August1961, the Foreign Affairs Department replied thatNiger considered itself bound by all of the treatieslisted, except for the 1953 Convention on the Politi-cal Rights of Women and the 1953 Opium Protocol,with regard to which a further inquiry has beenmade. Niger has also recognized that it continues tobe bound by the Warsaw Convention of 12 October1929 for the Unification of Certain Rules relating toInternational Carriage by Air, and by The HagueProtocol of 28 September 1955 modifying that Con-vention, and by twelve Conventions of the Interna-tional Labour Organisation.

94. Nigeria became independent on 20 August 1960,and was admitted to the United Nations on 7 Oc-tober 1960. It had on 1 October 1960 an exchangeof letters with the United Kingdom on succession tointernational rights and obligations (reproduced in theannex, No. 10).

95. By a letter dated 1 October 1960, received on19 October 1960, the Prime Minister of Nigeriainformed the Secretary-General that his Governmentin its capacity as a contracting party to the GeneralAgreement on Tariffs and Trade, acknowledged itselfbound by forty-two international instruments (proto-cols, proces-verbaux, declarations, notifications etc.)relating to GATT. Nigeria has also recognized itselfbound by fifteen ILO Conventions and by the fourGeneva Conventions of 1949 for the protection of warvictims.

96. By a letter of 28 February 1961, the Secretary-General, referring to the above-mentioned exchangeof letters of 1 October 1960, stated that it was hisunderstanding that Nigeria considered itself bound bythe following treaties which had been made applicableto it by the United Kingdom, and requested con-firmation :



iii. 1912 Opium Convention;iv. 1925 Opium Convention, as amended by the

1946 Protocol;v. 1931 Convention on Narcotic Drugs, as

amended by the 1946 Protocol;vi. 1948 Protocol on Drugs;

vii. 1904 Agreement on the White Slave Traffic,as amended by the 1949 Protocol;



IX.

X .

XI.

Xll .

xm.

XIV.

XV.

XVI.

XV11.

xviii.

XIX.

XX.

1910 Agreement on Obscene Publications, asamended by the 1949 Protocol;1952 Convention on Importation of Com-mercial Samples;1954 Convention on Customs Facilities forTouring;1954 Additional Protocol on Importation ofTourist Publicity Documents;1954 Customs Convention on Private RoadVehicles;1948 Convention on the Inter-GovernmentalMaritime Consultative Organization;1950 Agreement on Importation of Educa-tional, Scientific and Cultural Materials;1926 Slavery Convention, as amended by the1953 Protocol;1956 Supplementary Convention on Slavery;1958 Convention on the Territorial Sea andContiguous Zone ;25

1958 Convention on the High Seas;25

1958 Convention on Fishing.25

97. By a letter dated 23 June 1961, received on26 June 1961, the Nigerian Ministry of Foreign Affairsand Commonwealth Relations confirmed that the Fed-eration of Nigeria considered itself bound by all ofthe treaties listed.

98. No. xiv on the above list, the Convention onthe Inter-Governmental Maritime Consultative Organi-zation, had been included in the Secretary-General'sletter through a clerical error. The Secretary-Generalof IMCO had already advised the Nigerian Govern-ment that if it wished to become a full member ofthe Organization it should follow the procedure laiddown in the Convention (i.e., signature, signature sub-ject to acceptance followed by acceptance, or accept-ance), and this action had been approved by theIMCO Council. Accordingly, the Secretary-General ofthe United Nations, in a letter of 18 July 1961 toNigeria, quoted an IMCO document26 which read asfollows:

"In accordance with the provisions of article 9of the Convention, the Federation of Nigeria wasadmitted as an associate member of IMCO on19 January 1960. Since that date Nigeria has attainedindependence and has been admitted as a Memberof the United Nations. The Secretary-General, indrawing attention to the fact that the Conventioncontains no provision whereby an associate memberautomatically becomes a full member, advised Nigeriaof the procedure to be followed, as set out in articles6 find 57 of the Convention, should it wish to becomea full member of the Organization. The Secretary-General's action was approved by the Council at itsfourth session."

99. Consequently Nigeria became a full member ofIMCO by the deposit of an instrument of acceptanceon 15 March 1962, and not by succession.

100. Senegal became independent on 20 August1960, and was admitted to the United Nations on20 September 1960. No agreement on succession totreaty rights and obligations has been registered withthe Secretariat.

2 5 At the date of independence this Convention had beenratified by the United Kingdom but was not yet in force.

2 6 Document A.II /5/Rev. l .

101. By letters of 20 March and 14 December 1961,the Secretary-General inquired whether Senegal con-sidered itself bound by the same treaties as werelisted in the letters to Cameroon, the Central AfricanRepublic etc. In a reply dated 30 June 1962, receivedon 13 July 1962, the Minister for Foreign Affairs ofSenegal confirmed that his Government considereditself bound by the 1949 Convention on Road Traffic.Senegal has not yet indicated its position on the othertreaties listed. It has, however, confirmed that it isbound by thirteen Conventions of the InternationalLabour Organisation.

102. Somalia became independent on 1 July 1960and was admitted to the United Nations on 20 Sep-tember 1960. An exchange of letters with Italy or withthe United Kingdom on succession to treaty rightsand obligations has not yet been registered with theSecretariat, but has recently come to its knowledge,and is reproduced in the annex, No. 11.

103. By a letter of 6 December 1961 the Secretary-General inquired as to the attitude of Somalia withregard to succession to the rights and obligations ofcertain treaties. The letter listed first the treaties whichhad been made applicable both by Italy to the formerTrust Territory of Somaliland and by the UnitedKingdom to former British Somaliland. They were thefollowing:

i. 1946 Convention on the Privileges and Immu-nities of the United Nations;

ii. 1912 Opium Convention;iii. 1925 Opium Convention, as amended by the

1946 Protocol;iv. 1931 Convention on Narcotic Drugs, as amended

by the 1946 Protocol;v. 1948 Protocol on Drugs;

1923 Convention on Obscene Publications, asamended by the 1947 Protocol;1910 Agreement on Obscene Publications, asamended by the 1949 Protocol;

viii. 1926 Slavery Convention, as amended by the1953 Protocol;

ix. 1956 Supplementary Convention on Slavery.The letter stated:

"Therefore, if your Government recognizes itselfbound by the instruments listed above, I would ap-preciate it if you would address a notification to thiseffect to the Secretary-General, so that he couldinform all interested States accordingly. Upon receiptof such notification, the Republic of Somalia will beconsidered as having become a party to these instru-ments in itsown name as from the date of inde-pendence.

"The snme procedure could be applied in respectof those instruments which either were made ap-plicable only to the former Trust Territory of Somali-land by the Government of Italy or only to the formerBritish Somaliland by the Government of the UnitedKingdom, provided that your Government wouldrecognize that their application now extends to theentire territory of the Republic of Somalia . . ."

104. The letter listed the treaties which had appliedonly to the Trust Territory. They were the following:

i. 1921 Convention on Traffic in Women andChildren, as amended by the 1947 Protocol;

ii. 1950 Convention on Declaration of Death ofMissing Persons;

VI.

vu.


iii. 1957 Protocol for extending the validity ofthe Convention on Declaration of Death ofMissing Persons.

105. The letter further listed the following treatieswhich had applied only to British Somaliland:

i. 1947 Convention on the Privileges and Im-munities of the Specialized Agencies;

ii. 1951 Convention on the Status of Refugees;iii. 1904 Agreement on the White Slave Traffic,

as amended by the 1949 Protocol;iv. 1952 Convention on Importation of Commer-

cial Samples;v. 1954 Convention on Customs Facilities for

Touring ;vi. 1954 Additional Protocol on Importation of

Tourist Publicity Documents;vii. 1954 Customs Convention on Private Road

Vehicles;viii. 1956 Customs Convention on Commercial Road

Vehicles ;ix. 1956 Customs Convention on Aircraft and

Pleasure Boats;x. 1950 Agreement on Importation of Educational,

Scientific and Cultural Materials;xi. 1957 Convention on the Nationality of Married

Women.106. No reply has been received to this letter. Somalia

has, however, recognized that it continues to be boundby certain conventions of the International LabourOrganisation. With respect to two such conventionswhich Italy had declared applicable to the Trust Terri-tory and the United Kingdom to British Somaliland,Somalia, according to a statement registered by theDirector-General of the ILO with the United NationsSecretariat, recognized that the conventions "will con-tinue to be in force in the Somali Republic as from18 November 1960". With respect to seven such con-ventions which had applied in the Trust Territory butnot in British Somaliland, Somalia recognized that theconventions "will continue to be in force for the part ofthe territory of the Somali Republic which was formerlythe Trust Territory of Somaliland as from 18 November1960". With respect to six such conventions which hadapplied in British Somaliland but not in the TrustTerritory, Somalia recognized that the conventions"will continue to be in force for the part of the territoryof the Somali Republic which was formerly BritishSomaliland as from 18 November 1960".

107. Togo became independent on 20 April 1960,and was admitted to the United Nations on 20 Sep-tember 1960. No agreement with France on the devolu-tion of treaty obligations has been registered with theSecretariat.

108. By letters dated 20 March and 14 December1961, the Secretary-General inquired whether Togoconsidered itself bound by the same treaties as werelisted in the letters to Cameroon, the Central AfricanRepublic etc. (see para. 55 above). By a letter dated23 February 1962 the Minister for Foreign Affairsinformed the Secretary-General that the followingtreaties had been extended to Togo before its inde-pendence by France and remain applicable:

i. 1946 Convention on the Privileges and Immu-nities of the United Nations;

ii. 1951 Convention on the Status of Refugees;

iii. 1925 Opium Convention, as amended by the1946 Protocol;


v. 1948 Protocol on Drugs;vi. 1949 Convention on Road Traffic;

vii. 1926 Slavery Convention.109. Togo also stated that it did not consider itself

bound by the 1953 Convention on the Political Rightsof Women. It has not yet expressly stated its attitudeon the other treaties listed in the Secretary-General'sletters. Declarations by which Togo recognized that itcontinues to be bound by twelve ILO Conventions andby the four Geneva Conventions of 1949 for the pro-tection of war victims have been registered with theSecretariat.

110. Upper Volta became independent on 5 August1960 and was admitted to the United Nations on20 September 1960. No agreement with France on thedevolution of treaty obligations has been registeredwith the Secretariat.

111. By letters of 20 March and 14 December 1961,the Secretary-General inquired whether Upper Voltaconsidered itself bound by the same treaties as werelisted in the letters to Cameroon, the Central AfricanRepublic etc. By a letter dated 19 April 1962, receivedon 27 April 1962, the Minister for Foreign Affairsstated:

(Translation) "The Upper Volta, as a sovereign in-dependent State, does not acknowledge itself boundby the Agreements signed by France before theRepublic of Upper Volta became independent."

112. This position of principle seems, however, toadmit of some exceptions. The Government of Switzer-land, as depositary of the four 1949 Geneva Conventionsfor the protection of war victims, has transmitted tothe Secretary-General a copy of a declaration signedby the Minister for Foreign Affairs of Upper Volta,stating that:

(Translation) "The four 1949 Geneva Conventionsfor the protection of war victims apply by law to theterritory of the Republic of the Upper Volta in virtueof their ratification by France on 28 June 1951."

Upper Volta has also declared that it continues to bebound by thirteen ILO Conventions concluded byFrance.

113. Mauritania became independent on 28 Novem-ber 1960, and was admitted to the United Nations on27 October 1961. No agreement with France on suc-cession to treaty obligations has been registered withthe Secretariat.

114. By letters of 16 November 1961 and 19 October1962 the Secretary-General inquired whether Mauritaniarecognized that it continued to be bound by the sametreaties as were listed in the letters to Cameroon, theCentral African Republic etc. No reply has yet beenreceived. Mauritania has, however, declared that it con-tinues to be bound by thirteen Conventions of theInternational Labour Organisation which were ex-tended to its territory by France, and by the fourGeneva Conventions of 1949 for the protection of warvictims.

115. Sierra Leone became independent on 27 April1961 and was admitted to the United Nations on 27September 1961. It had on 5 May 1961 an exchangeof letters with the United Kingdom on succession to


international rights and obligations which is reproducedin the annex, No. 12.

116. By a letter dated 16 August 1961, receivedon 25 August 1961, the Minister of External Affairsof Sierra Leone informed the Secretary-General thathis Government, in its capacity as a contracting partyto the General Agreement on Tariffs and Trade,acknowledged itself bound by forty-two internationalinstruments (protocols, proces-verbaux, declarations,notifications etc.) relating to GATT.

117. By a letter of 25 January 1962 the Secretary-General, referring to the above-mentioned exchange ofletters of 5 May 1961, stated that it was his understand-ing that Sierra Leone considered itself bound by thefollowing treaties which had been made applicable to itby the United Kingdom, and requested confirmation:



iii. 1912 Opium Convention;iv. 1925 Opium Convention, as amended by the

1946 Protocol;v. 1931 Convention on Narcotic Drugs, as

amended by the 1946 Protocol;vi. 1948 Protocol on Drugs;vii. 1921 Convention on Traffic in Women and

Children;viii. 1904 Agreement on the White Slave Traffic,

as amended by the 1949 Protocol;ix. 1910 Convention on the White Slave Traffic,

as amended by the 1949 Protocol;x. 1923 Convention on Obscene Publications, as

amended by the 1947 Protocol;xi. 1910 Agreement on Obscene Publications, as

amended by the 1949 Protocol;xii. 1952 Convention on Importation of Com-

mercial Samples;xiii. 1954 Convention on Customs Facilities for

Touring;xiv. 1954 Additional Protocol on Importation of

Tourist Publicity Documents;xv. 1954 Customs Convention on Private Road

Vehicles;xvi. 1956 Customs Convention on Containers;xvii. 1956 Customs Convention on Commercial

Road Vehicles;xviii. 1956 Customs Convention on Aircraft and

Pleasure Boats;xix. 1949 Convention on Road Traffic;xx. 1950 Agreement on Importation of Educa-

tional, Scientific and Cultural Materials;xxi. 1957 Convention on the Nationality of Married

Women;xxii. 1926 Slavery Convention, as amended by the

1953 Protocol;xxiii. 1956 Supplementary Convention on Slavery;xxiv. 1958 Convention on the Territorial Sea and

Contiguous Zone;27

xxv. 1958 Convention on the High Seas;27

xxvi. 1958 Convention on Fishing.2727 At the date of independence this Convention had been

ratified by the United Kingdom but was not yet in force.

118. By a note verbale dated 28 February 1962, re-ceived on 13 March 1962, the Ministry of ExternalAffairs confirmed that Sierra Leone was bound by allof the treaties listed. Sierra Leone has also declaredthat it continues to be bound by sixteen ILO Con-ventions.

119. Syria at the end of September 1961 resumedits independence, and as from 13 October 1961 it againexercised its rights of membership in the UnitedNations.

120. The President of the Council of Ministers on22 October 1961 cabled the Director-General of theWorld Health Organization as follows:

"I have the honour to inform you that Syria hasbeen always a member of WHO and since 1958has continued so to be jointly with Egypt under the

. name of the United Arab Republic. This union havingbeen dissolved on 28 September last the Syrian ArabRepublic resumes its seat at WHO. I take this oc-casion to assure you that the Syrian Arab Republicremains bound mutatis mutandis by all the agree-ments, arrangements and obligations which werebinding between WHO and the United Arab Re-public at the time of the constitution of the SyrianArab Republic. I shall be glad if you will kindlyacknowledge receipt of this cable and communicatea copy of it to all WHO member States."

121. Similar cables were sent to the Director-General of UNESCO on 25 October 1961, and to theSecretary-General of IMCO on 2 November 1961;they were presumably sent to other specialized agenciesas well. The Secretary-General of IMCO transmittedthe cable to the Secretary-General of the UnitedNations as depositary of the IMCO Convention. Syriaresumed its membership in WHO and UNESCO, ofwhich it had been a member before 1958, in the sameway that it resumed its membership in the UnitedNations.

122. Before the formation of the United ArabRepublic in late February 1958, Syria had not com-pleted the formal steps to become a member of IMCO.The Syrian Foreign Ministry, by a note verbale re-ceived on 12 February 1958, had informed the Sec-retary-General of the United Nations that Syria hadadopted a law authorizing acceptance of the IMCOConvention, but no instrument of acceptance was everdeposited for Syria; Egypt, however, deposited aninstrument of acceptance in 1954, and the United ArabRepublic confirmed its acceptance of the Conventionon 17 March 1958.

123. The Secretary-General, by a letter dated14 November 1961, informed Syria that to become amember of IMCO it would be necessary to becomeparty to the Convention by the procedure providedtherein (signature, signature subject to acceptancefollowed by acceptance, or acceptance).

124. In a letter of 11 December 1961 the Secretary-General stated that it was his understanding, of whichconfirmation was requested, that Syria, having resumedits status as an independent State and as a Memberof the United Nations continued to be bound bysignatures, ratifications and accessions done on behalfof Syria before the formation of the United ArabRepublic. He also stated that it appeared from variousstatements made on behalf of Syria that the SyrianGovernment recognized various actions taken in re-spect of United Nations treaties by the United ArabRepublic as binding upon Syria and inquired as to the


position of the Government in this regard. The actionstaken by the United Arab Republic during the periodbetween its formation and Syria's resumption of inde-pendence were the following:

i. Accession to the 1950 Convention on the Trafficin Persons;

ii. Acceptance of amendments to articles 24 and 25of the Constitution of the World Health Organi-zation ;

iii. Declaration that the 1954 Convention on Cus-toms Facilities for Touring, the 1954 AdditionalProtocol on Importation of Tourist PublicityDocuments, and the 1954 Customs Conventionon Private Road Vehicles were applicable to theSyrian Province;

iv. Accession to the 1956 Supplementary Conventionon Slavery;

v. Accession to the 1958 Convention on ForeignArbitral Awards.

In the "Status of Multilateral Conventions" (ST /LEG/3/Rev.l) issued on 31 December 1961, theSecretary-General indicated that Syria was bound byall treaties concluded by Syria before the formationof the United Arab Republic, and by all treaty actionstaken by the Republic, during the period of union,in respect of the Syrian Province; the situation wasexplained in a footnote (p. 1-3).

125. The Permanent Representative of Syria, by aletter dated 19 July 1962, transmitted to the Secretary-General an unofficial translation of a legislative decreeof 13 June 1962 (reproduced in the annex, No. 13)providing for the continuance in force of internationalobligations undertaken by the United Arab Republicduring the period of union. The Permanent Repre-sentative stated:

(Translation) "It follows from the wording of ar-ticle 2 of this legislative decree that the obligationsassumed by the Syrian Arab Republic under multi-lateral agreements and conventions during the periodof the Union with Egypt remain in force in Syria.

"The period covered by the Union between Syriaand Egypt was between 22 February 1958 and27 September 1961."

126. Tanganyika became independent on 9 Decem-ber 1961, and was admitted to the United Nations on14 December 1961.

127. By a letter dated 9 December 1961 the PrimeMinister of Tanganyika made the following declarationto the Secretary-General:

"The Government of Tanganyika is mindful of thedesirability of maintaining, to the fullest extent com-patible with the emergence into full independenceof the State of Tanganyika, legal continuity betweenTanganyika and the several States with which,through the action of the United Kingdom, the ter-titory of Tanganyika was prior to independence intreaty relations. Accordingly, the Government ofTanganyika takes the present opportunity of makingthe following declaration:

"As regards bilateral treaties validly concludedby the United Kingdom on behalf of the territoryof Tanganyika, or validly applied or extended bythe former to the territory of the latter, the Gov-ernment of Tanganyika is willing to continue toapply within its territory, on a basis of reciprocity,the terms of all such treaties for a period of two

years from the date of independence (i.e., until De-cember 8, 1963) unless abrogated or modified earlierby mutual consent. At the expiry of that period, theGovernment of Tanganyika will regard such of thesetreaties which could not by the application of therules of customary international law [be regarded]as otherwise surviving, as having terminated.

"It is the earnest hope of the Government ofTanganyika that during the aforementioned periodof two years, the normal processes of diplomaticnegotiations will enable it to reach satisfactory ac-cord with the States concerned upon the possibilityof the continuance or modification of such treaties.

"The Government of Tanganyika is conscious thatthe above declaration applicable to bilateral treatiescannot with equal facility be applied to multilateraltreaties. As regards these, therefore, the Govern-ment of Tanganyika proposes to review each ofthem individually and to indicate to the depositaryin each case what steps it wishes to take in rela-tion to each such instrument—whether by way ofconfirmation of termination, confirmation of succes-sion or accession. During such interim period ofreview, any party to a multilateral treaty whichhas prior to independence been applied or extendedto Tanganyika may, on a basis of reciprocity, relyas against Tanganyika on the terms of such treaty.

"It would be appreciated if Your Excellencywould arrange for the text of this declaration to becirculated to all Members of the United Nations."128. The Secretary General circulated the declara-

tion as requested. The Permanent Representative ofthe United Kingdom replied as follows in a letterdated 2 July 1962:

"I have the honour by direction of Her Majesty'sGovernment in the United Kingdom of Great Britainand Northern Ireland, to refer to the Note datedthe 9th of December 1961, addressed to Your Ex-cellency by the then Prime Minister of Tanganyika,setting out his Government's position in relation tointernational instruments concluded by the UnitedKingdom, whose provisions applied to Tanganyikaprior to independence.

"Her Majesty's Government in the United King-dom hereby declare that, upon Tanganyika becom-ing an independent Sovereign on the 9th of De-cember, 1961, they ceased to have the obligationsor rights, which they formerly had, as the authorityresponsible for the administration of Tanganyika,as a result of the application of such internationalinstruments to Tanganyika.

"I am to request that this statement should becirculated to all Members of the United Nations."129. By a letter dated 9 January 1962, received on

18 January 1962, the Prime Minister of Tanganyikainformed the Secretary-General that his Government,in its capacity as a contracting party to the GeneralAgreement on Tariffs and Trade, declared that therights and obligations of the United Kingdom in re-spect to Tanganyika, arising out of forty-two interna-tional instruments relating to GATT, were to be con-sidered as rights and obligations of Tanganyika asfrom the date of independence.

130. By a letter dated 24 September 1962 the PrimeMinister informed the Secretary-General that Tan-ganyika considers itself bound by the 1946 Conven-tion on the Privileges and Immunities of the United


Nations, and by the 1947 Convention on the Privilegesand Immunities of the Specialized Agencies.

131. Algeria, Burundi, Jamaica, Rwanda, Trinidadand Tobago, Uganda and Western Samoa all becameindependent in 1962, and all of them except for West-ern Samoa, which has not applied for admission, havebeen admitted to the United Nations. Some of thesecountries probably have concluded agreements withtheir predecessors on succession to treaty rights andobligations, but no such agreements have yet beenregistered with the Secretariat. The Secretary-Generalhas already sent letters to some of the countries in-quiring whether they recognize themselves as boundby treaties applied to their territories by their predeces-sors, and other such letters are now (in December1962) being prepared. No replies have yet beenreceived.

Chapter III. General summary

A. NOTIFICATIONS CONCERNING SUCCESSION MADE BYNEW STATES OF THEIR OWN ACCORD

132. In some cases new States, after the attain-ment of their independence, declare of their own ac-cord to the Secretary-General that they consider them-selves bound by treaties applied or extended to theirterritories by their predecessors. Apart from thesecases, there are others in which States, as a regularpart of the process of joining an international institu-tion, declare their succession to particular treaty obliga-tions. In the case of the General Agreement on Tariffsand Trade, as each new State is admitted to thestatus of a contracting party, it notifies the Secretary-General that it considers itself bound by the GATTProtocols and other international instruments of whichthe Secretary-General is the depositary (and alsonotifies the Executive Secretary of GATT that itconsiders itself bound by the instruments of whichhe is the depositary). It also appears, from the state-ments which the Director-General of the InternationalLabour Office registers with the Secretariat, that partof the regular procedure of admission of new Statesto the ILO is a declaration by them to the Director-General that they recognize that they continue to bebound by the obligations arising from the provisionsof the international labour conventions which theirpredecessors have made applicable to their territories.

B. LETTERS FROM THE SECRETARY-GENERALINQUIRING ABOUT SUCCESSION

133. A letter is addressed to each new State aboutsuccession to United Nations treaties. If an agreementbetween the new State and its predecessor providingfor assumption of treaty rights and obligations by thenew State has been registered with the Secretariat orhas otherwise come to the knowledge of the Secretary-General, the letter refers to that agreement and con-tinues on the following lines:

"It is the understanding of the Secretary-General,based on the provisions of the aforementioned agree-ment, that your Government recognizes itself bound,as from [the date of independence], by all interna-tional instruments which had been made applicableto [the new State] by [its predecessor] and in re-spect of which the Secretary-General acts as depo-sitary. The Secretary-General would appreciate it ifyou would confirm this understanding so that in

the exercise of his depositary functions he couldnotify all interested States accordingly."134. If, however, there is no information as to

any agreement or other provision in effect in the newState about the devolution of treaty obligations, theletter is on the following lines:

"I am directed by the Secretary-General to referto multilateral Conventions and Agreements con-cluded under the auspices of the United Nations aswell as to certain Conventions and Agreementswhich, having been concluded under the auspicesof the League of Nations, were subsequently amendedby Protocols adopted by the General Assembly ofthe United Nations. The depositary functions inrespect of these instruments are exercised by theSecretary-General.

"It will be noted that certain of these instrumentshad been made applicable to your country, beforeit attained independence, by the Government of [thepredecessor State], which was then responsible forthe foreign relations of [the new State], In thisconnexion, I have the honour to call to your atten-tion the practice which has developed regarding thesuccession of new States to the rights and obliga-tions arising out of multilateral treaties applied intheir territory by the States formerly responsible fortheir foreign relations. Under this practice, the newStates generally acknowledge themselves to be boundby such treaties through a formal notification ad-dressed to the Secretary-General by the Head of theState or Government or by the Minister for For-eign Affairs. The effect of such notification, whichthe Secretary-General, in the exercise of his deposi-tary functions, communicates to all interested States,is to consider the new State as a party in its ownname to the treaty concerned as of the date ofindependence, thus preserving the continuity of theapplication of the treaty in its territory . . .

"The Secretary-General would be grateful if youwould notify him of the position of your Govern-ment in regard to the treaties enumerated in thelist referred to above, so that he may inform allinterested States accordingly."

C. LISTS OF TREATIES ABOUT WHICH NEW STATESARE CONSULTED WITH REGARD TO SUCCESSION

135. Each letter of the kind described above con-tains a list of treaties about which inquiry is madeas to succession. This memorandum will now describethe types of treaties which are included in such lists,and the types of treaties not included.

i. Types of treaties included in the lists

136. The lists include all the multilateral treatiesof the United Nations (with some exceptions, whichwill be discussed below) which, according to thearchives of the Secretariat, were applicable in theterritory of the new State before its independence. Itlikewise includes all the treaties of the League ofNations which have been amended by United Nationsprotocols, and which were similarly applicable.

137. Treaties applicable to the territory of the newState. In ascertaining whether a treaty was applicablein the territory, the terms of the treaty, if any, onterritorial application are first examined. Some treatieshave territorial clauses providing procedures for exten-sion to dependent territories, and it can readily be


ascertained whether the treaty was extended to theterritory in question. Other treaties are limited intheir geographical scope; for example, certain Leagueof Nations treaties on opium are limited to the FarEastern territories of the parties, and the Secretary-General in reply to inquiries by some African States,has informed them that it is impossible for themeither to succeed or accede to those -treaties. SomeUnited Nations treaties are likewise regional in scope;for example, the Convention regarding the Measure-ment and Registration of Vessels Employed in InlandNavigation, done at Bangkok on 22 June 1956,-8 isopen only to States falling withing the geographicalscope of the Economic Commission for Asia and theFar East, and States outside that area cannot becomebound by it.

138. If there is no provision on territorial applica-tion, action has been based on the principle, frequentlysupported by representatives in the General Assem-bly,29 that the treaty was automatically applicable toall the dependent territories of every party. In thecase of such treaties, however, it has occurred thatthe new State has declined to recognize itself as boundon the ground that the treaty was never promulgatedas part of the internal law of the territory (see aboveunder Congo (Leopoldville), para. 74, and under IvoryCoast, para. 83).

139. The relevant question determining the inclu-sion of a treaty in the list is whether the treaty wasapplied before independence in the territory of thenew State, and not whether the new State, after itsindependence, would be able to take action to becomea party. Thus, for example, in 1957 the Federationof Malaya was consulted about succession to the obliga-tions of the 1949 Agreement for provisional applica-tion of the Draft Customs Conventions, which hadbeen extended to Malaya by the United Kingdomunder the territorial application clause of the Agree-ment. The Federation would not have been able toaccede to the Agreement, which was open only tothe Governments invited to take part in the prepara-tion of the Draft Conventions. The Federation recog-nized itself bound by the Agreement.

140. Likewise, since 1957 new States, after theyhave become Members of the United Nations, havebeen consulted about succession to the obligations ofthe 1946 Convention on the Privileges and Immunitiesof the United Nations, and since 1961, to those of the1947 Convention on the Privileges and Immunitiesof the Specialized Agencies. The former is open onlyto Members of the United Nations, and the latteronly to members of the specialized agencies; newStates (except for the special case of Syria's resump-tion of independence) do not have such membershipon the date of independence, and would thus beunable to accede to the Conventions between the dateof independence and the date of acquiring such mem-berships. Western Samoa, however, which has notapplied for membership in the United Nations, wasnot consulted about succession to the obligations ofthe 1946 Convention on the Privileges and Immunitiesof the United Nations; that country was admitted,after independence, as a member of the World HealthOrganization, and was consequently asked whether itrecognized itself as bound by the 1947 Convention on

28 E/CN.l 1/461.2» See ST/LEG/7, paras. 97-103.

the Privileges and Immunities of the SpecializedAgencies.

141. Succession to treaty obligations by States withmore than one predecessor. It may occur that the newState has more than one predecessor State. For ex-ample, the United Arab Republic succeeded to Egyptas to part of its territory, and to Syria as to theother part; the Federal Republic of Cameroon suc-ceeded to France as to part of its territory, and tothe United Kingdom as to the other part; and Somaliasucceeded to Italy as to part, and to the United King-dom as to the other part. In all three cases the internallaws of the two parts remained different after theunion, and the law of one part was not extended tothe other. In the case of Somalia, and also in certaincorrespondence with the United Arab Republic aboutthe application of the 1947 Convention on the Privi-leges and Immunities of the Specialized Agencies, theUnited Nations Secretariat has taken the view thatthe new State could succeed to the rights and obliga-tions of any treaty applicable to either part of thecountry, but only provided that the State recognizesthat their application should extend to its entire ter-ritory (see para. 103).

142. Some of the States concerned, however, havetaken a different view. The United Arab Republicdeclared in 1958 that the treaties of Egypt and Syriaremained "valid within the regional limits prescribedon their conclusion and in accordance with the prin-ciples of international law" (see para. 48). Cameroon(see para. 59) and Somalia (see para. 106) recog-nized that they continued to be bound by internationallabour conventions, but only within their original ter-ritorial limits of application; the International LabourOffice has registered declarations to that effect withthe Secretariat. Some difficulties may be anticipatedfrom this kind of limited succession, for example, inrespect of treaties which are applicable abroad or onthe high seas, or which are otherwise impossible toapply on a purely regional basis; the question mayalso arise whether a State which recognizes itselfbound by a treaty in respect of only part of its ter-ritory is able to exercise the full rights of a party intaking actions provided for in the treaty or Otherwiseopen only to parties.

143. Treaties not yet in force. The lists of treatiessent to new States have since 1958 included not onlytreaties which are in force, but also treaties whichare not yet in force, in respect of which the predeces-sor State has taken final action to become bound, andto extend the treaty to the territory which has laterbecome independent. France in 1954 ratified andBelgium in 1958 acceded to the 1953 Opium Protocol,which is not yet in force; both countries also notifiedthe Secretary-General of the extension of the Protocolto their dependent territories. Cameroon, the CentralAfrican Republic, the Congo (Brazzaville), the Congo(Leopoldville) and the Ivory Coast have recognizedthemselves as bound by the instruments deposited bytheir respective predecessors. In March 1960 the UnitedKingdom ratified the 1958 Conventions on the Terri-torial Sea and Contiguous Zone, on the High Seas,and on Fishing, which do not contain any territorialapplication clauses. Nigeria and Sierra Leone haverecognized themselves as bound by these ratifications.It may also be mentioned that Pakistan in 1953 spon-taneously informed the Secretary-General that it wasbound by the action of the United Kingdom in re-


spect of a League treaty which was not yet in force(see paras. 16-17). Where a treaty provides for entryinto force after the deposit of a certain number ofratifications or accessions, the question arises whethera declaration that a successor State is bound by itspredecessor's action should be counted as equivalentto a ratification or accession for the purpose of entryinto force. In a recent circular note announcing thedeposit of the twenty-second instrument in respect ofthe 1958 Convention on the High Seas, the Secretary-General counted the declarations of Nigeria and SierraLeone toward the number of twenty-two.

ii. Types of treaties not included in the lists

144. The exclusion of some treaties from the listis dictated by legal considerations, and that of othersby practical considerations. The former class will beexamined first.

145. Constitutions of international organisations.The Secretary-General is the depositary of the Con-stitution of the World Health Organization, the Con-vention on the Inter-Governmental Maritime Consulta-tive Organization, and the International Agreement onOlive Oil, 1956. No new State has been consultedabout succession to the obligations of any of theseconstitutions (except in one case; see para. 98). Noneof the three treaties contains any provision on suc-cession of States. The W H O Constitution is open forsignature or acceptance to Members of the UnitedNations, and to other States whose applications havebeen approved by a simple majority vote of the WorldHealth Assembly. The IMCO Convention is open toMembers of the United Nations, but new States whichare non-members of -the United Nations must makean application which requires approval of two-thirdsof the members of the Council, other than associatemembers. The Olive Oil Agreement provides that afterentry into force, accession is possible only if the con-ditions of such accession are determined by agree-ment between the Council and the Government con-cerned. It has been considered that these provisionsrequire new States to follow the procedures laid downin the treaties in order to become parties.

146. Nigeria as a dependent territory was an asso-ciate member of IMCO, but after independence it be-came a full member by the deposit of an instrument ofacceptance, and not by succession (see paras. 98-99).Syria, upon its resumption of independence, againexercised the rights of membership in all organizationsof which it had been a member before the formationof the United Arab Republic, but was informed thatin order to become a member of IMCO it would haveto take the ordinary measures provided in the Con-vention, without being able to succeed to the mem-bership of the United Arab Republic (see paras. 122-123). Thus Syria, on re-establishing its independence,reacquired its own rights which existed before theunion in respect of international organizations, but didnot inherit such rights from the United Arab Republic.It may be noted, however, that Syria adopted a law(see annex, No. 13) by which it declared that it hadinherited the memberships in international organizationswhich the United Arab Republic had acquired duringthe period of union.

147. On the other hand, when the United ArabRepublic was formed in 1958 by the Union of Egypt andSyria, which were both members of WHO, the Re-

public continued without interruption to be a memberof WHO (and also a Member of the United Nations).

148. It may be noted that the International CoffeeAgreement, 1962,30 of which the Secretary-General isalso the depositary, and which establishes the Interna-tional Coffee Organization, provides in article 67,paragraph 4:

"The Government of a territory to which theAgreement has been extended under paragraph (1)of this Article and which has subsequently becomeindependent may, within 90 days after the attainmentof independence, declare by notification to the Secre-tary-General of the United Nations that it has as-sumed the rights and obligations of a ContractingParty to the Agreement. It shall, as from the dateof such notification, become a party to the Agree-ment."

149. This provision of course establishes a differentprocedure from that under the constitutions of theother organizations referred to above.

150. Treaties that have ceased to be in force or aresuperseded. For obvious reasons, no inquiries are madeabout treaties which, by the date of independence, haveceased to be in force. Furthermore, the 1949 Agreementfor Provisional Application of the Draft Customs Con-ventions is superseded by later agreements, and hasbeen denounced by many of its parties. Though it stillhas barely enough parties to remain in force, since 1961new States have not been asked whether they considerthemselves bound by it.

151. Treaties signed, but not ratified, by the prede-cessor State. The lists of treaties sent to new States havenot included any treaties which have been only signed,but not ratified, by predecessor States. No case hasyet arisen in practice in which a new State, in relianceon a signature by its predecessor, has submitted fordeposit an instrument of ratification to a treaty. Thereis considerable practice to the effect that a new Statecan inherit the legal consequences of a ratification byits predecessor of a treaty which is not yet in force(see para. 143) ; but it is not yet clear whether thenew State can inherit the legal consequences of a simplesignature of a treaty which is subject to ratification.The case presents some practical importance, sincenumerous League of Nations treaties, some of whichwere signed, but never ratified, by France, the UnitedKingdom, etc., are not now open to accession by newStates,31 and new States have sometimes indicated aninterest in becoming parties to those treaties. The ques-tion of opening those treaties to new States has beenreferred to the International Law Commission by Gen-eral Assembly resolution 1766 (XVII) .

152. International instruments relating to GATT.The Secretary-General does not consult new Statesabout succession to the various protocols and otherinstruments relating to the General Agreement onTariffs and Trade, because the Contracting Parties havetheir own procedure in the matter. After a new Statebecomes a Contracting Party through the decision ofthe other Contracting Parties, it makes a notificationto the Secretary-General by which it recognizes itselfas bound by the various GATT instruments concludedprior to 1 February 1955, of which the Secretary-General is the depositary, and also a notification tothe Executive Secretary of the Contracting Parties of

so E/CONF.42/R.2.3i See A/C.6/L.498 for a list of these treaties.


GATT, who is the depositary of GATT instrumentsconcluded after 1 February 1955.

153. League of Nations treaties not amended byUnited Nations Protocols. When the predecessor Stateis a party to a League treaty which has been amendedby a protocol approved by the General Assembly ofthe United Nations but that State has not become aparty to the protocol, the new State is consulted as towhether it considers itself bound by the League treaty,in order to determine whether the new State should beinvited to become party to the protocol (which is openonly to parties to the League treaty), or should beinvited to become party to the League treaty as amended(which is usually open to, among others, all Membersof the United Nations). If, on the other hand, the prede-cessor State was party both to the League treaty andto the United Nations protocol, the new State is con-sulted as to whether it considers itself bound by theLeague treaty as amended.

154. The Secretary-General, however, has not yetof his own accord consulted new States about successionto League treaties which have not been amended, be-cause such action does not seem to be required byGeneral Assembly resolution 24 (I) of 12 February1946, under which the Secretary-General has func-tions in respect of those treaties. There would be somelegal problems in connexion with such action. In thefirst place, it would be necessary to establish a list ofthe League treaties that are still in force, and this wouldrequire a study not only of whether each treaty hasbeen denounced by the parties but also whether thetreaty can still be executed after the disappearance ofthe organs of the League, whether the treaty has beensuperseded among the parties by a new treaty, whetherthe treaty has fallen into desuetude, etc. Then it wouldbe necessary to draw up a list for each treaty of whatStates could have succeeded to its rights and obligations,sometimes through several consecutive successions. TheGeneral Assembly by resolution 1766 (XVII) hasreferred to the International Law Commission a prob-lem relating to the unamended League treaties, andpossibly at a later stage of consideration the Assemblymay request that action be taken to clarify the statusof those treaties.

155. When a party to a League treaty has made aninquiry whether a new State regards itself as boundby it, the Secretary-General transmits the inquiry tothe new State, unless he. has the information alreadyat its disposal.

D. SUMMARY OF ACTIONS BY STATES WITH REGARD TOSUCCESSION TO TREATIES

156. Since 1956, when the practice of inquiringabout succession to treaties of the United Nations de-veloped to approximately its present extent, the follow-ing States have declared that they continue to be boundby all the treaties about which inquiries were made, orby all treaties made applicable to their territory bytheir predecessors:

Central African RepublicCongo (Brazzaville)32

Ivory Coast (except for one treaty not promulgatedinternally)

Ghana33

Malaya33

Morocco33

Nigeria33

Sierra Leone33

Syria33

United Arab Republic.33

157. The following States have recognized that theycontinue to be bound by some of the treaties concludedby their predecessors and made applicable to theirterritories, but have not yet replied with regard to othersuch treaties:

CameroonCongo (Leopoldville)Cyprus34

DahomeyGuineaMadagascarMaliSenegalTanganyikaTogoTunisia.158. The following States have not yet replied to

the inquiries about United Nations treaties, but havedeclared that they continue to be bound by the obliga-tions of various conventions of the International LabourOrganisation:

ChadGabonSomaliaMauritania.159. Three States have stated that they are not

bound by treaties which contain no territorial applica-tion clause, on the ground that before independencethose treaties had not been promulgated in internal law(see paras. 74, 83 and 109).

160. Two States have stated that they are not boundby particular League of Nations treaties which containterritorial application clauses and were specifically ex-tended to their territories by their predecessors (seeparas. 21 and 22). Those States have, however, declaredthat they continued to be bound by other such treaties.

161. One State (see para. 30) has not recognizeditself as bound by any of the treaty obligations of itspredecessor. Another State (see paras. 111-112) hasdeclared to the Secretary-General that it does not con-sider itself bound by treaties concluded by its prede-cessor, but has recognized that it continues to be boundby a number of treaties that have other depositaries.

162. As for the procedure by which States recognizethat they continue to be bound, most have made formalnotifications which, as stated in letters from the Secre-tary-General (see para. 134), are signed by the Headof State or Government or Minister for Foreign Affairs.A few States, however, have sent communicationsfrom an official of the Foreign Ministry or from thePermanent Mission to the United Nations, acting underinstructions.

3 2 The Congo (Brazzaville), however, deposited an instrumentof accession to one treaty by the obligations of which it couldhave recognized itself as continuing to be bound.

3 3 For the agreement or other official text relating to suc-cession by this State, see the annex.

84 Idem.


163. States which have recognized that they continueto be bound by treaties concluded by their predecessorshave often exercised the rights granted to parties bythose treaties and have thus indicated that they con-sider that they have succeeded to the rights, as well asto the obligations, of parties. Thus, for example, Statesthat have declared that they continue to be bound bythe 1949 Convention on Road Traffic have notified theSecretary-General of the distinctive letters selected bythem in accordance with paragraph 3 of annex 4 ofthat convention, and also have considered that theyacquire the right of parties at any time to excludeannexes 1 and 2 from their application of the Conven-tion. Moreover, some States which have recognized

that they continue to be bound by the 1951 Conventionon Refugees have broadened the scope of its geographicalapplication beyond that given to it by their predecessors,through the exercise of an option granted to partiesby the Convention.

164. In general, new States which have recognizedthat they continued to be bound by treaties have con-sidered themselves bound from the time of their attain-ment of independence. With regard to internationallabour conventions, however, it is the custom for newStates to consider themselves bound only as of the dateon which they are admitted to the International LabourOrganisation.

A N N E X

GENERAL PROVISIONS ON DEVOLUTION OF TREATY RIGHTS AND OBLIGATIONS

No. 1. JORDAN

Treaty of Alliance between the United Kingdom of GreatBritain and Northern Ireland and the Hashemite Kingdom ofJordan. 22 March 1946 (United Nations Treaty Series,vol. 6, p. 144).

Article 8, paragraph 2Any general international treaty, convention or agreement

which has been made applicable to Trans-Jordan by HisMajesty the King (or by his Government in the UnitedKingdom) as mandatory shall continue to be observed byHis Highness the Amir until His Highness the Amir(or his Government) become a separate contracting partythereto or the instrument in question is legally terminated inrespect of Trans-Jordan.The Treaty of Alliance of 15 March 1948 (United Nations

Treaty Series, vol. 77, p. 77) between the United Kingdom andthe Hashemite Kingdom of Jordan contains no similar pro-vision, but it was indicated in an exchange of letters of thesame date that the omission "does not imply any intention toderogate from the principles set forth in" article 8 of the Treatyof Alliance of 22 March 1946.

The Treaty of Alliance of 1946 was abrogated by an exchangeof notes dated 13 March 1957.

No. 2. INDIA AND PAKISTAN

Indian Independence (International Arrangements) Order 1947,promulgated on 4 August (A/C.6/161; General Assembly,Official Records, Second Session, Sixth Committee, pp. 308-310, annex 6 c).

The agreement set out in the Schedule to this Order shall,as from the appointed day, have the effect of an agreementduly made between the Dominion of India and the Dominionof Pakistan.

SCHEDULE

Agreement as to the devolution of international rights andobligations upon the Dominions of India and Pakistan

1. The international rights and obligations to which Indiais entitled and subject immediately before 15 August 1947will devolve in accordance with the provisions of thisagreement.

2. (a) Membership of all international organizations to-gether with the rights and obligations attaching to suchmembership will devolve solely upon the Dominion of India.

For the purposes of this paragraph any rights or obligationsarising under the Final Act of the United Nations Monetaryand Financial Conference will be deemed to be rights orobligations attached to membership of the InternationalMonetary Fund and to membership of the International Bankfor Reconstruction and Development.

(b) The Dominion of Pakistan will take such steps as maybe necessary to apply for membership of such internationalorganization as it chooses to join.

3. (a) Rights and obligations under international agree-ments having an exclusive territorial application to an areacomprised in the Dominion of India will devolve upon thatDominion.

(b) Rights and obligations under international agreementshaving an exclusive territorial application to an area com-prised in the Dominion of Pakistan will devolve upon thatDominion.

4. Subject to articles 2 and 3 of this agreement, rightsand obligations under all international agreements to whichIndia is a party immediately before the appointed day willdevolve both upon the Dominion of India and upon theDominion of Pakistan, and will, if necessary, be apportionedbetween the two Dominions.

No. 3. BURMA

Treaty between the Government of the United Kingdom ofGreat Britain and Northern Ireland and the ProvisionalGovernment of Burma regarding the Recognition of BurmeseIndependence and Related Matters. Signed at London on17 October 1947 (United Nations Treaty Series, vol. 70,p. 184).

Article 2

All obligations and responsibilities heretofore devolvingon the Government of the United Kingdom which arisefrom any valid international instrument shall henceforth,in so far as such instrument may be held to have applicationto Burma, devolve upon the Provisional Government ofBurma. The rights and benefits heretofore enjoyed by theGovernment of the United Kingdom in virtue of the appli-cation of any such international instrument to Burma shallhenceforth be enjoyed by the Provisional Government ofBurma.

No. 4. CEYLON

External Affairs Agreement between the United Kingdom ofGreat Britain and Northern Ireland and Ceylon. Signed atColombo on 11 November 1947 (United Nations TreatySeries, vol. 86, p. 28).

(6) All obligations and responsibilities heretofore devolv-ing on the Government of the United Kingdom which arisefrom any valid international instrument shall henceforth inso far as such instrument may be held to have applicationto Ceylon devolve upon the Government of Ceylon. Thereciprocal rights and benefits heretofore enjoyed by theGovernment of the United Kingdom in virtue of the applica-tion of any such international instrument to Ceylon shallhenceforth be enjoyed by the Government of Ceylon.


No. 5. INDONESIA

Round-Table Conference Agreement between the Governmentof the Kingdom of the Netherlands and the Government ofthe Republic of Indonesia: Agreement on TransitionalMeasures of 2 November 1949 (United Nations TreatySeries, vol. 69, pp. 269-270).

Article 5

1. The Kingdom of the Netherlands and the Republic ofthe United States of Indonesia understand that, under ob-servance of the provisions of paragraph 2 hereunder, therights and obligations of the Kingdom arising out of treatiesand other international agreements concluded by the Kingdomshall be considered as the rights and obligations of theRepublic of the United States of Indonesia only where andinasmuch as such treaties and agreements are applicable tothe jurisdiction of the Republic of the United States ofIndonesia and with the exception of rights and duties arisingout of treaties and agreements to which the Republic of theUnited States of Indonesia cannot become a party on theground of the provisions of such treaties and agreements.

2. Without prejudice to the power of the Republic of theUnited States of Indonesia to denounce the treaties andagreements referred to in paragraph 1 above or to terminatetheir operation for its jurisdiction by other means as specifiedin the provisions of those treaties and agreements, the pro-visions of paragraph 1 above shall not be applicable totreaties and agreements in respect of which consultationbetween the Republic of the United States of Indonesia andthe Kingdom of the Netherlands shall lead to the conclusionthat such treaties and agreements do not fall under thestipulations of paragraph 1 above.

No. 6. MOROCCO

Diplomatic agreement of 26 May 1956 between the FrenchRepublic and Morocco (Annuaire francais de Droit inter-national, 1956, pp. 133-134).

Article 11

Morocco shall assume the obligations arising out of inter-national treaties concluded by France on behalf of Moroccoand out of such international instruments relating to Moroccoas have not given rise to observations on its part.

No. 7. GHANA

Exchange of letters of 25 November 1957 between the UnitedKingdom of Great Britain and Northern Ireland and Ghana{United Nations Treaty Series, vol. 287, p. 233).

(i) All obligations and responsibilities of the Governmentof the United Kingdom which arise from any valid inter-national instrument shall henceforth, in so far as suchinstrument may be held to have application to Ghana, beassumed by the Government of Ghana;

(ii) The rights and benefits heretofore enjoyed by theGovernment of the United Kingdom in virtue of the applica-tion of any such international instrument to the Gold Coastshall henceforth be enjoyed by the Government of Ghana.

No. 8. FEDERATION OF MALAYA

Exchange of letters of 12 September 1957 between the UnitedKingdom of Great Britain and Northern Ireland and theFederation of Malaya (United Nations Treaty Series, vol.279, p. 287).

(i) All obligations and responsibilities of the Governmentof the United Kingdom which arise from any valid inter-national instrument are, from 31 August 1957, assumed bythe Government of the Federation of Malaya in so far assuch instruments may be held to have application to or inrespect of the Federation of Malaya.

(ii) The rights and benefits heretofore enjoyed by theGovernment of the United Kingdom in virtue of the applica-

tion of any such international instrument to or in respect ofthe Federation of Malaya are, from 31 August 1957, enjoyedby the Government of the Federation of Malaya.

No. 9. CYPRUS

Treaty between the United Kingdom of Great Britain andNorthern Ireland, Greece, Turkey and Cyprus, concerningthe Establishment of the Republic of Cyprus. Signed atNicosia on 16 August 1960 (United Nations Treaty Series,vol. 382, p. 8).

Article 8

(1) All international obligations and responsibilities of theGovernment of the United Kingdom shall henceforth, in sofar as they may be held to have application to the Republicof Cyprus, be assumed by the Government of the Republic ofCyprus.

(2) The international rights and benefits heretofore enjoyedby the Government of the United Kingdom in virtue of theirapplication to the territory of the Republic of C3rprus shallhenceforth be enjoyed by the Government of the Republicof Cyprus.

No. 10. NIGERIA

Exchange of letters of 1 October 1960 between the UnitedKingdom of Great Britain and Northern Ireland and theFederation of Nigeria (United Nations Treaty Series, vol.384, p. 207).

(i) All obligations and responsibilities of the Governmentof the United Kingdom which arise from any valid inter-national instrument shall henceforth, in so far as such instru-ment may be held to have application to Nigeria, be assumedby the Government of the Federation of Nigeria;

(ii) The rights and benefits heretofore enjoyed by theGovernment of the United Kingdom in virtue of the applica-tion of any such international instrument to Nigeria shallhenceforth be enjoyed by the Government of the Federationof Nigeria.

No. 11. SOMALIA

Exchange of letters of 1 July 1960 between the Italian Republicand the Republic of Somalia. (Bollettino Ufficiale dellai Re-pubblica Somala, year II, Suppl. No. 9 to No. 12 (31 Decem-ber 1961), p. 6).

With reference to the Treaty of Friendship concluded thisday between our two countries, I have the honour to informYour Excellency as follows:

(1) It is agreed that, upon the entry into force of theaforesaid Treaty, the Government of Somalia shall succeedthe Italian Government in all the rights and obligationsarising out of international instruments concluded by theItalian Government, in its capacity as the AdministeringAuthority for the Trust Territory, in the name of and onbehalf of Somaliland up to 30 June 1960;

(2) In accordance with the purposes and the principle ofArticle 12 of the Trusteeship Agreement for Somaliland of27 January 1950, the Italian Government considers itselfbound to provide the attached list of the multilateral agree-ments entered into by Italy before 1950 on humanitarian,social, health, legal and administrative matters and appliedto Somaliland.

Upon the accession of Somalia to independence, all re-sponsibilities and all obligations assumed by the ItalianGovernment under these agreements, in so far as they extendto Somalia, shall cease with regard both to the Somali Gov-ernment and to third States.

This note, the list which accompanies it, and the replywhich Your Excellency will kindly send me, shall constitutean agreement between the two Governments and shall forman integral part of the aforesaid Treaty.


Multilateral Agreements entered into by the Italian Governmentand extended to Somalia

30 September 1921—Geneva, Convention for the Suppressionof the Traffic in Women and Children;

12 September 1923—Geneva, Convention for the Suppressionof the Circulation of, and Traffic in, Obscene Publications;

10 April 1926—Brussels, Convention for the Unification ofCertain Rules relating to the Immunity of State-ownedVessels;

21 June 1926, Sanitary Convention concerning Protectionagainst Epidemic Diseases;

25 September 1926, Geneva, Slavery Convention;7 June 1930—Geneva, Conventions for the unification of the

law of negotiable instruments:(A) Convention on the Stamp Laws in connection with Bills

of Exchange and Promissory Notes, and Protocol ;(B) Convention providing a Uniform Law for Bills of

Exchange and Promissory Notes, with Annexes andProtocol;

(C) Convention for the settlement of Certain Conflicts ofLaws in connection with Bills of Exchange and Promis-sory Notes, and Protocol;

19 March 1931—Geneva, Conventions for the unification of thelaw of negotiable instruments:(A) Convention providing a Uniform Law for Cheques,

with Annexes and Protocol;(B) Convention for the Settlement of Certain Conflicts of

I«iws in connection with Cheques, and Protocol;(C) Convention on the Stamp Laws in connection with

Cheques, and Protocol;13 July 1931—Geneva, Convention for limiting the Manufac-

ture and regulating the Distribution of Narcotic Drugs;12 April 1933—The Hague, Sanitary Convention for Aerial

Navigation;11 October 1933—Geneva, Convention for facilitating the Inter-

national Circulation of Films of an Educational Character;29 May 1933—Rome, Convention for the Unification of Certain

Rules relating to the Precautionary Attachment of Aircraft;24 May 1934—Brussels, Additional Protocol to the Convention

for the Unification of Certain Rules relating to the Immunityof State-owned Vessels, signed at Brussels on 10 April 1926;

22 December 1934—Paris, International Agreements concern-ing: (A) The Suppression of Consular Visas on Bills ofHealth; (B) The Suppression of Bills of Health;

31 October 1938—Paris, Convention amending the Inter-national Sanitary Convention of 21 June 1926.

No. 12. SIERRA LEONE

Exchange of letters of 5 May 1961 between the United King-dom of Great Britain and Northern Ireland and SierraLeone (United Nations Treaty Series, vol. 420).

(i) All obligations and responsibilities of the Governmentof the United Kingdom which arise from any valid inter-national instrument shall be assumed by the Government ofSierra Leone as from 27th April 1961, in so far as suchinstrument may be held to have application to SierraLeone;

(ii) The rights and benefits heretofore enjoyed by the Gov-ernment of the United Kingdom in virtue of the applicationof any such international instrument to Sierra Leone shall,as from 27th April 1961, be enjoyed by the Government ofSierra Leone.

No. 13. SYRIA

Legislative Decree No. 25 of 13 June 1962.

Article 1The obligations assumed under any bilateral international

treaty, agreement or convention during the period of theUnion with Egypt are considered to be in force in the SyrianArab Republic until such instrument is amended or denouncedby the Syrian Arab Republic or by the other Parties in ac-cordance with its provisions.

Article 2The obligations assumed under any multilateral treaty,

agreement, convention or instrument of participation in aninternational institution or organization during the period ofthe Union with Egypt are considered to be in force in theSyrian Arab Republic until such instrument is denouncedin accordance with its provisions.

Appendix

List of full titles and citations of United Nations multilateral treaties referred to byshort titles in the memorandum8

Short title

1904 Agreement on the White SlaveTraffic, as amended by the 1949Protocol

1910 Convention on the White SlaveTraffic, as amended by the 1949Protocol

1910 Agreement on Obscene Publica-tions, as amended by the 1949Protocol

Full title and citation

International Agreement for the Suppression of theWhite Slave Traffic, signed at Paris on 18 May1904, as amended by the Protocol signed at LakeSuccess, New York, on 4 May 1949. UnamendedAgreement: L.N.T.S., vol. I, p. 83, Protocol ofAmendment: U.N.T.S., vol. 30, p. 23. Agreementas amended: U.N.T.S., vol. 92, p. 19.

International Convention for the Suppression of theWhite Slave Traffic, signed at Paris on 4 May1910, as amended by the Protocol signed at LakeSuccess, New York, on 4 May 1949. Convention asamended: U.N.T.S., vol. 98, p. 101.

Agreement for the Suppression of the Circulation ofObscene Publications, signed at Paris on 4 May1910, as amended by the Protocol signed at LakeSuccess, New York, on 4 May 1949. Agreement asamended: U.N.T.S., vol. 47, p. 159.

a The treaties are arranged in the chronological order of the short titles used in the memo-randum; treaties of the same year are in alphabetical order. In the citations, United NationsTreaty Series is abbreviated as U.N.T.S., and League of Nations Treaty Series as L.N.T.S.

Succession of States and Governments 129Short title

1912 Opium Convention

1921 Convention on the Traffic inWomen and Children, as amendedby the 1947 Protocol

1923 Convention on Obscene Publica-tions, as amended by the 1947Protocol

1925 Agreement on Opium as amendedby the 1946 Protocol

1925 Opium Convention, as amendedby the 1946 Protocol

1926 Convention on Slavery,amended by the 1953 Protocol

1926 Convention on Slavery

1928 Convention on Economic Sta-tistics, as amended by the 1948Protocol

1931 Convention on Narcotic Drugs,as amended by the 1946 Protocol

1933 Convention on the Traffic inWomen

1946 Convention on the Privileges andImmunities of the United Nations

1946 Protocol on Narcotics

1947 Convention on the Privilegesand Immunities of the SpecializedAgencies

1947 Protocol on Obscene Publications


International Opium Convention, done at The Hagueon 23 January 1912. L.N.T.S., vol. VIII, p. 187.

Convention for the Suppression of the Traffic inWomen and Children, concluded at Geneva on30 September 1921, as amended by the Protocolsigned at Lake Success, New York, on 12 November1947. U.N.T.S., vol. 53, p. 39.

Convention for the Suppression of the Circulation of,and Traffic in, Obscene Publications, concluded atGeneva on 12 September 1923, as amended by theProtocol signed at Lake Success, New York, on12 November 1947. Convention as amended:U.N.T.S., vol. 46, p. 201.

Agreement concerning the Suppression of Manufac-ture of, Internal Trade in and Use of, PreparedOpium, signed at Geneva on 11 February 1925,as amended by the Protocol signed at Lake Successon 11 December 1946. Unamended Agreement:L.N.T.S., vol. LI, p. 337. Protocol of amendment:U.N.T.S., vol. 12, p. 179. Convention as amend-ed: doc. E/NT/1 (Sales No.: 47.XI.3).

International Opium Convention, with Protocol, signedat Geneva on 19 February 1925, as amended by theProtocol signed at Lake Success, New York, on 11December 1946. Unamended Convention: L.N.T.S.,vol. LXXXI, p. 317. Protocol of amendment:U.N.T.S., vol. 12, p. 179. Convention as amended:doc. E/XT/2 (Sales No.: 47.XI.4).

Slavery Convention, signed at Geneva on 25 Septem-ber 1926, as amended by the Protocol opened forsignature at the Headquarters of the United Nationson 7 December 1953. U.N.T.S., vol. 212, p. 17.

Slavery Convention, signed at Geneva on 25 Septem-ber 1926. L.N.T.S., vol. LX, p. 253.

International Convention relating to Economic Sta-tistics, signed at Geneva on 14 December 1928, asamended by the Protocol signed at Paris on 9 De-cember 1948. U.N.T.S., vol. 73, p. 39.

Convention for Limiting the Manufacture and Reg-ulating the Distribution of Narcotic Drugs, withProtocol of Signature, signed at Geneva on 13 July1931, as amended by the Protocol signed at LakeSuccess on 11 December 1946. Unamended Conven-tion: L.N.T.S., vol. CXXXIX, p. 301. Protocol ofamendment: U.N.T.S., vol. 12, p. 179. Convention asamended: doc. E/NT/3 (Sales No.: 47.XI.6).

Convention for the Suppression of the Traffic inWomen of Full Age, concluded at Geneva on 11October 1933. L.N.T.S., vol. CL, p. 431.

Convention on the Privileges and Immunities of theUnited Nations, adopted by the General Assemblyof the United Nations on 13 February 1946.U.N.T.S., vol. 1, p. 15.

Protocol, signed at Lake Success, New York, on11 December 1946, amending the Agreements, Con-ventions and Protocols on Narcotic Drugs con-cluded at The Hague on 23 January 1912, at Genevaon 11 February 1925 and 19 February 1925 and13 July 1931, at Bangkok on 27 November 1931and at Geneva on 26 June 1936. U.N.T.S., vol. 12,p. 179.

Convention on the Privileges and Immunities of theSpecialized Agencies, adopted by the General Assem-bly of the United Nations on 21 November 1947.U.N.T.S., vol. 33, p. 261.

Protocol signed at Lake Success, New York, on12 November 1947, to amend the Convention forthe Suppression of the Circulation of, and Trafficin, Obscene Publications, concluded at Geneva on12 September 1923. U.N.T.S., vol. 46, p. 169.

130 Yearbook of the International Law Commission, Vol. IIShort title

1947 Protocol on the White SlaveTrade

1948 Convention on Genocide

1948 IMCO Convention

1948 Protocol on Economic Statistics

1948 Protocol on Drugs

1949 Agreement for provisional ap-plication of the Draft CustomsConventions

1949 Convention on Road Traffic

1949 Protocol on Obscene Publications

1949 Protocol on the White SlaveTrade

1950 Agreement on Importation ofEducational, Scientific and CulturalMaterials

1950 Convention on Declaration ofDeath of Missing Persons

1950 Convention on the Traffic inPersons

1951 Convention on Refugees

1952 Convention on Importation ofCommercial Samples

1953 Convention on the PoliticalRights of Women


Protocol signed at Lake Success, New York, on12 November 1947, to amend the Convention for theSuppression of the Traffic in Women and Children,concluded at Geneva on 30 September 1921, and theConvention for the Suppression of the Traffic inWomen of Full Age, concluded at Geneva on11 October 1933. U.N.T.S., vol. 53, p. 13.

Convention on the Prevention and Punishment of theCrime of Genocide, adopted by the General Assem-bly of the United Nations on 9 December 1948.U.N.T.S., vol. 78, p. 277.

Convention of the Inter-Governmental MaritimeConsultative Organization, signed at Geneva on6 March 1948. U.N.T.S., vol. 289, p. 3.

Protocol signed at Paris on 9 December 1948, amend-ing the International Convention relating to Eco-nomic Statistics, signed at Geneva on 14 December1928. U.N.T.S., vol. 20, p. 229.

Protocol signed at Paris on 19 November 1948, Bring-ing under International Control Drugs Outside theScope of the Convention of 13 July 1931 for Limit-ing the Manufacture and Regulating the Distributionof Narcotic Drugs, as amended by the Protocolsigned at Lake Success, New York, on 11 December1946. U.N.T.S., vol. 44, p. 277.

Agreement providing for the provisional applicationof the Draft International Customs Conventions onTouring, on Commercial Road Vehicles and onInternational Transport of Goods by Road, signedat Geneva on 16 June 1949. U.N.T.S., vol. 45,p. 149.

Convention on Road Traffic, signed at Geneva on19 September 1949. U.N.T.S., vol. 125, p. 22.

Protocol, signed at Lake Success, New York, on4 May 1949, amending the Agreement for theSuppression of the Circulation of Obscene Publica-tions, signed at Paris on 4 May 1910. U.N.T.S.,vol. 30, p. 3.

Protocol, signed at Lake Success, New York, on4 May 1949, amending the International Agreementfor the Suppression of the White Slave Traffic,signed at Paris on 18 May 1904, and the Inter-national Convention for the Suppression of theWhite Slave Traffic, signed at Paris on 4 May1910. U.N.T.S., vol. 30, p. 23.

Agreement on the Importation of Educational, Scien-tific and Cultural Materials, opened for signatureat Lake Success, New York, on 22 November 1950.U.N.T.S., vol. 131, p. 25.

Convention on the Declaration of Death of MissingPersons, established and opened for accession on6 April 1950 by the United Nations Conference onthe Declaration of Death of Missing Persons,U.N.T.S., vol. 119, p. 99. The Convention wasextended for ten years after 23 January 1957 by aProtocol. U.N.T.S., vol. 258, p. 392.

Convention for the Suppression of the Traffic inPersons and of the Exploitation of the Prostitutionof Others, opened for signature at Lake Success,New York, on 21 March 1950. U.N.T.S., vol. 96,p. 271.

Convention relating to the Status of Refugees, doneat Geneva on 28 July 1951. U.N.T.S., vol. 189,p. 137.

International Convention to facilitate the Importationof Commercial Samples and Advertising Material,done at Geneva on 7 November 1952. U.N.T.S.,vol. 221, p. 255.

Convention on the Political Rights of Women, openedfor signature at New York on 31 March 1953.U.N.T.S., vol. 193, p. 135.

Succession of States and Governments 131Short title

1953 Opium Protocol

1953 Protocol on Slavery

1954 Additional Protocol on TouristPublicity Documents

1954 Convention on Customs Facilitiesfor Touring

1954 Customs Convention on PrivateRoad Vehicles

1956 Customs Convention on Aircraftand Pleasure Boats

1956 Customs Convention on Commer-cial Road Vehicles

1956 Customs Convention on Con-tainers

1956 Supplementary Convention onSlavery

1957 Convention on Nationality ofMarried Women

1958 Convention on Fishing

1958 Convention on Foreign ArbitralAwards

1958 Convention on the High Seas

1958 Convention on the TerritorialSea and Contiguous Zone


Protocol for Limiting and Regulating the Cultivationof the Poppy Plant, the Production of, internationaland Wholesale Trade in, and Use of Opium, openedfor signature at New York on 23 June 1953. Doc.E/NT/8 (Sales No.: 53.XI.6).

Protocol, opened for signature and acceptance at theHeadquarters of the United Nations on 7 December1953, amending the Slavery Convention signed atGeneva on 25 September 1926. U.N.T.S., vol. 182,p. 51.

Additional Protocol to the Convention concerningCustoms Facilities for Touring, relating to theImportation of Tourist Publicity Documents andMaterial, done at New York on 4 June 1954.U.N.T.S., vol. 276, p. 191.

Convention concerning Customs Facilities for Tour-ing, done at New York on 4 June 1954. U.N.T.S.,vol. 276, p. 191.

Customs Convention on the Temporary Importationof Private Road Vehicles, done at New York on4 June 1954. U.N.T.S., vol. 282, p. 249.

Customs Convention on the Temporary Importationfor Private Use of Aircraft and Pleasure Boats,done at Geneva on 18 May 1956. U.N.T.S., vol. 319,p. 21.

Customs Convention on the Temporary Importationof Commercial Road Vehicles, done at Geneva on18 May 1956. U.N.T.S, vol. 327, p. 123.

Customs Convention on Containers, done at Genevaon 18 May 1956. U.N.T.S., vol. 338, p. 103.

Supplementary Convention on the Abolition of Sla-very, the Slave Trade, and Institutions and Prac-tices Similar to Slavery, done at Geneva on 7September 1956. U.N.T.S., vol. 266, p. 3.

Convention on the Nationality of Married Women,done at New York on 20 February 1957. U.N.T.S.,vol. 309, p. 65.

Convention on Fishing and Conservation of the Liv-ing Resources of the High Seas, done at Genevaon 29 April 1958. A/COXF.13/38.

Convention on the Recognition and Enforcement ofForeign Arbitral Awards, done at New York on10 June 1958. U.N.T.S., vol. 330, p. 3.

Convention on the High Seas, done at Geneva on29 April 1958. A/CONF. 13/38.

Convention on the Territorial Sea and the ContiguousZone, done at Geneva on 29 April 1958. A/CONF.13/38.

DOCUMENT A/CN.4/151

Digest of the decisions of international tribunals relating to State succession:study prepared by the Secretariat

[Original text: English][3 December 1962]

CONTENTSParagraphs Page

INTRODUCTION . . . 1-2 132

I. GENERAL

(A) Mode of transfer of sovereignty 3-11 132

(B) Date of transfer of sovereignty 12-15 134

(C) Identity of States 16-18 135

(D) Succession to territorial claims 19-20 135

(E) Transfer of real rights or international servitudes 21-25 135


CONTENTS (continued)

II. STATE SUCCESSION JN RELATION TO TREATIES

(A) Succession to treaty rights and obligations

(B) Succession to treaty rights and obligations relating to territory

(C) Nature of treaty obligation

III. STATE SUCCESSION IN RELATION TO PRIVATE RIGHTS AND CONCESSIONS

(A) Principle of respect for private rights

(B) Private rights over land acquired from native rulers

(C) Principle of respect for concessions granted by preceding State

(D) Subrogation of successor State to concessionary rights and obligations ofpreceding State

IV. STATE SUCCESSION IN RELATION TO RESPONSIBILITY FOR DELICTS AND BREACH OFCONTRACT

V. STATE SUCCESSION IN RELATION TO PUBLIC PROPERTY AND PUBLIC DEBTS, INCLUDING

APPORTIONMENT OF DEBTS AND REVENUE

(A) State succession in relation to public property

(B) State succession in relation to the public debt

(C) Apportionment of the public debt and revenue

VI. STATE SUCCESSION IN RELATION TO THE LEGAL SYSTEM OF THE PRECEDING STATE . .

VII. STATE SUCCESSION IN RELATION TO NATIONALITY

Paragraphs

26-30

31-35

36-38

39-52

53-62

63-74

75-84

85-101

102-107

108-111

112-113

114-115

116-121

Page

136137

137

138

139

141

142

144

148

149

150

150

151

Introduction1. At its 668th meeting on 26 June 1962 the Inter-

national Law Commission took note of the undertakingof the Secretariat to prepare a digest of the decisionsof international tribunals in the matter of State suc-cession (A/5209, para. 72). In pursuance of thatundertaking, the following Digest has been preparedto cover the pertinent decisions of the InternationalCourt of Justice, the Permanent Court of InternationalJustice, the Permanent Court of Arbitration and ofother international tribunals whose awards are con-tained in the Reports of International Arbitral Awards,vols. I-X.1 In view of the fact that many of the caseswere only concerned incidentally with questions of Statesuccession or were largely determined in the light ofparticular treaty provisions, attention has been con-centrated on those parts of the decisions which havemost relevance as indications of the general principlesinvolved.

2. The decisions have been arranged under topicheadings, with cross-references to decisions under otherheadings where appropriate. The heading of each caselists the title, date, parties, arbitrator or tribunal, andsource reference.

I. General

(A) MODE OF TRANSFER OF SOVEREIGNTY

COLOMBIA-VENEZUELA BOUNDARY CASE (1922)

Colombia v. VenezuelaArbitrator (Swiss Federal Council) appointed under

a Special Agreement of 3 November 19161 Reports of International Arbitral Awards (R.I.A.A.), pub-

lished by the United Nations under the following sales num-bers: vol. I, Sales No.: 48.V.2; vol. II, Sales No.: 49.V.I;vol. Il l , Sales No.: 49.V.2; vol. IV, Sales No.: Sl.V.l; vol. V,Sales No.: 52.V.3; vol. VI, Sales No.: 55.V.3; vol. VII, SalesNo. 56.V.5; vol. VIII, Sales No.: 58.V.2; vol. IX, Sales No.:S9.V.5; vol. X, Sales No.: 60.V.4.

Reports of International Arbitral Awards, vol. I,p. 229

3. A dispute arose between Colombia and Venezuelaregarding the execution of an arbitral award givenin 1891, under which certain boundary territories oc-cupied by Venezuela were awarded to Colombia. AfterColombia had attempted to execute the award in part,the two States agreed to request the Swiss FederalCouncil to decide whether or not any further formalitieswere required before the award could be put into effect.

4. In the course of its award the Swiss FederalCouncil stated that there was no binding rule of interna-tional law requiring the formal transfer of territory,although numerous examples existed where such a trans-fer had been required under treaty. Such examples,however, related to real cessions of territory, trans-ferred by one State which renounced sovereignty toanother which acquired it. Even if there was a rulerequiring the formal transfer of territory—which wasnot the case—this could not operate as regards theboundary between Colombia and Venezuela since bothStates were deemed to have had sovereignty over theirrespective territories since 1810 under the principleuti possidetis juris. This principle, which was agreedto by both Colombia and Venezuela and formed partof their respective constitutions, provided that theirboundaries should follow those laid down by the Spanishauthorities in respect of the different territorial unitsexisting prior to the establishment of the independentLatin American republics. In these circumstances, statedthe Tribunal, "il riy a ni cedant, ni cessionnaire". TheTribunal added:

"L'Etat qui occupait un territoire dont la souve-rainete a ete reconnue a Vautre Etat n'a aucun titrepour operer la remise d'un territoire qu'il detient sansdroit; sa possession a cesse d'etre legitime le jour deVentree en vigueur de la sentence. L'Etat dont Voc-cupation est contraire a la sentence n'a d'autre devoirque d'evacuer le territoire dont il s'agit, et Vautre Etat


pent occuper, en usant de la conrtoisie requise poureviter des conflits et prevenir les habitants."2

CASE CONCERNING GERMAN REPARATIONS UNDER ARTICLE2 6 0 OF THE TREATY OF VERSAILLES ( 1 9 2 4 )

Germany v. Reparations Commission

Arbitrator (Beichmann) appointed under Protocol of30 December 1922Reports of International Arbitral Awards, vol. I,

p. 4295. During this arbitration regarding the interpretation

of article 260 of the Treaty of Versailles, which providedfor the payment of reparations by Germany, Germanycontended that the article could not apply in respect ofterritory forming part of Czechoslovakia and the Serb-Croat-Slovene State, which had previously belonged toAustro-Hungary, since this territory had not been"ceded" within the meaning of article 260, the Treatiesof St. Germain and Trianon referring only to a "revoca-tion" of rights over the territory concerned by Austriaand Hungary in favour of Czechoslovakia and the Serb-Croat-Slovene State. The Arbitrator conceded thatCzechoslovakia and the Serb-Croat-Slovene State werealready in existence and had been exercising authorityover the territory in question at the date of the signatureof the Peace Treaties, to which they were parties.However, he held that such circumstances did notpreclude a cession of territory formerly part of theAustro-Hungarian Monarchy on the part of Austriaand Hungary.

" "Cession" d'un territoire veut bien dire renoncia-tion faite par un Etat en faveur d'un autre Etat auxdroits et titres que pourrait avoir au territoire enquestion le premier de ces Etats. Que I'Etat en faveurduquel la rcnonciation est faite est deja en posses-sion des territoires en question sans contestation dela part de I'Etat renongant et que cette possessionest le rcsultat d'un mouvement spontane de la popu-lation n'empeche pas que la renonciation ne constitueune "cession" "s

6. See also the Hawaiian Claims, para. 91 infra, inwhich the Arbitral Tribunal rejected the contention ofthe British Government that in the case of cession, asopposed to conquest, the successor State was liable forthe delicts of the preceding State. See too, LighthousesConcession Case, Claim No. 12 A, paras. 93-94 infra.

ILOILO CLAIMS (1925)

Great Britain v. United States

Great Britain-United States Arbitral Tribunal estab-lished under a Special Agreement of 18 August 1910

Reports of International Arbitral Awards, vol. VI,p. 158

7. In August 1898, after the Spanish-American War,a "Protocol of Agreement" was drawn up betweenSpain and the United States under which the UnitedStates occupied Manila, pending the conclusion of atreaty between the two Governments. Spain ceded thePhilippines to the United States by a Treaty signedon 10 December 1898, in which it was provided thatSpain should evacuate the islands after the exchangeof ratifications. However, before the exchange of ratifica-tions in April 1899, the local Spanish commander at

2 R.I.A.A., vol. I at p. 279.3 R.I.A.A., vol. I, at p. 443.

Iloilo announced his intention to withdraw and actuallyevacuated the town on 24 December 1898, when it wasoccupied by Filipino insurgents. Although United Statesforces arrived in the harbour of Iloilo on 28 Decemberin response to requests from local businessmen, in-cluding some of the British claimants, they did notoccupy the town until 10 February 1899. The Insurgentsburned down the town on 11 February. The claimspresented were on behalf of British subjects whoseproperty had been destroyed. In the course of its de-cision rejecting the contention of Great Britain that therehad been culpable delay on the part of the UnitedStates authorities, the Tribunal stated that:

" . . . there was no duty upon the United Statesunder the terms of the Protocol, or of the thenunratified treaty, or otherwise, to assume control atIloilo. De jure there was no sovereignty over theislands until the treaty was ratified. Nor was thereany de facto control over Iloilo assumed until thetaking up of hostilities against the United Stateson the part of the so-called Filipino Republic requiredit on February 11, 1899."4

LIGHTHOUSES CASE BETWEEN FRANCE AND GREECE(1934)

France v. Greece

Permanent Court of International Justice, Series A/BNo. 62

8. In this case an express treaty provision, deter-mining the conditions under which the successor Statewas subrogated to the position of the preceding Stateas regards concessions, was held to be unaffected inits operation by the fact that, at the date when the con-cession had been renewed, the territory concerned wasalready under the de facto occupation of the successorState. In April 1913, when the contract renewing alighthouse concession was concluded between theOttoman authorities and the French concession holder,some of the territories affected were no longer underTurkish control, having been occupied by troops of theBalkan allies in the course of the Balkan war. Moreover,the legislative decree issued by the Sultan authorizingthe renewal was not ratified by the Turkish Parliamentuntil the winter of 1914-1915, when some of the terri-tories concerned had already been ceded to Greece.

9. The Court did not find it necessary to expressits opinion on the effect, according to the general rulesof international law, of the grant of concessions bythe territorial sovereign in occupied territory as regardsthe successor State, since the matter was covered bythe terms of article 9 of Protocol XII of the Treaty ofLausanne, 1923. This provided expressly that successorStates of the Ottoman Empire were to be subrogatedas regards concession contracts entered into with theOttoman authorities prior to 29 October 1914, in so faras concerned territories detached from Turkey underthe Treaty of Lausanne, and prior to the coming intoforce of the respective treaties of peace in so far asconcerned territories detached from Turkey after theBalkan wars. Since no such territories had been assignedto Greece before the entry into force of the Treaty ofLondon in November 1913, the Court held that Greecewas bound to respect the concession, which had beenduly entered into in April 1913 according to Ottomanlaw.

4 R.I.A.A., vol. VI, at pp. 159-160.


LIGHTHOUSES IN CRETE AND SAMOS (1937)

France v. Greece

Permanent Court of International Justice, Series A/BNo. 7110. The Permanent Court of International Justice

was asked by France and Greece to decide whether theprinciple laid down in the Court's earlier Judgment inthe Lighthouses Case5 applied as regards lighthousessituated in Crete and Samos. In its earlier Judgmentthe Court held that the contract entered into in 1913between the French concession holders and the OttomanGovernment "was duly entered into and is accordinglyoperative as regards the Greek Government in so faras concerns lighthouses situated in the territories as-signed to it after the Balkan wars or subsequently."6

The Greek Government argued that the wide measureof autonomy enjoyed by Crete and Samos had causedTurkey to lose sovereignty over these islands evenbefore 1913. The concessionary contract entered intoby the Ottoman authorities in 1913 was not thereforevalidly concluded in respect of them, nor could they havebeen detached from Turkey by a transfer of sovereigntyto Greece at a subsequent date.

11. The Court held, however, that Crete and Samoscould only be regarded as detached if there had beenan "entire disappearance of any political link",7 andthat, not-withstanding their practical autonomy, both hadremained part of the Ottoman Empire, under thesovereignty of the Sultan, until the treaties of cessionhad been concluded at a date subsequent to that of therenewal of the concessionary contract. The contractwas therefore "duly entered into and. . . operative asregards the Greek Government" in so far as it con-cerned lighthouses situated on Crete and Samos, whichterritories had been assigned to that Government afterthe Balkan wars.

See also Lighthouses Concession Case, Claims Nos.11 and 4, paras. 96-100 infra.

(B) DATE OF TRANSFER OF SOVEREIGNTY

OTTOMAN PUBLIC DEBT ARBITRATION (1925)

Bulgaria, Iraq, Palestine, Transjordan,, Greece, Italyand Turkey

Arbitrator (Borel) appointed under articles 46 and 47of the Treaty of Lausanne, 1923, by the Council ofthe League of NationsReports of International Arbitral Awards, vol. I,

p. 52912. Amongst the points raised in the course of the

arbitration was whether the date of transfer of terri-torial sovereignty was the actual date of effective trans-fer or that laid down in the particular treaty of cession.Bulgaria argued that she should not be held respon-sible for the territories detached from her under theTreaty of Neuilly up to 9 August 1920, the date whenthe Treaty came into force, but only until October orDecember 1919, when the territories concerned hadbeen occupied by the Allied Powers in a manner whichhad amounted to a virtual execution of an anticipatedtransfer of sovereignty. The Arbitrator held that,although Bulgaria had lost the revenues for the terri-tories during the intervening period, nevertheless thedate of de facto transfer could not prevail over the

5 P.C.I.J., Series A/B No. 62, see paras. 8-9 supra.«Ibid., at p. 29.7 P.C.I.J., Series A/B No. 71, at p. 103.

clear wording of the Treaty of Lausanne which referredto the date on which the Treaty of Neuilly came intoforce.

"Des lors, le transfert de souverainete ne pentetre considers comme effectue juridiquement que parVentree en vigueur du Traite qui le stipule et a daterdu jour de cette mise en vigueur. Une derogation ace principe ne peut etre admise que si elle est nette-nient convenue dans le Traite en cause."91

13. Greece argued that she had only acquired sove-reignty over the territories ceded to her by the AlliedPowers (to which in turn they had been ceded byBulgaria under the Treaty of Neuilly in 1920) at thedate when the transfer had been ratified in 1924. Itwas held by the Arbitrator, however, that, having regardto the common intent of the parties, responsibility forthe share of the debt of the territories in questionbetween 1920 and 1924 should be borne by Greece, towhich the territories had actually passed.

LIGHTHOUSES CONCESSION CASE (1956)

France v. Greece

Arbitral Tribunal established under a Special Agree-ment of 15 July 1931

Award dated 24-27 July 1956

14. After two related decisions of the PermanentCourt of International Justice,9 arbitral proceedingswere held in order to settle outstanding differencesbetween the Greek Government and the French Com-pany which held a lighthouse concession from the Ot-toman Government operative in territory ceded toGreece. In the course of an introductory historicalsurvey, the Tribunal dealt with the question of the datewhen certain territorial changes after the Balkan warsand after the First World War should be consideredto have taken place. In the Ottoman Debt Arbitration10

it had been held that the date of the transfer to Greeceof responsibility for part of the Ottoman debt relatingto Western Thrace should not be that of the Treatyof Lausanne in 1924, as Greece asserted, nor Octoberor December, 1919, the date of de facto loss of sove-reignty by Bulgaria, but August 1920, the date whenthe Treaty of Neuilly came into force. The Tribunaladopted the decision of the Arbitrator (Borel) in theearlier case, in accordance with the following reasoning:

"Le Tribunal s'est demande quelles considerations— identiques differentes — doivent presider a la solu-tion de la question parallels de savoir a quelle dates'est opcree la subrogation des deux Etats successeurssuccessifs, la Bulgarie et la Grece, dans les droits etcharges decoulant de la concession des phares en cequi concerne la Thrace occidentale. La question n'estpas d'une grande importance pratique parce que leseul phare existant dans cette region paratt etre celuide Dcdcagatch, mais elle presente un interet theoriqueindeniable. Si la solution de M. Borel, dictee par desconsiderations propres au passage des dettes publi-ques, etait applicable egalement a la transition desdroits et charges decoulant de concessions, la Bulgariedevrait etre consideree comme Etat successeur pourla Thrace occidentale du 25 a out 1913 (date de V en-tree en vigueur du traite de Bucarest, repartissantles anciens territoires turcs entre les Allies balkani-

8 R.I.A.A., vol. I, at p. 555.9 See P.C.I.J., Series A/B Nos. 62 and 71, paras. 8-9 and

10-11 supra.10 See Ottoman Public Debt Arbitration, paras. 12-13 supra.


ques) au 9 aout (entree en vigueur du traite de paixde Neuilly), et la Grece depuis le 9 aout 1920. LeTribunal est a"accord avec M. Borel pour admettrequ'en tout cas le coimperium des Grandes Puissancessur la Thrace occidentale, qui a dure, au moins dejure, du 9 aout 1924, ne saurait pas, vu sa naturefiduciaire, etre considere comme ayant comporte leurpropre succession aux droits et charges decoulant dela concession turque. D'autre part, la date du 30 octo-bre 1918 mentionnee a la fin de Varticle 9 du Pro-tocole XII de Lausanne n'a aucune importance pourla region cotiere de la Thrace occidentale, puisqu'elleavait deja ete detachee de la Turquie des 1913. Ladate de Voccupation militaire de Dedeagatch par lesforces grecques (27 mai 1920) ne saurait non plusetre decisive en droit.

"Le choix doit done sc porter sur Vune des deuxdates suivantes: le 9 aout ou le 6 aout 1924. Etantdonne que la Bulgarie n'a plus exerce nulle autoriteetatique sur la Thrace occidentale (Dedeagatch)depuis Ventree en vigueur du Traite de paix deNeuilly le 9 aout 1920 et que la Gr&ce, au contraire,fa meme exercee dejd depuis Voccupation militaireanticipee de la region par ses forces vers la fin demai 1920, le Tribunal ne voit pas de raison des'ecarter en ce qui concerne le point de depart de lasubrogation de la Grece dans la concession des phares,de la sentence-Borel relative a la date decisive pourle calcul de la repartition de la dette publiqueottomane."11

15. See also German Interests in Polish UpperSilesin, paras. 45-52 infra, and Settlers of GermanOrigin in Territory Ceded by Germany to Poland,paras. 43-44 infra, regarding the transfer of propertyby Germany following the signature of the Armisticebut before the entry into force of the Treaty of Ver-sailles whereby the territory concerned was ceded toPoland.

(C) IDENTITY OF STATES

ADMINISTRATIVE DECISION NO. I (1927)

United States, Austria, HungaryClaims Commissioner (Parker) appointed under Special

Agreement of 26 November 1924Reports of International Arbitral Awards, vol. VI,

p. 20316. In 1921 the United States entered into two

Treaties with Austria and Hungary in order to securecertain rights to compensate the United States and itsnationals in respect of damage caused by the acts ofAustro-Hungary and her allies during the First WorldWar. In 1924 a Tripartite Agreement was signed,providing for the appointment of a Commissioner tosettle claims falling under the terms of the two Treaties.In the course of Administrative Decision No. I, layingdown certain general principles to govern the detailedawards, the Commissioner stated that:

"The Austria and the Hungary dealt with by theUnited States in entering into the Treaties of Viennaand of Budapest respectively not only bore little re-semblance either to the Government or the territoryof the Dual Monarchy with which the United Stateshad been at war but differed essentially from theformer Austrian Empire and the former Kingdomof Hungary."12

" Award of 24-27 July 1956, at pp. 67-8.12 R.I.A.A., vol. VI, at p. 210.

—moreover, he held that the latter two States had hadno international status. The Commissioner concluded,however, that under the Treaties of Vienna and ofBudapest, Austria and Hungary had agreed to pay com-pensation in respect of certain of the acts of the formerAustro-Hungarian Monarchy.13

CASE CONCERNING GERMAN REPARATIONS UNDER ARTICLE260 OF THE TREATY OF VERSAILLES (1924)

Germany v. Reparations Commissions

Arbitrator (Beichmann) appointed under Protocol of30 December 1922


17. In the course of this arbitration14 the Arbitratorfound that, although the preamble of the Treaties ofSt. Germain and Trianon stated that the former Austro-Hungarian Monarchy had ceased to exist, nevertheless,the Treaties were based on the supposition that Austriaand Hungary represented the former State, at least asregards the cession of territory.

18. See also the Ottoman Public Debt Arbitration,,15

in which the Arbitrator stated that: "En droit interna-tional, la Republique turque doit etre consideree commecontinuant la personnalite de fEmpire Ottoman."

(D) SUCCESSION TO TERRITORIAL CLAIMS

CASE OF CLIPPERTON ISLAND (1931)

Mexico v. France

Arbitrator (King of Italy) appointed under a SpecialAgreement of 2 March 1909Reports of International Arbitral Awards, vol. II ,

p. 1105

19. In this dispute between France and Mexicoregarding their rival claims to sovereignty over theIsland of Clipperton, Mexico contended that the Islandhad been discovered by Spanish sailors in the 16thcentury and that, by the law then in force, it had beengiven to Spain from whom it had passed to Mexico,as Spain's successor, in 1836.

20. The Arbitrator held that, even assuming the dis-covery to have been made by Spain, it would be nec-essary for Mexico to show that Spain had effectivelyexercised the right of incorporating the Island in herpossessions, but that Spain had not done so. SinceMexico had similarly failed to exercise any right ofsovereignty before the arrival of French sailors on theIsland, it was therefore a territorium nullius at thelatter date and the French claim to sovereignty, basedon effective occupation, was to be preferred. See alsoIsland of Palmas Case, paras. 31-32 infra.

(E) TRANSFER OF REAL RIGHTS OR INTERNATIONALSERVITUDES

CASE CONCERNING RIGHT OF PASSAGE OVER INDIANTERRITORY (MERITS) (1960)

Portugal v. India

International Court of Justice, I.C.J. Reports, 1960, p. 6

21. Portugal claimed before the International Courtthat she had a right of passage through interveningIndian territory to the extent necessary for the exercise

13 Ibid., p. 211.24 For other aspects of the Award see para. 5 supra.i° See para. 109 infra.


of her sovereignty over two small enclaves and thatIndia had refused to recognize the obligations imposedby this right.

22. In support of her claim Portugal relied in parton certain agreements concluded in the 18th centurybetween Portugal and the local Maratha ruler. Althoughthe Court found that the agreements concernedamounted only to a revenue grant, and not to a grantof sovereignty together with a right of passage, it ap-pears to have assumed that any such rights grantedwould have been binding on successor States.16 TheCourt found, however, that:

" . . . the situation underwent a change with theadvent of the British as sovereign of that part ofthe country in place of the Marathas. The Britishfound the Portuguese in occupation of the villages andexercising full and exclusive administrative authorityover them. They accepted the situation as they foundit and left the Portuguese in occupation of and inexercise of exclusive authority over, the villages.The Portuguese held themselves out as sovereignover the villages. The British did not, as successorsof the Marathas, themselves claim sovereignty, nordid they accord express recognition of Portuguesesovereignty, over them. The exclusive authority ofthe Portuguese over the villages was never broughtin question. Thus Portuguese sovereignty over thevillages was recognized by the British in fact andby implication and-was subsequently recognized byIndia. As a consequence the villages comprised inthe Maratha grant acquired the character of Portu-guese enclaves within Indian territory."17

23. Concerning the right of passage, the Courtreached the conclusion that:

" . . . with regard to private persons, civil officialsand goods in general there existed during the Britishand post-British periods a constant and uniformpractice allowing free passage between Daman andthe enclaves. This practice having continued over aperiod extending beyond a century and a quarterunaffected by the change of regime in respect of theintervening territory which occurred when Indiabecame independent, the Court is, in view of all thecircumstances of the case, satisfied that that practicewas accepted as law by the Parties and has given riseto a right and a correlative obligation/'18

In the case of armed forces and armed police, theCourt found that their passage had been dependent onthe discretionary power of the territorial sovereign andthat no right of passage as such existed in favour ofPortugal.

"The course of dealings established between thePortuguese and the British authorities with respectto the passage of these categories excludes the exist-ence of any such right. The practice that was estab-lished shows that, with regard to these categories,it was well understood that passage could take placeonly by permission of the British authorities. Thissituation continued during the post-British period."19

24. The Court held that India had not acted contraryto its obligations regarding the passage of private per-sons, since such passage was subject at all times toIndia's power of regulation and control.

161.C.]. Reports, 1960, at pp. 37-39." Ibid., at p. 39.18 Ibid., at p. 40.i» Ibid., at p. 43.

25. See also Case of the Free Zones of Upper Savoyand the District of Gex, paras. 34-35 infra, in whichthe Permanent Court of International Justice held thatobligations in the nature of real rights had been created,which attached to the District of St. Gingolph andremained binding upon the successor State after sove-reignty had passed from Sardinia to France.

II. State succession in relation to treaties

(A) SUCCESSION TO TREATY RIGHTS AND OBLIGATIONS

CASE CONCERNING RIGHTS OF NATIONALS OF UNITEDSTATES OF AMERICA IN MOROCCO ( 1 9 5 2 )

France v. United States

International Court of Justice, I.C.J. Reports 1952,p. 176

26. The United States contended that certain enact-ments made during the French Protectorate over Mo-rocco were inapplicable to United States nationalswithout its consent, by virtue of the consular jurisdictiongranted under Treaties between Morocco and theUnited States dating from before the establishmentof the Protectorate. Both parties assumed that suchTreaties subsisted.

27. Regarding the Treaty of Fez under which theProtectorate was established, the International Courtstated:

"Under this Treaty, Morocco remained a sovereignState but it made an arrangement of a contractualcharacter whereby France undertook to exercise cer-tain sovereign powers in the name and in behalfof Morocco, and, in principle, all of the internationalrelations of Morocco. France, in the exercise of thisfunction, is bound not only by the provisions of theTreaty of Fez, but also by all treaty obligations towhich Morocco had been subject before the Pro-tectorate and which have not since been terminatedor suspended by arrangement with the interestedState."20

28. The Court also implied that Treaties concludedby France pursuant to the powers which Morocco hadconferred on France by the Treaty of Fez would con-tinue to bind Morocco after the Protectorate ended.

TUNIS AND MOROCCO NATIONALITY DECREES ( 1 9 2 3 )

France, Great Britain

Permanent Court of International Justice, Series B,No. 4

29. In support of its contention that certain Decreesregulating nationality in Tunis and Morocco were notapplicable to British subjects, Great Britain relied oncertain Treaties concluded with Tunis and Moroccobefore the establishment of the French Protectoratesthere. Under these Treaties, of 1825 and 1856 respec-tively, British subjects enjoyed "a measure of extra-territoriality incompatible with the imposition of anothernationality".21 In reply, France contended that theTreaties concerned had lapsed by virtue of the doctrineclansula rebus sic stantibus, the capitulatory regimehaving lost its reason of existence with the setting upof a judicial system in conformity with French leg-islation.

20 I.C.J. Reports, 1952, at p. 188.21 P.C.I.J., Series B, No. 4, at p. 29.


30. The Court did not find it necessary to rule uponthis point, other than by stating that no pronouncementcould be made without recourse to the principles ofinternational law concerning the duration of the validityof treaties. The Court did, however, conclude that thequestion raised did not "by international law, fall solelywithin the domestic jurisdiction of a State".22 The Courtalso recognized that, so far as Morocco was concerned,Great Britain had continued to exercise capitulatoryrights in the French Protectorate of Morocco.23 Seealso Finnish Shipowners Case, paras. 106-107 infra.

(B) SUCCESSION TO TREATY RTGHTS AND OBLIGATIONS

RELATING TO TERRITORY

ISLAND OF PALMAS CASE ( 1 9 2 8 )

Netherlands v. United States

Arbitrator (Hubcr) appointed under a Special Agree-ment of 23 January 1925Reports of International Arbitral Awards, vol. II,

p. 82931. The Netherlands and the United States both

claimed sovereignty over the Island of Palmas, theclaim of the United States being based on the Treatyof 1898 in which Spain had ceded her rights of sove-reignty over the Philippines and the surrounding area,including the Island of Palmas, to the United States.

32. The Arbitrator agreed that the United Stateshad succeeded to such title as Spain had possessed andcould transfer, but held that the Spanish claim basedon discovery gave rise only to an inchoate title, whichcould not prevail over the title founded on the con-tinuous and peaceful display of sovereignty evidencedby the Netherlands.

CASE CONCERNING THE TEMPLE OF PREAH VIHEAR(CAMBODIA V. THAILAND) MERITS (1962)

Cambodia v. Thailand

International Court of Justice, I.C.J. Reports 1962, p. 633. This dispute between Cambodia and Thailand

regarding sovereignty over the Temple of Preah Vihearturned largely on the interpretation to be given to theproceedings of two frontier commissions established in1904 and 1907 under treaties between France, on behalfof Indo-China, including Cambodia, and Thailand. TheJudgement of the International Court was foundedon the succession by Cambodia to the rights grantedto France under the treaties in question.

CASE OF THE FREE ZONES OF UPPER SAVOY AND THEDISTRICT OF GEX ( 1 9 3 2 )

France v. Switzerland

Permanent Court of International Justice, Series A/BNo. 46.34. By a Treaty of 1816 between Sardinia and

Switzerland relating to the delimitation of the politicalfrontier between the two countries, restrictions wereplaced on the imposition of customs dues by Sardiniain the District of St. Gingolph. The Treaty was followedin 1829 by a manifesto of the Sardinian Court of Ac-counts which further described the restrictions placedon the District. After 1860, when Sardinia transferredthe Free Zone of Upper Savoy, including the District

22 ibid.23 Ibid., at p. 30.

of St. Gingolph, to France, France continued to observethe restrictions. However, in 1919 France suggested toSwitzerland that the regime established regarding theZones should be revised and an indication to that effectincorporated in the Versailles settlement. Accordinglyarticle 435 of the Treaty of Versailles contained a state-ment that France and Switzerland were to agree to anamendment to the status of the Zones. The question atissue between the parties was whether that status couldbe abolished, in the light of article 435, without theexpress consent of Switzerland.

35. The Court's Judgment upholding the need forSwitzerland's consent was based on the clear recognitionby France of the special status established during theperiod of Sardinian sovereignty in relation to the Dis-trict of St. Gingolph nnd on the nature of the rightscreated by international agreement, which attached tothe territory concerned.

"With particular regard to the zone of Saint-Gingoiph, the Court being of opinion that the Treatyof Turin of March 16th, 1816, has not been abrogatedby Article 435, paragraph 2, of the Treaty of Ver-sailles, with its Annexes, the same is true as regardsthe Manifesto of the Royal Sardinian Court of Ac-counts of September 9th, 1829. This Manifesto, more-over, which was issued in pursuance of royal orders,following upon the favourable reception by H.M. theKing of Sardinia of the request of the Canton ofValais based on Article 3 of the said Treaty of Turin,terminated an international dispute and settled, withbinding effect as regards the Kingdom of Sardinia,what was henceforward to be the law between theparties. The concord of wills thus represented by theManifesto confers on the delimitation of the zone ofSaint-Gingolph the character of a treaty stipulationwhich France must respect as Sardinia's successor inthe sovereignty over the territory in question."24

(C) NATURE OF TREATY OBLIGATION

CASE OF BRITISH INTERESTS IN SPANISH MOROCCO(1925)

Spain v. Great Britain

Arbitrator (Huber) appointed under a Special Agree-ment of 29 May 1923Reports of International Arbitral Awards, vol. II,

p. 614

36. Great Britain and Spain agreed to arbitrate anumber of disputes involving damage to the interests ofBritish nationals which had occurred in the SpanishZone of Morocco. One of these disputes concernedthe British Consul's house at Rio Martin. Under aTreaty concluded in 1783 between Great Britain andthe Maghzen of Morocco, the latter undertook to pro-vide a house for the British Consul at Rio Martin.The Consul subsequently occupied the house until 1914,although after 1895 only as a summer residence. In1896 the British diplomatic agent entered into negotia-tions for the exchange of the house at Rio Martin foranother in Tetuan. The Moroccan authorities agreedto this request, although no site was actually agreedupon by the British and Moroccan authorities until 1907.

37. Great Britain claimed that Spain, which hadlater obtained a Protectorate over part of Morocco,including Tetuan, had succeeded to the existing obliga-tions of the Moroccan authorities in respect of the house.Spain contended that the agreement reached between

24 P.C.I.J., Series A/B, No. 46, at p. 145.


1896 and 1907 was no more than a declaration andwas not binding upon the protecting State in the absenceof a Sherifian decree. The Arbitrator held that theexchange of correspondence between the British andMoroccan authorities showed a sufficiently clear agree-ment between them and that there was no need to in-quire into Moroccan constitutional law on the matter.

38. The Arbitrator held that Spain had succeeded,as protecting Power, to the obligations of the Maghzenin respect of the exchange of houses. The obligationhad been perfected inasmuch as it constituted a pactumde contrahendo and its executory nature did not renderit binding solely on the Maghzen, as Spain contended.

HI. State succession in relation to private rightsand concessions

(A) PRINCIPLE OF RESPECT FOR PRIVATE RIGHTS

SETTLERS OF GERMAN ORIGIN IN TERRITORY CEDED BYGERMANY TO POLAND ( 1 9 2 3 )

Germany, Poland

Permanent Court of International Justice, Series B,No. 6

39. The Council of the League of Nations requestedthe Permanent Court of International Justice to givean advisory opinion on the question whether or notthe Polish Government had acted in conformity withits international obligations in seeking to cancel, or inrefusing to recognize, certain contracts for the occupa-tion of land held by settlers of German origin who hadacquired Polish nationality in consequence of the trans-fer of territory from Germany to Poland.

40. The contracts, under which the settlers held landfrom the State, were of two kinds, both offering con-siderable security of tenure. The first, the Renten-gutsvertrdge, were special amortization contracts be-tween the Prussian Government and the tenant-pur-chaser which were concluded by an Auflassung, orformal declaration of the transfer of ownership. ThePolish Government refused to recognize any Renten-gutsvertrdge which had not been concluded by Auflas-sung before the Armistice with Germany on 11 Nov-ember 1918.

41. Upon examination of the provisions of Germanlaw, the Court determined that the Rentengutsvertrdgegave rise to vested rights enforceable against the vendoreven before the conclusion of an Auflassung. As regardsthe question of State succession, the Court rejectedthe view that the contracts were of a "personal" nature,binding only on the original parties, and that theRentengutsvertrdge were curtailed by the cession ofterritory.

"Private rights acquired under existing law do notcease on a change of sovereignty. No one denies thatthe German Civil Law, both substantive and adjec-tive, has continued without interruption to operatein the territory in question. It can hardly be main-tained that, although the law survives, private rightsacquired under it have perished. Such a contentionis based on no principle and would be contrary toan almost universal opinion and practice."25

42. The Court stated firmly that the new territorialsovereign was bound to respect private rights.

25 P.C.I.J., Series B, No. 6, at p. 36.

"The Court is here dealing with private rightsunder specific provisions of law and of treaty, andit suffices for the purposes of the present opinion tosay that even those who contest the existence ininternational law of a general principle of State suc-cession do not go so far as to maintain that privaterights including those acquired from the State asthe owner of the property are invalid as against asuccessor in sovereignty."26

43. Upon examination of the pertinent provisionsof the Minorities Treaty and of the Treaty of Ver-sailles, the Court held that Poland's actions were un-justified. Whilst the Peace Treaty did not "in termsformally announce the principle that, in the case of achange of sovereignty, private rights are to be re-spected . . . this principle is clearly recognized by theTreaty".27 The position was not affected in the opinionof the Court by the political motive originally con-nected with the Rentengutsvertrdge; they remainedcontracts under civil law. As regards the formal transferof ownership by Auflassung between 11 November 1918and the entry into force of the Treaty of Peace underwhich the territory was ceded, the Court held as follows :

"The settlers were already in legal possession ofthe lands in which they had invested their money,and to which they had already acquired rights en-forceable at law; and the Prussian State was notforbidden to perform the usual administrative actsunder its pre-existing contracts with private indi-viduals, especially where the delay in the perfor-mance of such acts had been due to the disturbedconditions arising from the war."28

44. The second class of contracts were leases(Pachtvertrdge) concluded prior to 11 November 1918and converted before the entry into force of the Treatyof Versailles into Rentengutsvertrdge by the GermanGovernment. The Court held that this exchange of con-tracts ". . . was a reasonable and proper operation inthe ordinary course of management of land".29 Accord-ingly, the Court held that the refusal of the PolishGovernment to recognize the transfer by the PrussianState could not be justified:

"As the Prussian State retained and continued toexercise its administrative and proprietary rights inthe ceded territory until this territory passed to Po-land under the Treaty of Peace, the only ground onwhich the position of Poland could be justified is,in the opinion of the Court, the contention that thegranting of the Rentengutsvertrdge was prohibitedby the provision in the Spa Protocol, by which theGerman Government engaged, while the Armisticelasted, not to take any measure that could diminishthe value of its domain, public or private, as a com-mon pledge to the Allies for the recovery of repara-tions. The Court thinks that in view of the connexionwhich has been shown to exist between the Pacht-vertrdge and the Rentengutsvertrdge, it would be anunreasonable straining of the prohibition in theProtocol to hold that it precluded the Prussian Statefrom granting, prior to the passing of the territoryto Poland, a Rentengutsvertrag to the holder of aPachtvertrag granted prior to the Armistice."30

26 Ibid.27 Ibid., at p. 38.28 Ibid., at p. 40.29 Ibid,, at p. 42.30 Ibid., at pp. 42-43.


GERMAN INTERESTS IN POLISH UPPER SILESIA (1926)

Germany v. Poland

Permanent Court of International Justice, Series A,No. 7.

45. Germany presented a claim before the Perma-nent Court of International Justice regarding certainGerman interests in the part of Upper Silesia ceded toPoland by Germany after the First World War. Theinterests included a factory at Chorzow which had beenoperated by a German company under a contract con-cluded with the German Government in 1915, underwhich the latter had retained ownership of the land,buildings and installations. In December 1919 the Ger-man Government sold its interests to a second, newlyestablished company, the shares of which were held bya third company of which the German Reich was thecreditor. The second company was entered as owner inthe local land registry in January 1920. The territoryhaving then been transferred to Poland, a Polish courtheld in July 1922, in reliance on article 256 of theTreaty of Versailles and the provisions of a Polish lawpassed in 1920 and extended to Polish Upper Silesiain 1922, that the registration was null and void. Theproperty rights were then registered in the name of thePolish Treasury and an agent of the Polish Govern-ment took over the operation of the factory.

46. Germany contended that the relevant provisionsof the 1920 Polish law, which declared void interestsacquired from the German Government after the dateof the Armistice, were contrary to the German-PolishConvention concerning Upper Silesia concluded atGeneva in 1922. The major part of the case wastherefore concerned with determining the compatibilityof these two instruments. Article 1 of the GenevaConvention stated that the law in force in UpperSilesia was to be maintained, subject to consequencesarising out of the transfer of sovereignty and modifica-tions thereby involved. Whilst Poland was accordinglypermitted to make certain changes in existing legisla-tion, a special procedure was laid down for settlingdisputes as to the suitability of a particular enactment.The Court held that:

"The reservation... in regard to consequencesarising out of the transfer of sovereignty and modifi-cations thereby involved, cannot, in the Court'sopinion, relate to laws such as that of July 14th,1920, but rather to constitution and public law provi-sions the maintenance of which would have beenincompatible with the transfer of sovereignty."31

47. The first section of the Geneva Convention wasdivided into three headings of which the third, entitled"Expropriation" set out the express conditions underwhich Poland might expropriate German-owned "un-dertakings belonging to the category of major interestsincluding mineral deposits and rural estates" (ar-ticle 6) . Regarding this section the Gourt held that:

". . . there can be no doubt that the expropriationallowed under Head III of the Convention is a dero-gation from the rule generally applied in regard tothe treatment of foreigners and the principle of re-spect for vested rights. As this derogation itself isstrictly in the nature of an exception, it is permissibleto conclude that no further derogation is allowed.Any measure affecting the property, rights and in-

terests of German subjects covered by Head III ofthe Convention, which is not justified on specialgrounds taking precedence over the Convention, andwhich oversteps the limits set by the generally ac-cepted principles of international law, is thereforeincompatible with the regime established under theConvention . . . It follows from these same principlesthat the only measures prohibited are those whichgenerally accepted international law does not sanc-tion in respect of foreigners; expropriation for rea-sons of public utility, judicial liquidation and similarmeasures are not affected by the Convention."32

48. In the opinion of the Court the Treaty of Ver-sailles had clearly recognized "the principle that, in theevent of a change of sovereignty, private rights must berespected".33

49. As regards the sale of the interests of the Ger-man Reich in 1919, after the Armistice Agreement andthe Treaty of Versailles, the Court held that:

"Germany undoubtedly retained until the actualtransfer of sovereignty the right to dispose of itsproperty, and only a misuse of this right couldendow an act of alienation with the character of abreach of the Treaty."34

50. Having determined that the sale by Germany ofher immediate interests in the factory was a genuineand bona fide transaction involving public property,the Court then held that the application to the Germancompany set up in 1919 of article 256 of the Treatyof Versailles35 (as Poland contended)

" . . . must, in accordance with the principles gov-erning State succession—principles maintained inthe Treaty of Versailles and based on considerationsof stability of legal rights—be construed in the lightof the law in force at the time when the transfer ofsovereignty took place."36

51. Since Germany had not owned the factory whensovereignty had been transferred, the company hadtherefore already acquired a right of ownership whichPoland was bound to respect, in accordance with theprinciple of respect for vested rights—

"a principle which, as the Court has already hadoccasion to observe, forms part of generally acceptedinternational law, [and] which, as regards this point,amongst others, constitutes the basis of the GenevaConvention".37

52. The Court also held that the operation of thefactory by the Polish Government was contrary to theprovisions of the Geneva Convention as regards thecompany which had previously run the factory.

(B) PRIVATE RIGHTS OVER LAND ACQUIRED FROM

NATIVE RULERSG. R. BURT (FIJIAN LAND CLAIMS) (1923)

United States v. Great Britain


31 P.C.I.J., Series A, No. 7, at p. 22.

32 Ibid.Mlbid., at p. 31.34 Ibid., at p. 30.35 This article provided for the transfer of public property to

the successor State.36 P.C.I.J., Series A, No. 7, at p. 41.37 Ibid., at p. 42.


Reports of International Arbitral Awards, vol. VI,p. 93.

53. In 1868 G. R. Burt, a United States citizen,purchased a tract of land in the Fiji Islands from thelocal paramount chief and from certain other sub-ordinate chiefs. The transaction was executed by meansof three deeds and a certificate. The following year theland was laid waste by an unruly tribe and Burt wasforced to evacuate the property. In 1874 the Fiji Islandswere ceded to Great Britain by Treaty. Article 4 ofthe Treaty provided that in cases where land wasnot occupied or required by the native tribes or had notbecome the bona fide property of a foreigner, title wasto vest in the British Crown. After the cession GreatBritain set up a board of land commissioners to deter-mine the validity of titles to land. Burt's claim beforethe board having failed, the claim was brought beforethe British-American Arbitral Tribunal.

54. The Tribunal found that:".. . the precise question before this Tribunal is

whether Great Britain, as the succeeding Power inthe islands under the deed of cession of 1874, failedin any respect to observe and carry out any obliga-tion toward Burt which it may be properly said,from the point of view of international law, to haveassumed. If Burt had at the time a valid title to thelands, it is plain that under all the circumstancesthe Government was bound to recognize and re-spect it."38

55. Great Britain argued that Burt had not acquireda valid title since the grant of land by the chiefs alonewas ineffective unless the express consent of a specialclass of "taukeis", defined as occupiers of the soil, wasobtained.

56. Since the chiefs had certainly assumed the rightto dispose of land as they chose and Great Britainherself, in accepting the deed of cession, had acted onthe theory that they were competent to convey title,the Tribunal held that Burt had obtained a valid titlewhich Great Britain, as the succeeding Power, wasbound to recognize.

ISAAC M. BROWER (FIJIAN LAND CLAIMS) (1923)

United States v. Great BritainGreat Britain-United States Arbitral Tribunal estab-

lished under a Special Agreement of 18 August 1910Reports of International Arbitral Awards, vol. VI,

p. 109

57. The Tribunal held that although the claimanthad gained a valid title from the local chief in ac-cordance with the principles laid down in the Burtcase,39 the islands which formed the subject of theclaim had only a speculative value. Only nominaldamages were awarded therefore against Great Britain,which had refused to recognize the claimant's title.

WEBSTER CLAIM (1925)


lished under a Special Agreement of 18 August 1910


58. Between 1836 and 1839 William Webster, aUnited States citizen, purchased large tracts of landin New Zealand from native chiefs and tribes. In1839 the British Government appointed a Lieutenant-Governor of New Zealand and directed him to proclaimthat Great Britain would "not acknowledge as validany title to land, which either has been or shall here-after be acquired in that country", unless derived fromand confirmed by the British Crown. Great Britainentered into a treaty of cession with the native chiefsand tribes in 1840.

59. Land commissions were appointed to examinetitles derived from the natives and to recommend Crowngrants in lieu thereof, up to a maximum of 2,500 acres,unless more was specially authorized. Webster sub-mitted a claim and was allowed 42,000 acres. The con-tention before the British-American Arbitral Tribunalwas that the various native grants should have beengiven effect as regards their entire extent, over andabove the 42,000 acres granted by the Crown.

60. The Tribunal found that the system of nativeland tenure in New Zealand prior to 1840 had no clearconcept regarding conveyance of title to land and wastherefore to be distinguished from the situation in theFiji Islands dealt with in the Burt case.40 No "specificcustomary law as to the manner or effect of... whole-sale alienations of communal property"41 had grownup. Thus although the chiefs, representing the politi-cal organization of the natives, were capable of con-veying sovereignty to Great Britain, something lessthan dominium, as understood in developed law, hadbeen conveyed to Webster as regards his land. Havingregard also to the indeterminate boundaries of theland forming part of the native grant and the exchangeof Webster's title in respect of 42,000 acres, undernative customary law, for a Crown grant, the Tribunaltherefore rejected Webster's claim.

ADOLPH G. STUDER CLAIM (1925)


lished under a Special Agreement of 18 August 1910Reports of International Arbitral Awards, vol. VI,

p. 149.

61. Between 1875 and 1877 Adolph G. Studer, aUnited States citizen, secured a cession of land fromthe Sultan of Muar in Malaya, under an instrumentexecuted in accordance with the common law systemof tenure. The Sultan died in 1877 and his dominionswere annexed by the Sultan of Johore. In 1885 GreatBritain assumed international responsibility for theGovernment of Johore.

62. The claim on behalf of Studer was that he hadbeen deprived of the benefits of his concessions owingto its non-recognition by the Sultan of Johore. TheTribunal found that the evidence presented did notsuffice to enable it to proceed to a decision and recom-mended that the case be referred to the local courtsin Johore. Regarding the construction of the deed ofcession, however, the Tribunal stated as follows:

38 R.I.A.A., vol. VI, at p. 98.3 9 See G. R. Burt (Fijian Land Claims), paras. 53-56 supra.

40 Loc. cit.41 R.I .A.A, vol. VI, at p. 168.


"The construction to be placed upon the grantitself has been debated at great length. On the onehand, we are asked to hold that the deed must beconstrued at its face value, in accordance with theprinciples of western systems of land tenure, as aconveyance of title in fee simple; on the other, itis argued that the instrument must be interpretedin the light of the Malay customary law, and thatso construed it has the effect of a mere permit toenter and cultivate, such permit being personal to thegrantor and lapsing with his death. The Tribunalhas not before it any authoritative statement of theMalay customary law applicable to the State of Muarin 1876 and 1877. The situation in this respect offersserious complications. We are dealing with a transi-tion period; and while it is plain that the nativecustomary law, whatever it may have been, ultimatelygave way to the white man's law, the point of timeat which it can fairly be said that the process hadadvanced far enough to embrace the possibility of agrant of this form and character is, in our opinion,hardly susceptible of determination on the recordbefore us. The evidence of actual practice at theperiod under consideration is fragmentary and in-conclusive."42

(C) PRINCIPLE OF RESPECT FOR CONCESSIONS GRANTEDBY PRECEDING STATE

CASE OF THE ZELTWEG-WOLFSBERG AND UNTERDRAU-BURG-WOELLAN RAILWAY (1933, 1934, 1938)

Austria, Yugoslavia, Railway Company Zelhveg-Woljsberg and Unterdrauburg-W oellan

Arbitrators (Guerrero, Mayer and Politis) appointedunder resolutions of the Council of the League ofNations of 26 and 30 May 1933

Reports of International Arbitral Awards, vol. I l l ,p. 1795

63. Arbitrators were appointed to settle a disputebetween the Railway Company and the States terri-torially concerned in order that agreements could beentered into regarding the future operation of the rail-way, in accordance with the Treaty of St. Germain.The Company had been given a ninety-year concessionin 1897 by the Austro-Hungarian Government; as a•result of the territorial changes brought about by the1919 Peace Settlement, the Zeltweg-Wolfsberg portionof the railway remained in Austria and the Unter-drauburg-Woellan portion came under Yugoslavsovereignty.

64. The case turned chiefly on the application tothe particular facts of the case of the provisions ofarticle 320 of the Treaty of St. Germain, providingfor the administrative and technical reorganization ofrailway lines situated in the territory of more than oneState as a result of the dismemberment of the formerAustro-Hungarian Monarchy, by means of an agree-ment between the owning company and the States con-cerned. As regards this reorganization, the Arbitratorswere of the opinion that:

"L'article 320 se borne d confirmer, ainsi que I'areconnu la jurisprudence anterieure^ ce principe dudroit public international que les droits tenus par unecompagnie privee, d'un acte de concession, ne saura-icnt etre mis a ncant ou Uses du seul fait que le

42 Ibid., at p. 152.

territoire sur lequel est assis le service public concedea change de nationalite .. ."4Z

CASE OF THE SOPRON-KOSZEG RAILWAY ( 1 9 2 9 )

Sopron-Koszeg Railway Company v. Austria andHungary

Arbitrators (Guerrero, Kalff and Mayer) appointed bydecision of the Council of the League of Nations of8 and 26 September 1928, under article 320 of theTreaty of St. Germain and article 304 of the Treatyof Trianon

Reports of International Arbitral Awards, vol. II,p. 961

65. In 1907 the Sopron-Koszeg Railway Companywas granted a ninety-year railway concession by theRoyal Hungarian Government. Under an agreementbetween the Government and the Company in 1909,the Government took over the operation of the railway,subject to paying to the Company an agreed share ofthe receipts. As a result of the territorial changesbrought about by the Treaties of St. Germain andTrianon, the middle section of the railway passedthrough Austria and the two ends remained in Hungary.

66. Article 320 of the Treaty of St. Germain andarticle 304 of the Treaty of Trianon provided that therailways of the former Austro-Hungarian Monarchywhich passed through several States were to be sub-ject to administrative and technical reorganization byagreement between the Company owning the railwayand the States concerned. Having reached agreementwith Hungary but having failed to reach agreementwith Austria, the Company brought the dispute beforethe Council of the League of Nations which appointedthree Arbitrators to determine the case.

67. As regards the validity vis-a-vis Austria of theconcession contract and the operating contract of 1909,the Arbitrators held that:

". . . en principe, les droits tenus par une compagnieprivee, d'un acte de concession, ne sauraient etre misa neant on Uses du seul fait que le territoire surlequel est assis le service public concede a changede nationalite; . . . la majorite des auteurs et les solu-tions de la pratique internationale les plus conformesa la conception moderne du droit des gens sont ence sens."44

68. However, in view of the events which had oc-curred since 1907 and 1909, and the provisions of theTreaties providing for reorganization of the Austro-Hungarian railways, the Arbitrators concluded that:

" . . . les dispositions contractuclles qui regissaientla Compagnie ... avant la guerre ne peuvent etredeclarces ni totalement invalidees par I'effet deschangements de souverainete qui ont affecte les terri-toires sieges de son entreprise, ni davantage totale-ment valides et executoires dans leur lettre et teneurjusqu'a la fin de la concession."45

69. Under the wide powers granted to them theArbitrators proceeded to lay down the details of thereorgnnization of the railway, including the purchaseof the entire line by Austria.

See also "Barcs-Pakrac Railway Case", Reports ofInternational Arbitral Awards, vol. I l l , p. 1569.

43 R.I.A.A., vol. I l l , at p. 1803.44 R.I.A.A., vol. II , at p. 967.45 Ibid., at p. 969.


CENTRAL RHODOPE FORESTS CASE (1931 ; 1933)

Greece v. Bulgaria

Arbitrator (Unden) appointed by the Council of theLeague of Nations under article 181 of the Treatyof Neuilly

Reports of International Arbitral Awards, vol. I l l ,p. 1389 and p. 1405

70. Article 181 of the Treaty of Neuilly of 1919provided that private rights guaranteed in earlierTreaties between Turkey and Bulgaria, Greece andSerbia, respectively, in 1913-1914, should not be affectedby transfers of territory made in execution of the laterTreaty. A dispute arose between Bulgaria and Greeceregarding the application of the article to certain forestssituated in territory ceded to Bulgaria by Turkey in1913.

71. Before the transfer, the Ottoman Governmenthad granted a concession for the exploitation of theforests to a certain company, the owners of whichbecame Greek nationals after the First World War.Bulgaria refused to recognize the concession, however,and granted a fresh concession to another company.

72. During preliminary hearings to determinewhether article 181 was applicable to the dispute, theArbitrator stated that:

"Un pri-ncipe general du droit commun interna-tional, celui du respect, sur un territoire annexe, desdroits prives regulierement acquis sous le regimeanterieur, se trouve expressement sanctionne par leTraite de Neuilly, suivant I'exemple des traites depaix de 1913-1914."™

He also declared that article 181 contained:". . . une consecration expresse du principe bien

connu du respect des droits acquis dans des territoirescedes, c'est-a-dire le renouvellement a la charge deI'Etat cessionnaire, d'une obligation incombant a I'Etatcedant."47

73. During the hearings on the merits it was arguedon behalf of Bulgaria that the concessionary rights weremerely personal obligations, giving cutting rights in theforests, and that Greece could not therefore bring aninternational claim in respect of them. The Arbitratorstated his opinion as follows:

"Dans le cas present il est question de Vinterpre-tation de I'article 181 du Traite de Neuilly et deI'article 10 du Traite de Constantinople. Le premierde ces deux articles parle de "droits prives" et lesecond de "droits acquis". Uarticle 11 du Traite deConstantinople cnonce, en outre, une regie specialeconcernant les "droits de propriete fonciere". II paraitneccssaire, en raison du contexte, d'interpreter lesdeux premieres expressions comme n'ctant paslimit ces aux droits reels. Or, si, apres I'annexion duterritoire dont il s'agit,. le Gouvernement bulgareavait promnlguc une hi annulant par example toutesles crcances acquises, avant I'annexion, sur les habi-tants du territoire, cettc hi surait du etre considereecomma incompatible avec I'article 10 du Traite deConstantinople.

"En ce qui concerne les droits de coupe, on pentdire que ceux-ci ne sont pas entiercment annulespuisque le droit subsidiaire a une indemnite, accordeaux ayants droit par les cedants en vertu des contrats

46 R.I.A.A., vol. I l l , at p. 1396.47 Ibid., at p. 1401.

de coupe, n'a pas, a ce que I'on sacha, ete abroge.Des doutes peuvent done surgir au sujet de la compe-tence du Gouvernement hellenique pour intervenir enfaveur des personnes possedant les droits de coupe.II est aussi bien possible que, d'apres le droit ottoman,les droits de coupe fussent si precaires qu'une cessionreguliere de I'immeuble a un nouveau proprietaireaurait eu pour effet Vimpossibilite de faire valoir ledroit de coupe envers ce dernier, en le transformanten un droit d'indemnite a I'cgard du cedant. Ce pointn'a pas ete entierement eclairci au cours du proces.Mais, dans le cas present, le Ministre bulgare deI'Agriculture a interdit, en pleine connaissance despretentions des reclamants, toute coupe ulterieure, eninvoquant pour seule raison le fait que les foretsseraient propriete d'Etat conformement a la hi fores-Here bulgare de 1904. Le Gouvernement bulgare adone pris une mesure directement dirigee contre lesdroits de coupe aussi et basee sur la these — nonlegitime — que la cession de ce genre de droits auraitetc inadmissible parce que les forets etaient proprieted'Etat. Dans ces conditions, il n'est guere douteuxque I'attitude du Gouvernement bulgare a I'egard desdroits de coupe ne fut incompatible avec le respectdes "droits acquis", impose a la Bulgarie par I'article10 du Traite de Constantinople."^

74. Having determined that the actions of Bulgariawere not in full accordance with the obligations im-posed by the Treaty of Neuilly and that restitutionto the original position would not be possible, theArbitrator ordered that Bulgaria should pay damagesbased on the value of the exploitation contracts at thedate of actual dispossession in 1918, together with anequitable rate of interest from that date.

(D) SUBROGATION OF SUCCESSOR STATE TO CONCES-SIONARY RIGHTS AND OBLIGATIONS OF PRECEDINGSTATE

THE MAVROMMATIS PALESTINE CONCESSIONS ( 1 9 2 4 )

Greece v. Great BritainPermanent Court of International lustice, Series A,

No. 2

75. Greece brought a claim against Great Britainbefore the Permanent Court of International Justiceon the ground that the Government of Palestine, andconsequently the British Government, had wrongfullyrefused to give full recognition to a number of con-cessionary contracts entered into by Mavrommatis, aGreek national, with the Ottoman authorities in Pales-tine, before Great Britain became the Mandatory onbehalf of the League of Nations. Article 26 of theMandate provided that disputes between the Mandatoryand another Member of the League of Nations regard-ing the "interpretation or the application" of the pro-visions of the Mandate should be submitted to thePermanent Court of International Justice if settlementcould not be reached by negotiation.

76. In determining whether or not it had jurisdictionthe Court considered the interpretation to be given toarticle 11 of the Mandate, which provided that "subjectto any international obligations accepted by the Man-datory", the Administration of Palestine should havefull powers to assume public ownership or control overpublic works, services or utilities. The Court held thatthe "international obligations accepted by the Manda-tory" included in this instance those contained in

48 Ibid., at p. 1426.


Protocol XII of the Treaty of Lausanne. This statedthat concessions granted by the Turkish Governmentor by any Turkish local authority before 29 October1914 were to be maintained by the Mandatory, subjectto a right, within a limited period, to purchase the con-cessions or to permit their readaptation to the changein circumstances. The case (and the Court's subsequentJudgment, The Mavrommatis Jerusalem Concessions)*9

was therefore largely concerned with the application ofthe provisions of Protocol XII to the group of con-cessions held by Mavrommatis which had been con-cluded before 29 October 1914 and the acts taken bythe Mandatory which affected those concessions.

77. Another group of concessions held by Mavrom-matis, however, were not duly signed by the Ottomanauthorities until 1916 and were never confirmed byimperial Firman, as Ottoman law required. Before con-cluding that it lacked jurisdiction under article 26 ofthe Mandate to consider these concessions, since theydid not satisfy the time limit specified in the Protocol,the Court stated that:

"It will suffice to observe that if on the one hand,Protocol XII being silent regarding concessions sub-sequent to October 29th, 1914, leaves intact thegeneral principle of subrogation, it is, on the otherhand, impossible to maintain that this principle fallswithin the international obligations contemplated inArticle II of the Mandate as interpreted in thisjudgment. The Administration of Palestine wouldbe bound to recognise the Jaffa concessions, not inconsequence of an obligation undertaken by the Man-datory, but in virtue of a general principle of interna-tional law to the application of which the obligationsentered into by the Mandatory created no excep-tion."50

LTCxIITHOUSES CONCESSIONS CASE ( 1 9 5 6 )

France v. GreeceArbitral Tribunal established under a Special Agreement

of 15 July 1931


Claim N~o. 8

78. This claim concerned the seizure by the GreekGovernment of the lighthouse receipts collected by theconcession holders, a French firm, and otherwise dueto the Ottoman Treasury, when Greek forces seizedSalonica in 1912. The initial measures of seizure weremodified by a provisional modus vivendi under whichthe Greek Treasury received the proceeds subject toa deduction by the firm of its operating costs. This ar-rangement, which was to be followed by a final settle-ment, continued after Greece acquired sovereignty overSalonica. So far as concerned acts during the periodof belligerent occupation, the Tribunal held that theclaim on behalf of the firm succeeded on the groundthat the lighthouse dues were not public enemy propertybut the property of the concessionnaires and thereforeprotected by the Hague Regulations of 1907. The posi-tion was different as regards the period after sovereigntyhad passed to Greece on 25 August 1913.

".. . A partir de cette date, la Grece jut subrogee,par Veffet retroactif retarde de Varticle 9 du ProtocoleXII du Traite de paix de Lausanne de 1923, a I'Em-

pire ottoman dans tous les droits et charges de cedernier par rapport a la concession."^1

79. Greece was therefore held to be entitled to theshare of the lighthouse receipts formerly payable to theOttoman Government, subject, however, to a previousassignment of those revenues which had been made bythe Ottoman Government to its creditors. This assign-ment operated to confer a private right which Greecewas bound to respect.

Claim No. 26

80. The French firm Collas and Michel presenteda claim on the ground that, between 1919 and 1929,they had only been able to collect dues expressed indrachmas, the value of which was falling, whilst theoriginal concession granted by Turkey in 1860 hadbeen based on gold values. The Tribunal held thatthe claim should succeed, at least to the extent that theGreek Government was bound by the principle of goodfaith to take the necessary steps to enable the firmto continue to operate the concessions on an equitablebasis.

". . . En effet, le principe de la bonne joi dansI'interpretation de la concession commandait qu'b,raison de la devaluation de la drachme et des per-turbations qui en resultaient pour I'equilibre financierde la concession, I'Etat successeur proceddt auxmesures necessaires pour assurer la continuation deVexploitation de la concession a des conditionsequitables."52

Counterclaim No. 181. Greece submitted a counterclaim for its share of

the lighthouse dues collected by Collas and Michelbetween 1913 and 1928. It was held that the plea mustfail on the ground that, although Greece had succeededto Turkey's position as the grantor State in respectof the lighthouse concession, her right to receive theshare of the lighthouse receipts formerly going toTurkey was subject to the latter's prior assignmentof that share to certain creditors, as guarantee forState loans raised in 1904, 1907 and 1913.53

Counterclaims Nos. 3-682. These counterclaims covered the period from

1915 to 1929 when Collas and Michel had collectedlighthouse dues although the Greek Government wasactually operating the lighthouses. It was held that thecounterclaim of the Greek Government should succeedto the extent that the firm had been relieved of operatingcosts.

Claim No. 27

83. The concession contracts entered into betweenTurkey and Collas and Michel provided that Turkeymight take over the lighthouse administration, subjectto the payment of compensation as agreed beforehandby the parties or as determined by arbitration. In 1929the Greek Government seized the lighthouse adminis-tration, without however paying compensation to thefirm.

84. The Tribunal held that the claim of Collas andMichel to compensation should succeed on the groundthat Greece had been subrogated to the position ofTurkey under the concession contracts and could there-

4» P.C.I.J., Series A, No. 5; see paras. 120-121 infra.5« P.C.I.J., Series A, No. 2, at p. 28.

51 Award dated 24-27 July 1956, at p. 96.MIbid., at pp. I l l and 112.53 See also Lighthouses Concessions Case, Counterclaim

No. 1, paras. 110-111 infra.


fore only take over the lighthouse administration underthe same conditions.

"Par sa mainmise sur le service des phares de laSociete a partir du ler Janvier 1929 sans paiement— on garantie de paiement — prealable d'une in-demnite, arretce dans des conditions qui en assiirentl'equite, le Gouvernetnent hellenique, en tant quesuccesseur dans la concession par subrogation, aaccompli un acte d'autorite directement contraire dune de ses clauses essentielles"5*

TV. State succession in relation to responsibilityfor delicts and breach of contract

ROBERT E. BROWN CASE (1923)

UNITED STATES V. GREAT BRITAIN



85. Robert E. Brown, a United States citizen, ap-plied in 1895 for a number of licences to prospect ona Transvaal gold field which had been made availableto the public by official proclamation. His applicationwas refused on the opening day on the ground that theGovernment had withdrawn the proclamation in pur-suance of a resolution of the Executive Council. Brownnevertheless pegged out 1,200 claims and began anaction in the High Court of the Transvaal demandingthe grant of a licence for the claims or, alternatively,£372,400 damages. The Court gave judgment inBrown's favour on the ground that the original procla-mation could not be withdrawn or set aside exceptby another duly published proclamation and orderedthat Brown should be granted the licences. The licencesthen issued, however, were for one month only andwere without the usual privilege of renewal. Browntherefore fell back on his claim for damages. His claimcame before the High Court which had been reorganizedby the Executive after the earlier judgment, in thecourse of a dispute between the Judiciary and theExecutive which had culminated in the dismissal ofthe Chief Justice who had delivered the major opinionand in the curtailment of the Court's powers to reviewthe constitutionality of official acts. The New Court heldthat Brown's claim for damages must be dismissed andthat he should bring a fresh claim. Brown was there-upon advised that, as a result of the changes in thepowers of the Judiciary, any fresh claim for reliefbefore the Transvaal courts would be fruitless.

86. After the annexation of the South African Re-public by Great Britain, Brown submitted his claimto the British authorities, which refused to acknowl-edge it on the ground that Brown had not exhaustedall local remedies. The claim was subsequently pre-sented before the British-American Arbitral Tribunal.

87. The Tribunal found that "Brown had substan-tial rights of a character entitling him to an interest inreal property or to damages for the deprivation there-of",55 and that he had been deprived of those rightsby the Government of the South African Republic ina manner amounting to a denial of justice under inter-national law.

54 Award dated 24-27 July 1956, at p. 133.55 R.I.A.A., vol. VI, at p. 128.

88. Dealing with the question whether a claim fordamages based on this denial of justice lay againstthe British Government, the Tribunal continued:

" . . . we are equally clear that this liability neverpassed to or was assumed by the British Govern-ment. Neither in the terms of peace granted at thetime of the surrender of the Boer Forces, nor inthe Proclamation of Annexation, can there be foundany provision referring to the assumption of liabili-ties of this nature. It should be borne in mind thatthis was simply a pending claim for damages againstcertain officials and had never become a liquidateddebt of the former State. Nor is there, properlyspeaking, any question of State succession here in-volved. The United States plants itself squarely ontwo propositions: first, that the British Govern-ment, by the acts of its own officials with respectto Brown's case, had become liable to him; and,secondly, that in some way a liability was imposedupon the British Government by reason of thepeculiar relation of suzerainty which is maintainedwith respect to the South African Republic."56

89. Having examined these contentions, the Tri-bunal concluded:

" . . . We have searched the record for any indica-tion that the British authorities did more than leavethis matter exactly where it stood when annexa-tion took place. They did not redress the -wrongwhich had been committed nor did they place anyobstacles in Brown's path; they took no action oneway or the other. No British official nor any Britishcourt undertook to deny Brown justice or perpe-tuate the wrong. The Attorney General of theColony, in his opinion, declared that the courtswere still open to the claimant. The contention ofthe American Agent amounts to an assertion thata succeeding State acquiring a territory by conquestwithout any undertaking to assume such liabilitiesis bound to take affirmative steps to right the wrongsdone by the former State. We cannot endorse thisdoctrine."57

90. The Tribunal also dismissed the claim based onthe suzerainty of the British Government over theSouth African Republic prior to annexation, on theground that the authority possessed by Great Britainat the time of the occurrences under consideration"fell far short of what would be required to make herresponsible for the wrong inflicted upon Brown",58

and did not entitle that country to interfere in theinternal affairs of the Republic.

HAWAIIAN CLAIMS (1925)

Great Britain v. United States



91. These claims were presented by Great Britainon behalf of a number of British subjects who hadbeen wrongfully imprisoned or forced to leave Hawaiiby the local authorities prior to the cession of theHawaiian Republic to the United States in 1898. Al-

5 6 Ibid., at p. 129.57 Ibid., at p. 130.53 Ibid.


though Great Britain tried to distinguish the RobertE. Brown case,59 on the ground that in cases of ces-sion, as opposed to conquest, the succeeding State wasliable for its predecessor's international delicts, theTribunal refused to accept the distinction and held thatthe claims failed in accordance with the Tribunal'sruling in the Robert E. Brown case:

"'It is contended on behalf of Great Britain thatthe Brown Case is to be distinguished because inthat case the South African Republic had come toan end through conquest, while in these cases therewas a voluntary cession by the Hawaiian Republicas shown (so it is said) by the recitals of the JointResolution of Annexation. We are unable to acceptthe distinction contended for. In the first place, itassumes a general principle of succession to liabilityfor delict, to which the case of succession of oneState to another through conquest would be anexception. We think there is no such principle. Itwas denied in the Brown Case and has never beencontended for to any such extent. The general state-ments of writers, with respect to succession to obliga-tions, have reference to changes of form of govern-ment, where the identity of the legal unit remains,to liability to observe treaties of the extinct State,to contractual liabilities, or at most to quasi-contractual liabilities. Even here, there is much con-troversy. The analogy of universal succession inprivate law, which is much relied on by those whoargue for a large measure of succession to liabilityfor obligations of the extinct State, even if admitted(and the aptness of the analogy is disputed), wouldmake against succession to liability for delicts. Nordo we see any valid reason for distinguishing termi-nation of a legal unit of international law throughconquest from termination by any other mode ofmerging in, or swallowing up by, some other legalunit. In either case the legal unit which did thewrong no longer exists, and legal liability for thewrong has been extinguished with it."60

ADMINISTRATIVE DECISION NO. 1 (1927)

United States, Austria, HungaryClaims Commissioner (Parker) appointed under Spe-

cial Agreement of 26 November 1924

Reports of International Arbitral Awards, vol VI,p. 203

92. In the course of this arbitration regarding theresponsibility of Austria and Hungary for the acts ofthe former Austro-Hungarian Monarchy, the Com-missioner stated that, having regard to the pertinentTreaties,

"It will not be profitable to examine the divergentviews maintained by European continental writerson international law as compared with those of GreatBritain and the United States with respect to lia-bility of a successor State for the obligations eitherex contractu or ex delicto of a dismembered State.It is, however, interesting to note in passing thatwhile one group maintains that such obligations passwith succession and are apportioned between thesuccessor States, and while the other group maintainsthat the obligations do not pass with succession,

59 See paras. 85-90 supra.eo R.I.A.A., vol. VI, at p. 158.

neither group maintains that a joint liability restsupon two or more successor States where the Ter-ritory of a dismembered State has been divided be-tween them."61

The Commissioner concluded that there was no obliga-tion on Austria and Hungary to pay double com-pensation, nor were they jointly liable.

LIGHTHOUSES CONCESSION CASE (1956)

France v. Greece


Award dated 24-27 July 1956Claim 12 a

93. In 1911 a local Turkish naval commandant re-moved, without prior notification, a buoy belonging tothe French lighthouse concession holders. The Com-pany protested to the Turkish Admiralty, which ap-parently admitted its responsibility but did not dis-charge the debt. The French Government claimed thatGreece had succeeded to Turkey's obligations in thematter, relying in support of its contention on certaininternational precedents, including the conditions underwhich France ceded the territory of Chandernagoreto India in 1951. Referring to this precedent, theTribunal stated:

"On comprend que, dans un tel cas de cessiongratuite et gracieuse d'un territoire a un autre Etat,I'Etat cedant tienne a etre libere des obligations quipeuvent encore lui incomber du chef de travaux deconstruction, d'amelioration, de reparation et autresordonnes pour des objets d'utilite publique et qui neprofiteront dorenavant qu'a I'Etat concessionnaire."62

94. The Tribunal continued that, in the case of thiscession by France and in that of the cession of theSulu Islands by Great Britain to the United States in1930,

". . . il s'agit... de situations toutes speciales, re-gies par des stipulations conventionnelles particu-Heres dont il n'est pas loisible de tirer des conclu-sions en favour de I'existence d'un principe generalde droit coutumier devant regir egalement d'autreshypotheses relevant d'une solution conventionnellepropre."63

95. The Arbitrators therefore held the precedentsinapplicable to the claim relating to the buoy. On themerits, they found that the removal of the buoy wasa normal measure of national security taken by theTurkish authorities, whose duty to pay compensationdepended on the terms of the concession in the lightof international administrative law. The Arbitratorscontinued :

"... Meme a sup poser que ladite obligation fiithors de doute, elle comptait parmi les charges dela Turquic vis-a-vis ". .. des socictes dans Icsquellesles capitaux des autres Puissances contractantes sontpre ponder ants", visees a V article 9 du Protocole XIIdu Traite de paix de Lausanne du 24 juillet 1923.Or la subrogation des Etats successeurs dans detellcs charges stipulee pour les territoires detachesde la Turquie en vertu dudit traite de paix n'auraiteffct, scion le meme article 9, qu'a dater de la mise

ei Ibid., at p. 210.62 Award of 24-27 July 1956, at p. 74.63 Ibid., at p. 74.


en vigueur du traite par lequel le transfert du terri-toire a ete stipule. Au point de vue purement gram-matical il serait possible d'interpreter cette stipu-lation comme comportant I'obligation pour I'Etatsuccesseur, in casu la Grece, de prendre a soncompte, des la date visee audit article 9, toutes lescharges de la Turquie vis-a-vis de la Societe, memecelles qui auraient leur origine dans des faits ante-rieurs a cette date, mais ce n'est certes pas dans cesens que la stipulation en question puisse etre inter-pretee. La date critique sert evidemment de termea la responsabilite turque et de point de depart a laresponsabilite hellenique en ce sens que tout ce quis'est passe avant la date critique et qui pent avoirengendre des charges vis-a-vis de la Societe conces-sionnaire continue a donner lieu a la responsabilitede I'Etat turc. On ne peut admettre que, en margede cette distribution conventionnelle des responsabi-lites selon le temps, quelque autre principe auto-nome et complementaire, emprunte a la doctrine ge-nerale relative a la succession d'Etats, puisse etreinvoque pour renverser les effets juridiques de laditedistribution des responsabilites selon le Protocole.

"La Grece ne saurait, des lors, etre reputee res-ponsable des dommages causes par Venlevement dela bouee du Vardor effectue en 1911 par les autoritesnavales ottomanes."^

Claims Nos. 11 and 4

96. These claims, both involving the responsibilityof Greece as successor State to the autonomous Stateof Crete, were dealt with together, although the Tri-bunal recognized that they required separate juridicalanalysis. Claim No. 11 arose out of the request of theCretan authorities in 1903 that the French Companyholding the concession should set up two new light-houses. Having obtained the approval of the TurkishAdmiralty the Company undertook a number of sur-veys. When the Ottoman Government finally agreed,after appreciable delay, to grant the necessary creditsfor the construction of the lighthouses, the CretanGovernment had changed its attitude and requested theCompany to substitute it for the Turkish Governmentand to pay to it the share of the lighthouse revenuesotherwise going to the latter Government. The Com-pany was unable to agree to these conditions, but failedto recover the cost of the expenditure it had under-taken, either from the Cretan authorities or fromGreece, after the latter had acquired sovereignty overCrete.

97. Claim No. 4 derived from a Cretan law of1908, ratifying an agreement whereby the Cretan Gov-ernment had granted a monopoly of cabotage to aGreek shipping company, with express exemption frompayment of lighthouse dues under the concession. TheGreek Government failed to stop this practice, and evencontinued it after Greece had itself succeeded to su-preme power on the island.

98. In both cases the Tribunal found it necessaryto consider the two Judgments given by the Interna-tional Court of Justice in 1934 and 1937 respectively,65

in order to determine the extent to which those Judg-ments dealt with the present claims and were bindingon the Tribunal as res judicata. In the course of anelaborate decision, the Tribunal distinguished the two

64 Ibid., at pp. 74-75.65 See at paras. 8-9 and 10-11 supra.

Judgments and held them not binding upon it. TheTribunal concluded as follows regarding the Judg-ment given in 1937:

"Dans son expose des motifs la Cour fait expres-sement coincider la date de la disparition des der-niers liens politiques turco-cretois avec celle de Vat-tribution de I'lle a la Grece, mais elle se refiise nette-ment a entrer dans un examen de la portee du regimede large autonomie octroye a Vile anterieurement a1913, sauf au point de vue de son importance pourle probleme specifique de "detachement" final.™ Parconsequent, les effets internationaux dudit regime delarge autonomie a tous autres points de vue ont eteecartes par la Cour en termes expres, et c'est pre-cisement ce regime d'autonomie qui joue un roleimportant dans la solution des controverses soule-vees par les reclamations Nos 11 et 4."67

99. The Tribunal then gave its decision on themerits of the two claims. As regards Claim No. 11,the Arbitrators held that responsibility was dividedbetween the Firm, the Cretan Government and theTurkish Government, and continued:

"Partant de cette repartition de la responsabilitepour les evenements de 1903 a 1908 entre les troisparties interessees d'alors, le Tribunal ne voit aucunmotif raisonnable pour charger apres coup de cetteresponsabilite, entiere ou meme partielle, la Grece,qui n'avait absolument rien a voir avec les agisse-ments desdites parties. Pas meme la part de laresponsabilite collective a impartir a I'Etat autonomede Crete pour les evenements de 1903 a 1908 nesaurait etre consideree comme etant devolue a laGrece. Une telle transmission de responsabilite nese justifie dans I'espece ni au point de vue specialde la succession finale de la Grece aux droits etcharges de la concession en 1923/1924, ne fut-ce quepour le motif que lesdits evenements se sont de-roules en dehors du jeu de la concession, ni aupoint de vue plus general de sa succession a lasouverainete territoriale sur la Crete en 1913.

"Les rapports entre cette succession territoriale,d'une part, et Vordre et le contre-ordre du Gouver-nement cretois de 1903 et de 1908, de I'autre, sonttrop eloignes pour justifier une decision qui fasseretomber sur la Grece et sur la seule Grece la res-ponsabilite collective d'actes et d'omissions d'autruiqui lui sont completement Strangers.

"Au surplus, il s'agit ici d'une reclamation quin'etait ni reconnue, quant a son bien-fonde, parI'Empire ottoman ou par la Crete, ni fixee par uneinstance competente quelconque, ni liquide ou aise-ment liquidable sur la base des faits ayant donnelieu a sa naissance."68

100. The Tribunal found that there were other con-siderations present in the case of Claim No. 4. Inthe first place, the action of Crete in granting exemp-tion from lighthouse dues was in direct violation ofthe concession which was binding on her, either asan autonomous State or as a territorial subdivision ofthe Ottoman Empire. Secondly, since the shipping com-pany concerned was registered in Greece, which hadclose relations with Crete, the former must have beenaware of what was being done. Lastly, the Greek

66 P.C.I.J., Series A / B , No. 71, p. 103.67 Award of 24-27 July 1956, at p. 80.Mlbid., at p. 81.


Government had itself continued the practice afteracquiring territorial sovereignty. The pertinent sectionof the Award, which has not yet been published inthe Reports of International Arbitral Awards, is setout at length below.

"Les considerations ci-dessus exposees sont-ellesegalement concluantes pour tenir la Grece respon-sable de la violation de la concession commise ante-rieurenient a ladite date et dont I'une de ses com-pagnies de navigation a indument profited

"Pour les raisons indiquees ci-dessus, sub A, apropos de la reclamation No. 12 une telle responsa-bilite ne saurait se fonder sur la succession de laGrece a la concession en vertu de la clause specialecontenue dans Varticle 9 du Protocole XII, annexeau Traite de paix de Lausanne. Elle ne pourraitresulter que d'une transmission de responsabilite envertu des regies de droit coutumier ou des principesgeneraux de droit regissant la succession des Etatsen general, he fait que la stipulation speciale duditProtocole XII a defini Vetendue et le point de de-part de la succession de la Grece dans les droits etcharges concessionnels de la Turquie n'empeche pas,par lui-meme, que la Grece puis-se etre considereecomme ayant succede egalement, mats a un autretitre, aux droits et charges correspondants de I'Etatautonome de Crete.

"Envisagee de ce point de vue, la question de latransmission de responsabilite en cas de changementterritorial presente toutes les difficult es d'une matierequi na pas encore suffisamment muri pour permettredes solutions certaines et egalement applicables atous les cas possibles. II n'est pas moins injusticed'admettre le principe de la transmission comme uneregie generate que de le denier. C'est plutot et essen-tiellement une question d'espece dont la solution de-pend de multiples facteurs concrets.

"S'agit-il d'obligations contractuelle s ou delictuelles— de droit prive ou de droit public — reconnuesou non reconnues — liquides ou non liquides — odieu-ses ou non odieuses? S'agit-il d'un cas de demem-brement total d'un Etat preexistant, de la secessiond'une colonie ou d'une partie d'un Etat, ou s'agit-ilplutot de la fusion de deux Etats preccdemmentindependants, de Vine orp oration d'un Etat dans unautre? Jusqu'a quel point y a-t-il lieu, dans cettederniere hypothese, en vue de resoudre le probleme,de tenir compte des relations plus ou moins etroitesentre I'Etat incorporant et I'Etat incorpore, du ca-ractere volontaire ou non volontaire de leur reunion?

"II se pent qu'une solution parfaitement adequateaux elements essentiels d'une hypothese determineese revele tout a fait inadequate a ceux d'une autre.II est impossible de formuler une solution generaleet identique pour toutes les hypotheses imaginablesde succession territoriale et toute tentative de for-muler une telle solution identique doit necessaire-ment echouer sur Vextreme diversite des cas d'es-pece. C'est pourquoi le Tribunal n'attache pasa"importance decisive aux rares precedents dispa-rates de la jurisprudence internationale ou nationaleet n'accepte comme concluants, en leur generahte,ni le jugevnent de la Cour hellenique pour les tiesde la Mer Egee de 1924 (No 27) [Themis, vol. 35,p. 294], cite dans I'Annual Digest of Public Inter-national Lazv Cases 1923/1924, No 36, reconnaissantla transmission de responsabilite a la Grece meme en

matiere de dettes purement delictuelles, ni ceux deVAmerican and British Claims Arbitration Tribunaldes 23 novembre 1923 et 10 novembre 1925, la de-niant dans les cas comparables de I'annexion a laGrande-Bretagne par la force des armes de I'Etatdu Transvaal et de Vine orp oration aux Etats-Unisde Varchipel de Hawaii. La diversite des hypothesespossibles de succession territoriale, les considera-tions politiques qui souvent president a la solutiondes problemes juridiques y relatifs et la rarete desdecisions arbitrages ou judiciaires qui resolvent leprobleme d'une maniere vraiment nette et sans equi-voque a la suite d'une argumentation convaincanteexpliquent tant les flottements de la pratique inter-nationale que Vetat chaotique de la doctrine.

"Dans le cas d'espece, il s'agit de la violationd'une clause contractuelle par le pouvoir legislatifd'un Etat insulaire autonome dont la populationavait durant des dizaines d'annees passionncmentaspire, meme par la force des armes, a s'unir a laGrece, consideree comme mere patrie, violation re-connue par ledit Etat lui-meme comme constituantune infraction au contrat de concession, realisee enfaveur d'une cotnpagnie de navigation ressortissanta ladite mere patrie, endossee par cette dernierecomme s-i cette infraction etait reguliere et finale-ment maintenue par elle, meme apres Vacquisitionde la souverainete territoriale sur Vile en question.

"Dans de telles conditions, le Tribunal ne pentarriver qu'd la conclusion que la Grece, ayant faitsienne la conduite illegale de la Crete dans son passerecent d'Etat autonome, est tenue, en qualite d'Etatsuccesseur, de prendre a la charge les consequencesfinancieres de I'infraction au contrat de concession.Sinon, la violation avouee d'un contrat commise parVun des deux Etats lies par un passe et un destincommuns, de Vassentiment de Vautre, auraii, au casde leur fusion, comme consequence foncierement in-just e d'aneantir une responsabilite financiere certaineet de sacrifier les droits incontestables d'une societeprivee concessionnaire a un soi-disant principe ge-neral de non-transmission de dettes en cas de suc-cession territoriale, qui en realite n'existe pas coymneprincipe general et absolu. Dans ce cas-ci, le Gou-vernement hellenique a a bon droit commence parreconnoitre lui-meme sa responsabilite.

"Dans les developpements qui precedent, le Tri-bunal est parti de la premisse que les actes des auto-rites cretoises de 1908 constituent la violation d'uneclause contractuelle. Le Tribunal tient a ajouter aces developpements argumenti causa que meme siVon considerait la dette ainsi creee par la violationd'une clause contractuelle comme une dette delic-tuelle ou quasi delictuelle a raison de son originedans un acte illicite de I'Etat, la conclusion ri'en se-rait pas diffcrente. La these, plutot doctrinale quejurisprudcntielle, selon laquelle il ne saurait jamaisetre question de transmission — ou plus correctement:de transition, puisqu'il ne s'agit pas ici d'effets d'actesdc volonte humaine, niais plutot de consequencesautomatiques et de plein droit de changements terri-toriaux — a"obligations delictuelles a I'Etat successeurn'est pas, dans sa generalite, bien fondee. Ici encorela solution devra dependre des traits particuliers achaque cas d'espece. Une obligation creee par undclit international proprement dit, commis en viola-tion directe du droit des gens, tel que Venvahisse-ment d'un tcrritoire neutre ou la destruction arbi-


traire d'un navire exempt du droit de prise, est detoute autre nature qu'une obligation qui prend sonorigine dans le domaine du droit prive ou du droitadministrate et qui ne donne naissance a une recla-mation Internationale qu'a la suite d'un deni dejustice. L'hypothese de Vunion volontaire de deuxEtats independants en un Etat unitaire ou federatifdiffere essentiellement de celle de Vannexion d'unEtat a un autre par la force des armes. Le demem-brement d'un Etat unitaire en deux ou plusieursEtats nouveaux presente des traits caracteristiquesqui different de ceux inherents a la secession d'unecolonie de la mere patrie comme un nouvel Etat inde-pendant. Toutes ces differences ne peuvent pas nepas exercer une influence decisive sur la solutiondu probleme de la succession d'Etats meme en obli-gations delictuelles. Quelle justice, ou meme quellelogique juridique y aurait-il, par exemple dans l'hy-pothese d'un delit international commis contre uneautre Puissance par un Etat qui ulterieurement sescinde en deux Etats nouveaux independants, a con-siderer ces derniers comme delies d'une obligationinter national e de reparation qui aurait sans aucundoute possible pese sur I'Etat ancien predecesseur,auteur du delit? Certaines tendances dans la doctrinenecessitent done clairement une reconsideration araison de la nature differente des obligations delic-tuelles possibles et de la diver site des hypothesespossibles de succession territoriale.

"L'argument doctrinal qui est quelquefois invoquea I'appui de la theorie de la non-transmission dedettes delictuelles ou quasi delictuelles par certainsauteurs de langue allemande, a savoir que ces dettespresenteraient un caractere "au plus haut degre per-sonnel" (hochstpersonlich) n'a aucune force convain-cante. Si cet argument formulait en verite un prin-cipe general de droit, il devrait egalement jouer etau meme titre dans le droit civil, mais il est loind'en etre ainsi. Bien au contraire, les dettes delic-tuelles de personnes privies, qui presenter aient exac-tement le meme caractere "hautement personnel",passent gcneralement aux heritiers. Ce n'est pas adire que les principes de droit prive soient applica-bles comme tels en matiere de succession d'Etats,mais seulement que le seul argument qui soit quel-quefois invoque pour nier la transmission de dettesdelictuelles n'a pas de valeur.

"Le Tribunal estime par consequent que, contrai-rement a la reclamation No 11, la reclamation No 4,qui au surplus n'a rien d'odieux pour la Grece et estsusceptible de liquidation aisee, doit etre admise."69

Claim No. 1

101. The Tribunal upheld this claim presented byCollas and Michel in respect of the non-payment ofthe lighthouse dues by ships which had been requisi-tioned by Greece during the occupation of Turkishterritory and which had continued not to pay evenafter the territory concerned had passed to Greece.Greece argued that no dues were required under theconcession under a clause exempting warships "pro-perly so called." It was held that this provision didnot apply to requisitioned ships and that Greece wastherefore liable for having acted in violation of theconcession. See also Lighthouses Concession Case,Claim No. 27, paras 83-84, supra.

69 Ibid., at pp. 82-4.

V. State succession in relation to public propertyand public debts, including apportionment ofdebts and revenue

(A) STATE SUCCESSION IN RELATION TO PUBLICPROPERTY

APPEAL FROM A JUDGMENT OF THE HUNGARO-CZECHOSLOVAK MIXED ARBITRAL TRIBUNAL (THEPETER PAZMANY UNIVERSITY V. THE STATE OFCZECHOSLOVAKIA) ( 1 9 3 3 ) , HUNGARY V. CZECHO-SLOVAKIA

Permanent Court of International Justice, Series A/BNo. 61

102. Czechoslovakia appealed to the PermanentCourt of International Justice against a judgmentgiven by the Hungaro-Czechoslovak Mixed ArbitralTribunal, in which it had been held that Czechoslo-vakia should return certain landed property, situatedin territory transferred from the former Austro-Hungarian Monarchy in Czechoslovakia, to the PeterPazmany University of Budapest.

103. The Government of Czechoslovakia arguedbefore the Permanent Court that the University ofBudapest lacked legal capacity to pursue its claim, itspersonality having been merged with that of the Hun-garian State; such property as it might own was there-fore public in character and could be retained by Cze-choslovakia as the successor State. The PermanentCourt, however, whilst stating that article 191, para-graph 1, of the Treaty of Trianon,70 which providedfor the transfer of public property to the successorState, "applies the principle of the generally acceptedlaw of State succession",71 found that the Universityhad a juridical personality independent of that of theHungarian State and accordingly upheld its claim forthe restoration of its properties as a private body.

CESSION OF VESSELS AND TUGS FOR NAVIGATION ONTHE DANUBE (1921)

Allied Powers (Czechoslovakia, Greece, Rumania,Serb-Croat-Slovene Kingdom); Germany, Austria-Hungary and Bulgaria.

Arbitrator (Hines) appointed under Treaty of Ver-sailles, article 339; article 300 of Treaty of St.Germain; article 284 of Treaty of Trianon andarticle 228 of Treaty of Neuilly-sur-Seine

Reports of International Arbitral Awards, vol. I, p. 97

104. The above-mentioned articles provided for thecession of vessels and tugs by Germany, Austria, Hun-gary and Bulgaria to the Allied Powers, according tothe amounts and specifications determined by an Arbi-trator designated by the United States. The Arbitratorwas also empowered to decide questions relating tovessels whose ownership or nationality was in dispute.The Award given dealt largely with the applicationof the laws of war and of the particular articles of thePeace Treaties relating to shipping seized by the AlliedPowers during October and November 1918.

105. In the course of the proceedings Czechoslovakiapresented a claim to a proportion of the property of

7 0 "States to which territory of the former Austro-HungarianMonarchy is transferred and States arising from the dismem-berment of that Monarchy shall acquire all property and pos-sessions situated within their territories belonging to the formeror existing Hungarian Government."

7 1 P.C.I.J., Series A / B , No. 61, at p. 237.


certain shipping companies which the former AustrianEmpire and Hungarian Monarchy had either owned,in whole or in part, or subsidized, on the ground that"these interests were bought with money obtained fromall the countries forming parts of the former AustrianEmpire and of the former Hungarian Monarchy, andthat such countries contributed thereto in proportionto the taxes paid by them, and therefore, are to thesame proportionate extent the owners of the property".72

Austria and Hungary argued that Czechoslovakia hadno rights to succeed to property except those grantedunder the Treaties of St. Germain and Trianon, whichconfined Czechoslovakia's rights of succession to Stateproperty situated in Czechoslovakia. The Arbitrator heldthat he lacked jurisdiction under the treaty provisionsto consider Czechoslovakia's claim.

CLAIM OF FINNISH SHIPOWNERS AGAINST GREAT BRITAININ RESPECT OF THE USE OF CERTAIN FINNISH VESSELSDURING THE WAR ( 1 9 3 4 )

Finland v. Great Britain

Arbitrator (Bagge) appointed under a Special Agree-ment of 30 September 1932

Reports of International Arbitral Awards, vol. I l l ,p. 1479

106. During 1916 and 1917 thirteen ships belongingto Finnish shipowners were used by the British Govern-ment, having been handed over to the British authoritiesby the Russian Government under wartime agreementsentered into between the two States. After the war,when Finland became independent, the shipownersclaimed payment for the ships used, including com-pensation for three ships which had been sunk. TheBritish Board set up to deal with such claims dismissedthe application on the ground that the requisition hadbeen carried out by Russia and not by Great Britain.The Finnish Government referred the matter to theCouncil of the League of Nations, which recommendedthat the preliminary question of whether or not themunicipal remedies available under English law hadbeen exhausted should be submitted to arbitration.

107. In the course of the arbitral proceedings itwas argued that the Finnish Government had succeededto the position of the Russian Government under thewartime agreements with Great Britain, under whichGreat Britain had agreed to pay Russia at official charterrates, as regards ships over which the Finnish Statehad become sovereign and which belonged to personswho had become Finnish nationals. This argument wasapparently accepted by the Arbitrator, although he didnot find it necessary to give an express ruling on thisaspect in reaching the conclusion that the Finnish ship-owners had in fact exhausted the means of recourseavailable to them under English law.

(B) STATE SUCCESSION IN RELATION TO THE PUBLIC

DEBT

OTTOMAN PUBLIC DEBT ARBITRATION ( 1 9 2 5 )

Bulgaria, Iraq, Palestine, Transjordan, Greece, Italyand Turkey

Arbitrator (Borel) appointed under articles 46 and 47of the Treaty of Lausanne, 1923, by the Council ofthe League of Nations


108. The Treaty of Lausanne of 1923 provided forthe partition of the Ottoman public debt betweenTurkey, the newly created States which had formed partof the Ottoman Empire, and the States which hadreceived territory, formerly within the Ottoman Empire,either after the Balkan Wars or after the First WorldWar, according to the proportion of the total revenueof each of the ceded territories to the average totalrevenue of the Ottoman Empire during the financialyears 1910-1912.

109. In the course of the arbitration regarding theapplication of the provisions of the Treaty, Iraq, Pales-tine and Transjordan argued that there was no prin-ciple of international law requiring States acquiringterritory to take over a share of the public debt; theTreaty of Lausanne had therefore defined the propor-tion to be borne by such States as a treaty obligation,and any excess was to be met by Turkey. The Arbi-trator stated his opinion as follows:

" . . . il n'est pas possible, malgre les precedentsdeja exist ants, de dire que la Puissance cessionnaired'un territoire est, de plein droit, tenue d'une partcorrespondante de la dette publique de I'Etat dontil faisait partie jusqu'alors. La solution du problemeici souleve est a chercher dans le Traite meme, et, d>I'egard de la D.P.O., la situation juridique de laTurquie n'est nullement identique a celle des autresEtats interesses. En droit international, la Republiqueturque doit etre consider ee comme continuant lapersonnalite de VEmpire ottoman. C'est a ce pointde vue qu'evidemment le Traite se place., preuve ensoient les articles 15, 16, 17, 18 et 20, qui n'auraientguere de sens si, aux yeux des Hautes Parties con-tractantes, la Turquie e'tait un Etat nouveau, au inemclitre que I'Irak ou la Syrie. La raison d'etre de I'article99 du Traite n'est pas celle qu'a indiquce, lors des de-bats, le Representant du Gouvernement turc. Elle re-side dans le fait que la guerre a etc consider ee commeayant mis fin, cntre Puissances belliger antes, a toutesconventions autres que celles dont le trait particulierest de dcployer leurs effets preciscnient an coursdes hostilites; et la declaration formeUe faite a Lau-sanne par M. Bomfard (Actes de la Conference deLausanne, lere serie, Tome III, p. 221) prouve quele point de vue auquel se place la Turquie n'a pasetc admis par les autres Puissances signataires duTraite. La D.P.O. est sa dette, dont elle n'est libereeque dans la mesure oil le Traite I'en decharge pouren grever d'autres Etats (article 46, alinea 2)."73

LIGHTHOUSES CONCESSION CASE ( 1 9 5 6 )

France v. Greece



Counterclaim No. I7 4

110. Greece submitted a counterclaim for its shareof the lighthouse dues collected by the French con-cession holders, Collas and Michel, between 1913 and

72 R.I.A.A., vol. I, at p. 120.

™ R.I.A.A., vol. I, at p. 573.74 See also Lighthouses Concession Case, Counterclaim No.

1, para. 81, supra.


1928. It was held that the plea must fail on the groundthat, although Greece had succeeded to Turkey's po-sition as the grantor State in respect of the lighthouseconcession, her right to receive the share of the light-house receipts formerly going to Turkey was subjectto the latter's prior assignment of that share to certaincreditors, as guarantee for State loans raised in 1904,1907 and 1913. The loans in question had been main-tained by the Treaty of Lausanne, and Greece wasamongst the successor States called upon to repaythem.

"Le maintien des avances et leur repartition entrela Turquie et les Etats successeurs etaient en accordcomplet avec les principes generaux du droit interna-tional public commun, prescrivant le respect des droitspatrimoniaux acquis en cas de changements terri-toriaux. ha seule question douteuse dans ce domaineest celle de savoir si un droit patrimonial particuliercompte parmi ces droits acquis. Le Tribunal n'hesitepas, toutefois, a considerer comme tels des droitsdecoulant d'un contrat d'emprunt, tel que les contratsprecites, conclus entre un Etat et une ou plusieurspersonnes privees."™

111. The Treaty of Lausanne had made certainchanges in the method and rate of repayment of theloans, but in all other respects "les contrats continuentd'etre regis par leur propre loi".76 Default on the partof a successor State in making repayment in accord-ance with the Treaty provisions (as had occurred inthe case of Greece) ". . . quelle qu'en puisse avoir etela raison, n'a eu d'autre effet que de maintenir lesdroits et obligations preexistants dans leur teneur pri-mitive."™

(C) APPORTIONMENT OF THE PUBLIC DEBT AND

REVENUE

LIGHTHOUSES CONCESSION CASE ( 1 9 5 6 )

France v. Greece



Claim No. 6>77

112. During its decision relating to this Claim theTribunal considered the question of the basis for thedivision of lighthouse receipts between Greece andTurkey according either to the proportion of the formerOttoman coastline held by Greece, or according to theplace of collection.

". . . Le Tribunal adopte la derniere solution. Rienne suggere en effet que I'article 9 du Protocole XIIde Lausanne ait envisage une methode de repartitiondes droits et charges de la concession parmi les Etatssuccesseurs autre que celle qui consiste a s'adapter ala division nouvelle des territoires turcs en unitesgeographiques nationales distinctes. On pent constaterainsi que la repartition des droits ct charges resultantde la concession obcit a d'autres principes qu'a ceuxqui ont ete appliques a la repartition des dettes."78

ADMINISTRATIVE DECISION NO. I ( 1 9 2 7 )

United States, Austria, Hungary

Claims Commissioner (Parker) appointed under SpecialAgreement of 26 November 1924Reports of International Arbitral Awards, vol. VI,

p. 203

113. In the course of this arbitration79 regardingthe payment of compensation by Austria and Hungaryfor the damage caused to United States property bythe former Austro-Hungarian Dual Monarchy duringthe First World War, the Commissioner held thatcompensation should be borne as to 63.6 per cent byAustria and as to 34.6 per cent by Hungary. It wasupon this basis that the former Austrian Empire andthe former Kingdom of Hungary had apportioned thejoint expenditures of the Austro-Hungarian Dual Mon-archy. This ratio of apportionment was also that pro-visionally adopted by the Reparations Commission setup under the Treaties of St. Germain and Trianon. Seealso Cession of Vessels and Tugs for Navigation on theDanube, paras. 104-105. supra.

VI. State succession in relation to the legal systemof the preceding State

CENTRAL RIIODOPE FORESTS CASE (1931: 1933)

GREECE V. BULGARIA

Arbitrator (Undcn) appointed by the Council of theLeague of Nations under article 181 of the Treatyof Neuilly

Reports of International Arbitral Awards, vol. I l l , p.1389 and p. 1405

114. In the course of this arbitration80 Bulgaria con-tended that the official certificates issued by the Turkishauthorities to Greek concession holders in 1913 wereinvalid as the Ottoman Empire no longer exercisedauthority over the territory in question at that date.The arbitrator held that:

"L3engagement assume par la Bulgarie de respecterles Hires officiels emanant des autorites ottomanesimplique I3obligation de reconnoitre les certificatsde proprictc dunient emis par I'autorite ottomanecompctcntc sur la base du registre foncier hire danslequcl les hnmeublcs etaient inscrits.3381

GERMAN INTERESTS IN POLISH UPPER SILESIA ( 1 9 2 6 )

Germany v. Poland

Permanent Court of International Justice, Series A,No. 7115. In the course of this case between Germany

and Poland82 the Permanent Court held that restrictionsimposed by treaty on Poland's legislative authority inthe ceded territory could not apply to "constitutionaland public law provisions the maintenance of whichwould have been incompatible with the transfer of sove-reignty".83 See also Settlers of German Origin in Ter-ritory Ceded by Germany to Poland, paras. 39-44, supra.

™ Award dated 24-27 July 1956, at p. 122.7« Ibid., at p. 123.7 7 See also Lighthouses Concession Case, Claim No. 8,

paras. 78-79, supra.7 8 Award dated 24-27 July 1956, at p. 96.

7 9 See also para. 16, supra.8 0 See also paras. 70-74, supra.si R.I.A.A., vol. I l l , at p. 1427.8 2 See also paras. 45-52, supra.8 3 P.C.I.J., Series A, No. 7, at p. 22.


VII. State succession in relation to nationality

ACQUISITION OF POLISH NATIONALITY CASE (1924)

GERMANY V. POLAND

Arbitrator (Kaeckenbeeck) appointed under a Protocolof 15 April 1934

Reports of International Arbitral Awards, vol. I, p. 401

116. The Treaty of 1919 between the Allied Powersand Poland and article 91 of the Treaty of Versaillesprovided for the acquisition of Polish nationality byGerman nationals "habitually resident" in Poland afterthe cession of territory which followed the First WorldWar. After a dispute had arisen as to the interpretationof the term "habitually resident", the Permanent Courtof International Justice stated in an Advisory Opinion84

that the phrase "habitually resident" (or residence) wasto be interpreted by reference to the habitual residenceof the parents at the date of birth of the person con-cerned, and not by reference to the habitual residenceof the parents at the date when the Treaty with Polandcame into effect. Further difficulties arose, however, asto the practical application of the principle laid downby the Permanent Court and the Council of the Leagueof Nations invited the parties to place their disputesas to questions of interpretation before the Presidentof the Upper Silesian Arbitral Tribunal, to whom fullarbitral powers were given.

117. Amongst the various points of detail raisedfor decision was whether the term "habitual residence"(domicile) was to be denned by reference to the wholeof Poland or only by reference to the territory cededby Germany to Poland. The Arbitrator found that,in the absence of any treaty stipulation based on thelatter interpretation, the requirement was to be deter-mined by reference to the full extent of Polish territory.

118. The Treaties concerned provided that personswho would otherwise have become Polish nationalsmight opt for another nationality. Germany contendedthat those who opted for German nationality mightretain their residence in Poland.

"II jaut admettre . . . qu'un Etat cessionnaire a nor-tnalement le droit d'exiger I'emigration des habitantsdu territoire cede qui ont opte en javeur du pays

cedant. Ce principe, consacre par la pratique Inter-nationale, et expressement admis par les meilleursauteurs; se trouve a la base meme des dispositionsconccrnant I'option inserees dans les recents Traitesde

s* P.C.I.J., Series B, No. 7.

119. It was therefore held that the suppressionof Poland's right to require the emigration of thoseopting for another nationality would have been so ex-ceptional as to require an express treaty provision. Sincethe Treaties concerned contained no strict stipulationbut only, at most, a temporary suspension of Poland'sright to demand emigration, Poland was entitled toorder the optants to leave at the end of the specifiedperiod.

T H E MAVROMMATIS JERUSALEM CONCESSIONS (1925)

GREECE V. GREAT BRITAIN

Permanent Court of International Justice,Series A, No. 5

120. After its decision in 192486 regarding the con-cessions granted to Mavrommatis by the Ottoman au-thorities before Great Britain became the Mandatoryin Palestine, the Permanent Court of InternationalJustice was asked to consider an objection raised byGreat Britain to the effect that, since Mavrommatiswas described in the concession as an Ottoman subject,he could not claim the right to benefit by the termsof Article 9 of Protocol XII of the Treaty of Lausanne.This provided for the subrogation of the successor Stateto the rights and obligations of Turkey "towards thenationals of the other contracting Powers" under con-cessionary contracts concluded with Ottoman authoritiesbefore 29 October 1914. The Court held, however,that Article 9 of Protocol XII "contemplates the realnationality of the beneficiaries" and that it was:

" . . . on the nationality of the real beneficiaries andnot on the mere legal national status of the conces-sionnaire that the question of subrogation depends."87

121. Since the real nationality of Mavrommatis wasGreek, Great Britain was held to be under an obligationto respect his concession in accordance with the pro-visions of the Protocol.

85 R.I.A.A., vol. I, at p. 427.8e P.C.I.J., Series A, No. 2; see paras. 75-77, supra.87 P.C.I.J., Series A, No. 5, at p. 31.

CO-OPERATION WITH OTHER BODIES

[Agenda item 4]

DOCUMENT A/CN.4/146

Report on the fifth session of the Asian-African Legal Consultative Committee(Rangoon, January 1962), by Radhabinod Pal, Observer for the Commission

OBSERVER'S REPORT

As desired by Dr. Grigory I. Tunkin, our reveredChairman of the thirteenth session, under the authorityof the decision of the Commission taken in this respectduring the last session at its 621st meeting, I attendedthe fifth session of the Asian-African Legal ConsultativeCommittee held at Rangoon from 17 to 30 January1962 as observer on behalf of the International LawCommission. The actual working meetings of the sessioncovered the period from 17 to 26 January, both daysinclusive. The period from the 27th to 30th was coveredby a social programme outside Rangoon.

The session was attended by delegates from Burma,Ceylon, India, Indonesia, Japan, Pakistan, Thailandand the United Arab Republic. Besides these delegatesthere were observers from Ghana, Laos, the Philippinesand the League of Arab States. There was also anobserver on behalf of the United Nations Secretariatin the person of Mr. Oscar Schachter, Director of theGeneral Legal Division of the Office of Legal Affairs,United Nations Secretariat.

Mr. M. C. Setalvad, Attorney-General of India, theleader of the Indian delegation, was unanimously electedPresident of the session and Mr. A. T. M. Mustafa,Barrister-at-Law, Standing Counsel, Government ofPakistan, leader of the Pakistan delegation, was unani-mously elected Vice-President of the session.

During this session, a sub-committee was constitutedwith members from Burma, Ceylon, Indonesia, India,Japan, Pakistan, Thailand and the United Arab Repub-lic to consider and report amongst other matters on"co-operation with other organizations", and the Sub-Committee, with the member from India in the chair,recommended inter alia to amend article 3 (a) of theCommittee's Statute extending the power of the Com-mittee

"to examine questions that are under consideration bythe International Law Commission and to arrangefor the views of the committee to be placed beforethe commission; to consider the reports of the com-mission and to make recommendations thereon to theGovernments of the participant countries".This recommendation of the Sub-Commitee was ac-

cepted by the Committee without any division.The main subjects that were taken up for considera-

tion by the Committee during the session were:1. The question of dual nationality;2. The question of legality of nuclear tests.Besides these the Committee also considered draft

articles on the immunities of the privileges of the Asian-

African Legal Consultative Committee comprising sevenarticles.

As regards the question of "dual nationality", thesubject was referred to the Committee by the Gov-ernment of Burma. It was felt that dual and multiplenationality was encountered amongst citizens of almostall countries as a result of conflict of laws in the variousStates. In introducing the subject for discussion it wasobserved:

"International Law recognizes that a State canby its own municipal laws determine as to who itsnationals should be and most States have as criteriafor their nationality, the place of a person's birth orhis descent. As a result of the various nationality lawsit sometimes happens that one and the same personis regarded as a national by two or more States andthus occur the cases of dual or multiple nationality.Dual nationality results in conflicting obligationswhich the person may owe to each of the States ofhis nationality. It is not possible to eliminate casesof dual or multiple nationality altogether. Efforts havehowever been made in the past by the internationalbodies to minimize or reduce occurrence of suchcases."The Committee considered this question with a view

to formulating model rules on the subject for considera-tion of the member Governments. The Committee hadbefore it certain draft rules on the subject preparedby the delegation of the United Arab Republic.

The Committee at its third session held in Colomboin January 1960 decided to take up for considerationthe question of Legality of Nuclear Tests, a subjectwhich had been suggested by the Government of Indiaunder article 3 (c) of the Statutes of the Committee"being a matter of Common Concern to all the par-ticipating States in this Committee". The Committeedecided to take up this subject, being of opinion that"this matter had not been considered by any otherBody from the legal point of view, nor had it beenadequately dealt with by any of the authorities on Inter-national Law". The Committee also took note of thefact that several nuclear tests had been carried out inparts of the Asian-African Continents or in areasadjacent thereto, and as such the problem was of greatconcern to the Asian-African countries. The Committeehad directed its secretariat to collect the factual andscientific data that were available on the effects of thenuclear tests and also to prepare a list of topics fordiscussion on the legal aspects of the matter.

At its fourth session held in Tokyo in February,1961, the secretariat of the Committee presented before

152

Co-operation with other bodies 153

it what the secretariat considered to be relevant mate-rials both from the scientific and legal point of view.These materials formed the basis of discussions at thatsession. The members for Burma, Ceylon, India, Indo-nesia, Iraq, Japan, Pakistan, Morocco and the UnitedArab Republic stated their respective viewpoints. TheCommittee also heard statements from the observer forGhana and Mr. F. V. Garcia Amador, then a memberof the International Law Commission, in his personalcapacity as a recognized expert. The Committee, after ageneral discussion, decided to study the matter furtherand to take up the question for fuller consideration atits fifth session. The Committee, however, indicated thescope of its study and directed its secretariat to collectfurther materials on those lines. The Committee decidedthat it was not concerned with the controversial anddebatable question regarding use of nuclear weaponsin time of war but that it should confine itself to anexamination of the problem of legality of nuclear testsin times of peace. In accordance with this decision takenby the Committee at its Tokyo session, the secretariatprepared a comprehensive brief which was placed beforethe present session and on the basis of which the ques-tions were more fully considered.

During the present session, the President of the Com-mittee introduced the subject and drew attention to thelist of topics for discussion given in the brief of docu-ments. Indicating the scope of discussion, the Presidentagain pointed out that the Committee was not concernedwith the war-time use of nuclear weapons, but onlywith the question of nuclear tests carried out in timesof peace. He observed that there were three heads underwhich the subject fell to be considered, namely:

1. Whether there were any known and acceptedprinciples of international law which could be appliedto the situation.

2. If no such rule of international law was directlyapplicable, could any principles of any international lawbe adapted or extended to the present case?

3. Whether the principles of civilized jurisprudencerecognized in the municipal laws of the various Statescould be relied upon to evolve new principles of inter-national law.

He wondered whether international law which had inthe past met many new situations by evolving newprinciples would not in the present case similarlyattempt to counter the grave threats to which thepeoples of the world were exposed by these tests byformulating suitable doctrines based on the principlesof civilized jurisprudence.

The deliberation which followed was on the basis ofthe following eight questions:

1. Is a State responsible or ought it to be so fordirect damages, caused to the inhabitants of the areawhere the tests are carried out, due to deaths of humanbeings and destruction of their property resulting fromexplosions of atomic devices, under the law of tort orprinciples analogous thereto?

2. Can it be said that a State which carried outatomic tests in its own territory is endangering thesafety and well-being of its neighbouring States andtheir inhabitants due to possibilities of radio-active fall-out; and, if so, whether the use by a State of its ownterritory for such purpose is not contrary to the prin-ciples of international law?

Can it be said that the use by a State of its own terri-tory for the purpose of carrying out nuclear tests by

explosion of atomic devices amounts to an abuse of itsrights in respect of use of its State territory?

3. If it is established that explosion of nuclear de-vices results in pollution of the air with radio-activesubstance and that such contaminated air is injurious tothe health of the peoples of the world, would the Statecarrying out the tests be said to be responsible for aninternational tort in accordance with the principles laiddown in the Trail Smelter Arbitration case?

4. In an action based on commission of an inter-national tort, would it be necessary for the claimantState to prove actual damage, or is the general scien-tific and medical evidence on the effects of nuclearexplosions sufficient to maintain the action?

5. Even if the harmful effect resulting from con-tamination of the air can be confined within the terri-tories of the particular State, can it be said that theState has violated the human rights of the citizens andaliens living in its territory, and if so, whether theState is responsible for the harm caused to the aliensunder the principles of international law relating toState responsibility?

6. Does the interference with the freedom of air orsea navigation resulting from declaration of dangerzones over the areas where the tests may be carriedout amount to violation of the principles of internationallaw?

7. Is the destruction of living resources of the seawhich results from nuclear tests on islands or areas ofthe high seas to be regarded as violative of the prin-ciples of international law?

8. Is it lawful for a trustee authority to use terri-tories, which it holds on trust from the United Nations,for purposes of holding nuclear tests ?

The delegates of Ceylon, India, Indonesia, Burma,Japan, Pakistan, Thailand and the United Arab Repub-lic made statements indicating their views in respect ofthese questions.

The discussion that took place was indeed a learnedone, and I listened with deep and admiring attention toevery word that fell from the honourable members ofthe Committee in respect of these questions, and I mustsay that if the popular will of the world is at all a force,then the developments thus helping to bring togetherso many influential friends from the diverse parts of theworld would be sure to help them to find out that pro-pelling coefficient of driving forces which would finallyweld their souls and spirits in one flaming effort in thisrespect. The sense of injustice thus universally feltbeing an indissociable blend of reason and empathy,though evolutionary in its manifestations, offering asit were only a common language for communication,will, I felt, have to be heeded.

This is indeed the most troublesome of the numeroushosts whom history has been pleased to place beside usand with whom we must come to terms in order to dis-charge our obligations to build up world communallife. The matter, however, can hardly be decided byappeal only to the conscience of the community.

If any specific legal provisions may, on the one hand,be the instruments of the conscience of the community,seeking to subdue the potential anarchy of forces andinterests into a tolerable harmony, they are, on the otherhand, to be the formulations of given tensions andequilibria of life and power, as worked out by the un-conscious interactions of social life.


Usually the norms of law are compromises betweenthe rational moral ideals of what ought to be, and thepossibilities of the situation as determined by givenequilibria of vital forces.

The social harmony of living communities is to beachieved by an interaction between the normative con-ceptions of morality and law and the existing and de-veloping forces and vitalities of the community.

The shape which any embodiment in historical lawtakes to express elements of ideals of justice is the con-sequence of pressures and counter-pressures in a livingcommunity. Such embodiments are indeed rationaliza-tions of the interests of the dominant elements of acommunity.

In the course of this discussion, I was invited in mycapacity as an observer on behalf of the InternationalLaw Commission, as also in my personal capacity, totake part in the deliberation of the Committee. I ob-served that the question really was one that shouldimmediately exercise the minds of all men of goodwill. Indeed it raises, I said, a grave and anxious issuedemanding immediate decision and I congratulated thesecretariat of the Committee on its collection of mate-rials having immensely relevant bearing on the ques-tions. I however, expressed my inability to participatein the deliberation in my capacity as observer onbehalf of the International Law Commission, havingpointed out that the question, thotigh in a partial form,came before the Commission as far back as 1956. Thequestion, I pointed out, came up before the Commissionin some form twice in the course of the same session,once in connexion with the question of freedom of thehigh seas and again in connexion with the question ofpollution of the high seas, including the air space above.I drew the Committee's attention to the summary ofthe deliberation on those occasions in the Commission'sYearbook for 1956, vol. I, at pages 11 to 62, underarticles 2 and 23 of the draft on the law of the sea, andalso pointed out that this draft was ultimately sub-stantially adopted by the nations in the shape of theGeneva Convention of 1958.

I also declined in my personal capacity to join thedeliberation as I had not the questions before me beforeI went to Rangoon and thus I had no opportunity ofthoroughly examining any of them. I felt that withoutsuch a study one should not venture any comment oropinion on them. Frankly speaking, I felt that the ques-tions involved deep study of many fundamental mat-ters. The developments in question have indeed drivenus so helplessly to live with the horror of our achieve-ments that I ventured not to trust my ability to keepmy capacities distinct and therefore refrained fromsaying anything on the subject.

I, however, drew the attention of the Committee tothe typical justifying attempts appearing in the edi-torial note by Prof. My res S. McDougal of the EditorialBoard of the American Journal of International Lawin 195 51 which note was provoked by the condemnationof such tests by Earl Jowitt in the British House ofLordsa as also by a very comprehensive attack on thetest by Dr. Emanuel Margolis in the Yale Law Journal.3

Being invited by the President, Mr. Oscar Schachter,Personal Representative of the Secretary-General, ex-pressed his views of the questions in some general terms.In doing so, he expressed forcefully a few words ofcaution against any hasty resolution in respect of thequestions.

After discussion, the Committee did not declare anyfinal opinion on the questions. It only decided that thedelegations should, if they so wish, send to the secre-tariat of the Committee by the first day of May 1962their comments on the draft report and the secretariatwould thereafter send the draft report together withthe comments so received to the member Governmentsfor their consideration and that the matter should beplaced before the next session of the Committee as apriority item on the agenda.

Before concluding this report, I must express myheartfelt gratitude to the Committee, as also to thepeople and the Government of Burma, for the kind re-ception that I received at their hands. On behalf oithe Commission, I extended an invitation to the Com-mittee to continue its co-operation with the Commissionand to send an observer to attend the next session ofthe Commission. I really was very much impressed withthe high level of deliberations that took place duringthe session and I frankly told the Committee that"I have seen in the conduct of its business a real con-ference where all the distinguished members came reallyto confer and not to differ in the name of conference.Indeed the entire deliberation amply indicated thatthe member nations are prompted by the urge to finda way to a new wholeness." I also expressed my hopethat "all the Asian-African nations would join theorganization and help building up this new wholeness,always remembering that our environment now is nolonger the world about us but rather the world". Inconclusion I told the Committee I shall leave the meet-ing with a new faith in the great principles that haveactuated the organization.

1 McDougal, "The Hydrogen Bomb Tests and the Inter-national Law of the Sea", American Journal of InternationalLaw, vol. 49 (1955), p. 356.

2 House of Lords Debates (Fifth Series), vol. 186, pp. 808-09 (1954).

3 Margolis, "The Hydrogen Bomb Experiments and Inter-national Law", Yale Law Journal, vol. 64 (1955), p. 629.

QUESTION OF SPECIAL MISSIONS (GENERAL ASSEMBLY RESOLUTION 1687 (XVI) )[Agenda item 3]

DOCUMENT A/CN.4/147

Working paper prepared by the Secretariat

1. At its tenth session in 1958, the InternationalLaw Commission considered the question of "Diplo-matic intercourse and immunities" and prepared draftarticles on the subject together with a commentary(A/3859, chapter III).

2. In its report, the Commission stated that, al-though the draft dealt only with permanent diplomaticmissions, diplomatic relations also assumed other formsthat might be placed under the heading of "ad hocdiplomacy", covering itinerant envoys, diplomatic con-ferences and special missions sent to a State for limitedpurposes. The Commission considered that these formsof diplomacy should also be studied, in order to bringout the rules of law governing them. It requestedMr. A. E. F. Sandstrom, the Special Rapporteur forthe topic "diplomatic intercourse and immunities", toundertake that study and to submit his report at a futuresession {ibid., para. 51).

3. At its twelfth session in 1960, the Commissionadopted three draft articles, which are reproduced below(A/4425, chapter III) -}

"ARTICLE 1

"Definitions"1. The expression 'special mission' means an of-

ficial mission of State representatives sent by oneState to another in order to carry out a special task.It also applies to an itinerant envoy who carries outspecial tasks in the States to which he proceeds.

"2. The expression '1958 draft' denotes the draftarticles on diplomatic intercourse and immunities pre-pared by the International Law Commission in 1958.

"ARTICLE 2

"Applicability of section I of the 1958 draft"Of the provisions of section I of the 1958 draft,

only articles 8, 9 and 18 apply to special missions.

"ARTICLE 3

"Applicability of sections II, III and IV of the1958 draft

"1. The provisions of sections II, III and IV applyto special missions also.

1 In the 1958 draft, sections I, II, III and IV refer respec-tively to (1) diplomatic intercourse in general; (2) diplomaticprivileges and immunities; (3) conduct of the mission and ofits members towards the receiving State, and (4) end of thefunction of a diplomatic agent. Articles 8, 9 and 18 concernpersons declared persona non grata, notification of arrivaland departure, and the use of flag and emblem.

[Original text: French][5 April 1962]

"2. In addition to the modes of termination re-ferred to in article 41 of the 1958 draft, the functionsof a special mission will come to an end when thetasks entrusted to it have been carried out."4. In its report to the General Assembly covering

the work of its twelfth session (ibid., para. 36), theCommission recommended that this draft should be re-ferred to the United Nations Conference on DiplomaticIntercourse and Immunities scheduled to be held atVienna in the spring of 1961, in order that thesearticles might be embodied in whatever convention theConference might prepare. The Commission added that,owing to lack of time, it had not been able to give thetopic the thorough study it would normally have done.The Commission explained that the three articles, to-gether with their commentary, should therefore beregarded as constituting only a preliminary survey car-ried out mainly in order to put forward certain ideasand suggestions which could be taken into account atthe Vienna Conference.

5. On the recommendation of the Sixth Committee,the General Assembly, by its resolution 1504 (XV)of 12 December 1960, decided that the draft articles onspecial missions should be referred to the Vienna Con-ference so that they might be considered together withthe draft articles on diplomatic intercourse and im-munities adopted by the International Law Commissionin 1958.

6. Pursuant to General Assembly resolution 1504(XV), the Vienna Conference discussed the questionand decided, at its second plenary meeting2 held on3 March 1961, to refer it to the Committee of theWhole, together with the question of diplomatic inter-course and immunities. At its 23rd meeting, held on21 March 1961, the Committee of the Whole set up aSub-Committee, composed of the representatives ofEcuador, Iraq, Italy, Japan, Senegal, Union of SovietSocialist Republics, United Kingdom of Great Britainand Northern Ireland, United States of America andYugoslavia, to study the question of special missionsand to submit a report thereon.3

7. In its report4 to the Committee of the Whole,the Sub-Committee on special missions stressed the im-

2 United Nations Conference on Diplomatic Intercourse andImmunities (Vienna, 2 March-14 April 1961), Official Recordsvol. I (A/CONF.20/14), United Nations publication, SalesNo.: 61.X.2, summary records of the second plenary meeting,para. 12.

3 Ibid., summary records of the 23rd meeting of the Com-mittee of the Whole, para. 70.

*lbid., vol. II (A/COXF.20/14/Add.l), United Nations pub-lication, Sales No.: 62.X.1, document A/CONF.20/C.1/L.315.

155


portance of the subject referred to it. The Sub-Com-mittee then took note of the International Law Com-mission's statement that the articles on special missionsconstituted only a preliminary survey. The Sub-Committee noted that, because of lack of time, thedraft articles on special missions had, in contrast withthe usual practice, not been submitted to Governmentsfor their comments before being drafted in final form.The Sub-Committee further noted that the draft articleson special missions did little more than indicate whichof the rules on permanent missions applied, and whichdid not apply, to special missions. The Sub-Committeeconsidered that, while the basic rules might in fact bethe same, it could not be asssumed that such an approachnecessarily covered the whole field of special missions.

8. In view of the foregoing considerations the Sub-Committee concluded that, while the draft articles onspecial missions provided an adequate basis for discus-sion, their elaboration into texts suitable for inclusionin a convention or other instrument would requireextensive and time-consuming study. Final study andrecommendations on special missions would, further-more, have to await the approval of a complete set ofarticles on permanent missions, at least by the Com-mittee of the Whole. The question thus arose whetherthe Sub-Committee could find the time necessary for aproper and thorough study of the subject of specialmissions, and whether the Committee of the Whole andthe Conference itself would have sufficient opportunityto discuss any detailed recommendations made by theSub-Committee. The Sub-Committee was of the opinionthat this question should be answered in the negative,having in mind the limited duration of the Conference,the heavy schedule of the Committee of the Whole andthe plenary sessions of the Conference, and the limita-tions on concurrent meetings of the Sub-Committee andother organs of the Conference imposed by budgetaryand staffing considerations. The Sub-Committee there-fore unanimously recommended that the Committee ofthe Whole should report to the Conference that thesubject of special missions should be referred back tothe General Assembly, with the suggestion that theAssembly should entrust to the International LawCommission the task of the further study of the topicin the light of the Convention to be established by theConference.

9. At its 39th meeting, held on 4 April 1961, theCommittee of the Whole unanimously adopted the Sub-Committee's recommendation and requested the Draft-ing Committee to prepare, for submission to the Con-ference, a draft resolution along the lines of that

recommendation.5 Accordingly, at its fourth plenarymeeting on 10 April 1961, the Conference adopted aresolution6 recommending to the General Assembly ofthe United Nations that it refer the question back to theInternational Law Commission.

10. At its 1014th plenary meeting, held on 25 Sep-tember 1961, the General Assembly included the "Ques-tion of Special Missions" in the agenda of its sixteenthsession, and at its 1018th plenary meeting, held on27 September, it decided to refer the items to the SixthCommittee, which discussed it at its 731st meeting heldon 15 December 1961.

11. In its report to the General Assembly7 the SixthCommittee stated that it had approved the recommenda-tion of the Vienna Conference and added that certainrepresentatives had expressed the hope that the Inter-national Law Commission would take up the questionas soon as possible.

12. At its 1081st plenary meeting, held on 18 Decem-ber 1961, the General Assembly, acting on the recom-mendation of the Sixth Committee,8 adopted resolution1687 (XVI) , which is reproduced in full below:

QUESTION OF SPECIAL MISSIONS

"The General Assembly,"Recalling its resolution 1504 (XV) of 12 Decem-

ber 1960, whereby it referred to the United NationsConference on Diplomatic Intercourse and Immunitiesthe draft articles on special missions contained inchapter III of the report of the International LawCommission covering the work of its twelfth session,

"Noting the resolution on special missions adoptedby the United Nations Conference on DiplomaticIntercourse and Immunities at its fourth plenarymeeting, held on 10 April 1961, recommending thatthe subject be referred again to the InternationalLaw Commission,

"Requests the International Law Commission, assoon as it considers it advisable, to study further thesubject of special missions and to report thereon tothe General Assembly."

^ Ibid., vol. I, summary records of the 39th meeting of theCommittee of the Whole, para. 63.

6 Ibid., vol. I, summary records of the fourth plenary meet-ing, para. 3; and vol. II, document A/CONF.20/10/Add.l, reso-lution I.

"? Official Records of the General Assembly, Sixteenth Ses-sion, Annexes, vol. Il l , agenda item 71, document A/5043,paras. 9 and 10.

8 Ibid., para. 12.

REPORT OF THE COMMISSION TO THE GENERAL ASSEMBLY

DOCUMENT A/5209*

Report of the International Law Commission covering the work of its fourteenth session,24 April-29 June 1962

CONTENTS

Chapter Paragraphs Page

I. ORGANIZATION OF THE SESSION 1-10 158

I. Membership and attendance 2-4 158

II. Officers 5-7 158

ITT. Agenda 8-10 158

TI. LAW OF TREATIES 11-23 159

I. Introduction 11-22 159

II. Draft articles on the law of treaties 23 161

III. FUTURE WORK IN THE FIELD OF THE CODIFICATION AND PROGRESSIVE DEVEL-OPMENT OF INTERNATIONAL LAW 24-62 187

L Topics referred to in paragraph 3 (a) of General Assembly resolution1686 (XVI) 32-56 188

II. The Commission's future programme of work (General Assembly reso-lution 1686 (XVI), paragraph 3 (&)) 57-62 190

IV. PLANNING OF THE WORK OF THE COMMISSION FOR THE NEXT SESSION 63-76 191

I. I .aw of treaties 65-66 191

II. State responsibility 67-69 191

III. Succession of States and Governments 70-74 191

IV. Relations between States and inter-governmental organizations 75 192

V. Special missions 76 192

V. OTHER DECISIONS AND CONCLUSIONS OF THE COMMISSION 77-86 193

I. Co-operation with other bodies 77-81 193

II. Date and place of the next session 82-83 193

III. Production of documents, summary records and translation facilities.. 84—85 193

IV. Representation at the seventeenth session of the General A s s e m b l y . . . . 86 193

ANNEX

Registration and publication of treaties and international agreements: regulations togive effect to Article 102 of the Charter of the United Nations 194

* Also issued as Official Records of the General Assembly, Seventeenth Session, Supplement No. p.

157

Chapter I

ORGANIZATION OF THE SESSION

1. The International Law Commission, established inpursuance of General Assembly resolution 174 (II) of21 November 1947, and in accordance with its Statuteannexed thereto, as subsequently amended, held its four-teenth session at the European Office of the United Na-tions, Geneva, from 24 April to 29 June 1962. The workof the Commission during the session is described in thisreport. Chapter II of the report contains twenty-nineprovisional draft articles on the conclusion, entry intoforce and registration of treaties, with commentaries.Chapter III relates to the Commission's future work inthe field of the codification and progressive develop-ment of international law. Chapter IV concerns the or-ganization of the work of the next session. Chapter Vdeals with a number of administrative and other ques-tions.

I. Membership and attendance

2. By its resolution 1647 (XVI) of 6 November 1961,the General Assembly decided to increase the numberof members of the Commission from 21 to 25. At its1067th plenary meeting, on 28 November 1961, the As-sembly elected the members listed below for a term offive years, pursuant to its resolution 985 (X) of 3 De-cember 1955. The term of the present members beganon 1 January 1962.

3. The Commission consists of the following mem-bers:

Name

Sir Humphrey WALDOCK

Nationality

United Kingdomof Great Brit-ain and North-ern Ireland

Iraq

Name

Mr. Roberto AGOMr. Gilberto AMADOMr. Milan BARTOSMr. Herbert W. BRIGGS

Mr. Marcel CADIEUXMr. Erik CASTRENMr. Abdullah EL-ERIAN

Mr. Taslim O. ELIASMr. Andre GROSMr. Eduardo

JIMENEZ DE ARECHAGAMr. Victor KANGAMr. Manfred LACHSMr. Liu ChiehMr. Antonio DE LUNA GARCIAMr. Luis PADILLA NERVOMr. Radhabinod PALMr. Angel M. PAREDESMr. Obed PESSOUMr. Shabtai ROSENNEMr. Abdul Hakim TABIBIMr. Senjin TSURUOKAMr. Grigory I. TUNKIN

Mr. Alfred VERDROSS

Nationality

ItalyBrazilYugoslaviaUnited States

of AmericaCanadaFinlandUnited Arab

RepublicNigeriaFrance

UruguayCameroonPolandChinaSpainMexicoIndiaEcuadorDahomeyIsraelAfghanistanJapanUnion of Soviet

SocialistRepublics

Austria

Mr. Mustafa Kamil YASSEEN4. All the members, with the exception of Mr. Vic-

tor Kanga, attended the session of the Commission.

II. Officers5. At its 628th meeting, held on 24 April 1962, the

Commission elected the following officers:Chairman: Mr. Radhabinod Pal;First Vice-Chairman: Mr. Andre Gros;Second Vice-Chairman: Mr. Gilberto Amado;Rapporteur: Mr. Manfred Lachs.6. At its 634th meeting, held on 2 May 1962, the

Commission appointed a Drafting Committee under thechairmanship of the first Vice-Chairman of the Com-mission. The composition of the Committee was as fol-lows: Mr. Andre Gros, Chairman, Mr. Roberto Ago,Mr. Eduardo Jimenez de Arechaga, Mr. ManfredLachs, Mr. Grigory I. Tunkin, Sir Humphrey Waldock,Mr. Mustafa Kamil Yasseen.

7. The Legal Counsel, Mr. Constantin Stavropoulos,was present at the meetings of the Commission and rep-resented the Secretary-General from 29 May to 1 June.Mr. Yuen-li Liang, Director of the Codification Divi-sion of the Office of Legal Affairs, acted as Secretaryto the Commission. He also represented the Secretary-General in the absence of Mr. Stavropoulos.

HI. Agenda8. The Commission adopted an agenda for the four-

teenth session consisting of the following items:1. Law of treaties.2. Future work in the field of codification and progressive

development of international law (General Assembly reso-tion 1686 (XVI).

3. Question of special missions (General Assembly resolution1687 (XVI)) .

4. Co-operation with other bodies.5. Date and place of the fifteenth session.6. Other business.9. In the course of the session, the Commission held

forty-five meetings. It considered all the items on itsagenda except item 3 (Question of special missions).

10. At its twelfth session, in 1960, the Commissionhad, in pursuance of General Assembly resolution 1453(XIV) of 7 December 1959, requested the Secretariat1

to undertake a study of the juridical regime of historicwaters and to extend the scope of the preliminary studyoutlined in paragraph 8 of the memorandum on historicbays, prepared by the Secretariat in connexion with thefirst United Nations Conference on the Law of the Sea.2

This study (A/CN.4/143) was submitted to the presentsession, but as the question was not on the agenda, itwas not considered by the Commission.

1 Yearbook of the International Law Commission, 1960(United Nations publication, Sales No.: 60.V.I) vol. II, p. 180.

2 United Nations Conference on the Law of the Sea, OfficialRecords, vol. I (United Nations publication, Sales No.: 58.V.4,vol. I ) , document A/CONF.13/1.

158

Chapter II

LAW OF TREATIES

I. Introduction

A. SUMMARY OF THE COMMISSION'S PROCEEDINGS3

11. At its first session in 1949, the International LawCommission placed the "Law of treaties" amongst thetopics listed in paragraphs 15 and 16 of its report forthat year as being suitable for codification and appointedMr. J. L. Brierly as Special Rapporteur for the subject.

12. At its second session in 1950, the Commissiondevoted its 49th to 53rd meetings to a preliminary dis-cussion of Mr. J. L. Brierly's first report4 which like hisother reports envisaged the Commission's work on thelaw of treaties taking the form of a draft convention,and also had available to it replies of Governments to aquestionnaire addressed to them under article 19, para-graph 2, of its Statute.3 The Commission's report forthat session contained inter alia the following observa-tion:

"A majority of the Commission were also in favourof including in its study agreements to which inter-national organizations are parties. There was generalagreement that, while the treaty-making power ofcertain organizations is clear, the determination ofthe other organizations which possess capacity formaking treaties would need further consideration."(Paragraphs 161-162 of the report.)

13. At its third session in 1951, the Commission hadbefore it two reports from Mr. Brierly,6 one a continua-tion of the Commission's general work on the law oftreaties and the other a special report on "reservationsto multilateral conventions" called for by the GeneralAssembly at the same time as it had requested an ad-visory opinion from the International Court of Justiceon the particular problem of reservations to the Geno-cide Convention.7 As to the Commission's opinions andrecommendations on the special subject of reservationsto multilateral conventions, there is no need to sum-marize them here, since this is done later in the presentreport in the commentary which follows articles 18, 19and 20.8 At its third session of the Commission, Mr.Brierly presented a second report on the law of treatieswhich was discussed in the course of eight meetings.The Commission took a further decision at that sessionconcerning the question of international organizationsalready mentioned in its report for 1950. It adopted"the suggestion put forward the previous year by Mr.Hudson, and supported by other members of the Com-

3 This summary is based upon paragraphs 8-11 in chapter IIof the Commission's report to the General Assembly in 1959(A/4169) : Yearbook of the International Laiv Commission, 1959(United Nations publication, Sales No.: 59.V.I), vol. II,pp. 88-89.

4 Yearbook of the International Law Commission, 1950(United Nations publication, Sales No.: 57.V.3), vol. II, p. 223.

5 Ibid., p. 196.6 Yearbook of the International Law Commission, 1951

(United Nations publication, Sales No.: 57.V.6), vol. II, pp. 1and 70.

11.CJ. Reports 1951, p. 15.8 See para. 23 below.

mission, that it should leave aside, for the moment, thequestion of the capacity of international organizationsto make treaties, that it should draft the articles withreference to States only and that it should examine laterwhether they could be applied to international organiza-tions as they stood or whether they required modifica-tions."9

14. At its fourth session in 1952, the Commission hadbefore it a "third report on the law of treaties",10 pre-pared by Mr. Brierly, who, however, had meanwhileresigned his membership of the Commission. In theabsence of its author the Commission did not think itexpedient to discuss that report, and it confined itselfto electing Mr. H. Lauterpacht to succeed Mr. Brierlyas Special Rapporteur.

15. At its fifth session in 1953, the Commission re-ceived a report from Mr. Lauterpacht containing draftarticles and commentaries on a number of topics in thelaw of treaties but, owing to its other commitments,was unable to take up the report at that session. It there-fore instructed Mr. Lauterpacht to continue his workand present a further report. At its sixth session in1954, the Commission duly received Mr. H. Lauter-pacht's second report but was again unable to take upthe subject. Meanwhile Mr. (by then Sir Hersch) Lau-terpacht had resigned from the Commission on his elec-tion as judge of the International Court of Justice, and atits seventh session in 1955 the Commission elected SirGerald Fitzmaurice as Special Rapporteur in his place.

16. At the next five sessions of the Commission,from 1956 to 1960, Sir Gerald Fitzmaurice presentedfive separate and comprehensive reports on the law oftreaties, covering respectively: (a) the framing, con-clusion and entry into force of treaties,11 (b) the ter-mination of treaties,12 (c) essential and substantialvalidity of treaties,13 (d) effects of treaties as betweenthe parties (operation, execution and enforcement)14

and (e) treaties and third States.15 Although taking fullaccount of the reports of his predecessors, Sir GeraldFitzmaurice began preparing his drafts on the law oftreaties de novo and framed them in the form of anexpository code rather than of a convention. During thisperiod the Commission's time was largely taken up withits work on the law of the sea and on diplomatic andconsular intercourse and immunities, so that, apart froma brief discussion of certain general questions of treatylaw at the 368th-370th meetings of its 1956 session, it

9 Yearbook of the International Law Commission, 1951(United Nations publication, Sales No.: 57.V.6), vol. It p. 136.



!2 Yearbook of the International Law Commission, 1957(United Nations publication, Sales No.: 57.V.5), vol. II, p. 16.



!5 Yearbook of the International Law Commission, 1960(United Nations publication, Sales No.: 60.V.I), vol. II, p. 69.

159


was only able to concentrate upon the law of treaties atits eleventh session in 1959. At that session it devotedsome twenty-six meetings16 to a discussion of Sir Ger-ald Fitzmaurice's first report on the framing, conclusionand entry into force of treaties, and provisionallyadopted the text of fourteen articles, together withtheir commentaries. However, the time available wasnot sufficient to enable the Commission to complete itsseries of draft articles on this part of the law of trea-ties.17 In its report for 1959 the Commission stated that,without prejudice to any eventual decision to be takenby the Commission it had not so far envisaged its workon the law of treaties as taking the form of one or moreinternational conventions but rather as "a code of ageneral character". The arguments in favour of a"code" were stated to be two-fold:

"First, it seems inappropriate that a code on thelaw of treaties should itself take the form of a treaty;or rather, it seems more appropriate that it shouldhave an independent basis. In the second place, muchof the law relating to treaties is not especially suitablefor framing in conventional form. It consists ofenunciations of principles and abstract rules, mosteasily stated in the form of a code; and this also hasthe advantage of rendering permissible the inclusionof a certain amount of declaratory and explanatorymaterial in the body of the code, in a way that wouldnot be possible if this had to be confined to a strictstatement of obligation. Such material has consider-able utility in making dear, on the face of the codeitself, the legal concepts or reasoning on which thevarious provisions are based."18

Mention was also made of possible difficulties thatmight arise if the law of treaties were to be embodiedin a multilateral convention and then some States didnot become parties to it or, having become parties to it,subsequently denounced it. On the other hand, it rec-ognized that these difficulties arise whenever a conven-tion is drawn up embodying rules of customary law.Finally, it underlined that, if it were decided to cast thecode in the form of a multilateral convention, consider-able drafting changes, and possibly the omission ofsome material, would almost certainly be required.

17. The twelfth session, in 1960, was almost entirelytaken up with consular intercourse and immunities andad hoc diplomacy, so that no further progress was madewith the law of treaties during that session. Sir GeraldFitzmaurice then had himself to retire from the Com-mission on his election as judge of the InternationalCourt of Justice, and at the thirteenth session, in 1961,the Commission elected Sir Humphrey Waldock to suc-ceed him as Special Rapporteur for the law of treaties.At the same time the Commission took the followinggeneral decisions as to its work on the law of treaties:

"(i) That its aim would be to prepare draft articleson the law of treaties intended to serve as the basisfor a convention;

"(ii) That the Special Rapporteur should be re-quested to re-examine the work previously done inthis field by the Commission and its Special Rap-porteurs ;

"(iii) That the Special Rapporteur should beginwith the question of the conclusion of treaties and

is 480th-496th, 500th-504th and 519th-522nd meetings.1 7 Chapter II of the Commission's report for 1959 contains

articles 1-10 and 14-17 of a proposed chapter of a comprehen-sive code on the law of treaties.

1 8 Yearbook of the International Law Commission, 1956(United Nations publication, Sales No.: 56.V.3), vol. II, p. 107.

then proceed with the remainder of the subject, ifpossible covering the whole subject in two years."19

By the first of these decisions the Commission changedthe scheme of its work on the law of treaties from amere expository statement of the law to the preparationof draft articles capable of serving as a basis for a mul-tilateral convention. In doing so, it had two considera-tions principally in mind. First, an expository code,however well formulated, cannot in the nature of thingsbe so effective as a convention for consolidating the law;and the consolidation of the law of treaties is of par-ticular importance at the present time when so manynew States have recently become members of the inter-national community. Secondly, the codification of thelaw of treaties through a multilateral convention wouldgive all the new States the opportunity to participatedirectly in the formulation of the law if they so wished;and their participation in the work of codification ap-pears to the Commission to be extremely desirable inorder that the law of treaties may be placed upon thewidest and most secure foundations.

18. At the present session of the Commission theSpecial Rapporteur submitted a report (A/CN.4/144and Add.l) on the conclusion, entry into force andregistration of treaties which was considered by theCommission at its 636th-672nd meetings. The Com-mission adopted a provisional draft of articles uponthese topics, which is reproduced in the present chaptertogether with commentaries upon the articles. Its planis to prepare a draft of a further group of articles at itsnext session covering the validity and duration of trea-ties and a draft of a yet further group of articles at thesubsequent session covering the application and effectsof treaties. Whether all the drafts should be amalgam-ated to form a single draft convention or whether thecodification of the law of treaties should be dealt within a series of related conventions is a question which canbe left over for decision when all the drafts are com-plete. Provisionally, and for the purpose of facilitatingthe work of drafting, the Commission is adopting thesame method as in the case of the law of the sea—ofpreparing a series of self-contained though closely re-lated groups of draft articles.

19. In accordance with articles 16 and 21 of its Stat-ute, the Commission decided to transmit its draft con-cerning the conclusion, entry into force and registrationof treaties, through the Secretary-General, to Govern-ments for their observations.

B. THE SCOPE OF THE PRESENT GROUP OF DRAFTARTICLES

20. The present group of draft articles covers thebroad topic of the "conclusion" of treaties. "Entry intoforce" has been regarded as naturally associated with,if not actually part of, "conclusion", while the subject of"registration of treaties" has been added as belongingessentially to the procedure of treaty-making and asbeing closely linked in point of time to entry into force.20

Articles providing for the correction of errors discov-ered in the texts of treaties after their authenticationhave been included, as well as articles concerning theappointment and functions of a depositary. The de-

1 9 Official Records of the General Assembly, Sixteenth Ses-sion, Supplement No. 9 (A/4843), para. 39.

2 0 Article 102 of the Charter requires treaties to be registered"as soon as possible," while the regulations adopted by the Gen-eral Assembly on 14 December 1946 provide that they shall notbe registered until they have entered into force; see article 1,paragraph 2, of the regulations reproduced in the annex tothe present report.

Report of the Commission to the General Assembly 161

positary State or international organization plays soessential a part in the working of the procedural clausesof a multilateral treaty that reference to the functionsof a depositary is almost inevitable in articles codifyingthe law concerning the conclusion of treaties. The Com-mission notes, moreover, that the General Assembly it-self, in its resolution 1452 B (XIV) of 7 December1959 concerning reservations to multilateral conven-tions, emphasized the need for the practice of depositaryStates and organizations to be taken into account bythe Commission in its work on the law of treaties. Thearticles (articles 28 and 29) prepared by the Commis-sion concerning the functions of a depositary will, how-ever, be re-examined since the information concerningthe practice of depositary States and organizationscalled for in the above-mentioned resolution is not yetavailable.

21. The Commission again considered the questionof including provisions concerning the treaties of inter-national organizations in the draft articles on the con-clusion of treaties. The Special Rapporteur had pre-pared, for submission to the Commission at a later stagein the session, a final chapter on treaty-making by inter-national organizations. He suggested that this chaptershould specify the extent to which the articles concern-ing States apply to international organizations andformulate the particular rules peculiar to organizations.The Commission, however, reaffirmed its decisions of195121 and 195922 to defer examination of the treatiesentered into by international organizations until it hadmade further progress with its draft on treaties con-cluded by States. At the same time the Commissionrecognized that international organizations may possessa certain capacity to enter into international agreementsand that these agreements fall within the scope of thelaw of treaties. Accordingly, while confining the specificprovisions of the present draft to the treaties of States,the Commission has made it plain in the commentariesattached to articles 1 and 3 of the present draft articlesthat it considers the international agreements to whichorganizations are parties to fall within the scope of thelaw of treaties.

22. The draft articles have provisionally been ar-ranged in five sections covering: (i) general provisions,(ii) the conclusion of treaties by States, (iii) reserva-tions, (iv) the entry into force and registration oftreaties and (v) the correction of errors and the func-tions of depositaries. In preparing the draft articles,the Commission has sought to codify the modern rulesof international law concerning the conclusion of trea-ties, and the articles formulated by the Commission con-tain elements of progressive development as well asof codification of the law.

23. The text of draft articles 1 to 29 and the com-mentaries, as adopted by the Commission on the pro-posal of the Special Rapporteur, are reproduced below:

II. Draft articles on the law of treatiesPart I

CONCLUSION, ENTRY INTO FORCE AND REGISTRATIONOF TREATIES

SECTION I : GENERAL PROVISIONS

Article 1Definitions

1. For the purposes of the present articles, the21 Yearbook of the International Law Commission, 1951

(United Nations publication, Sales No.: 57.V.6), vol. I, p. 136.22 Yearbook of the International Law Commission, 1959

(United Nations publication, Sales No. : 59.V.I), vol. II, pp. 89and 96.

following expressions shall have the meaningshereunder assigned to them:

(a) "Treaty" means any international agreementin written form, whether embodied in a single in-strument or in two or more related instruments andwhatever its particular designation (treaty, con-vention, protocol, covenant, charter, statute, act,declaration, concordat, exchange of notes, agreedminute, memorandum of agreement, modus vivendior any other appellation), concluded between twoor more States or other subjects of internationallaw and governed by international law.

(b) "Treaty in simplified form" means a treatyconcluded by exchange of notes, exchange of let-ters, agreed minute, memorandum of agreement,joint declaration or other instrument concluded byany similar procedure.

(c) "General multilateral treaty" means a multi-lateral treaty which concerns general norms of in-ternational law or deals with matters of generalinterest to States as a whole.

(d) "Signature", Ratification", "Accession", "Ac-ceptance" and "Approval" mean in each case theact so named whereby a State establishes on theinternational plane its consent to be bound by atreaty. "Signature" however also means, accordingto the context, an act whereby a State authenticatesthe text of a treaty without establishing its con-sent to be bound.

(e) "Full powers" means a formal instrumentissued by the competent authority of a State au-thorizing a given person to represent the Stateeither for the purpose of carrying out all the actsnecessary for concluding a treaty or for the par-ticular purpose of negotiating or signing a treatyor of executing an instrument relating to a treaty.

(/) "Reservation" means a unilateral statementmade by a State, when signing, ratifying, acced-ing to, accepting or approving a treaty, wherebyit purports to exclude or vary the legal effectof some provisions of the treaty in its applicationto that State.

(g) "Depositary" means the State or interna-tional organization entrusted with the functionsof custodian of the text of the treaty and of allinstruments relating to the treaty.

2. Nothing contained in the present articlesshall affect in any way the characterization orclassification of international agreements under theinternal law of any State.

Commentary

(1) The definitions, as the introductory words of theparagraph indicate, are intended only to state the mean-ings with which the terms in question are used in thedraft articles.

(2) Treaty. The term "treaty" is used throughoutthe draft articles as a generic term covering all formsof international agreement in writing. Although theterm "treaty" in one sense connotes only the singleformal instrument, there also exist international agree-ments, such as exchanges of notes, which are not asingle formal instrument nor usually subject to ratifica-tion, and yet are certainly agreements to which the lawof treaties applies. Similarly, very many single instru-ments in daily use, such as an "agreed minute" or a"memorandum of understanding," could not: appro-priately be called formal instruments, but they are un-doubtedly international agreements subject to the law


of treaties. A general convention on the law of treatiesmust cover all such agreements, whether embodied inone instrument or in two or more related instruments,and whether the instrument is "formal" or "informal."The question whether, for the purpose of describing allsuch instruments and the law relating to them, the ex-pression "treaties" and "law of treaties" should be em-ployed, rather than "international agreements" and"law of international agreements" is a question of ter-minology rather than of substance. In the opinion ofthe Commission, a number of considerations pointstrongly in favour of using the term "treaty" for thispurpose.

(3) In the first place, the treaty in simplified form,far from being at all exceptional, is very common. Thenumber of such agreements, whether embodied in asingle instrument or in two or more related instruments,is now very large and moreover their use is steadily in-creasing.23

(4) Secondly the juridical differences, in so far asthey really exist at all, between formal treaties andtreaties in simplified form lie almost exclusively in thefield of form, and in the method of conclusion and entryinto force. The law relating to such matters as validity,operation and effect, execution and enforcement, inter-pretation, and termination, applies to all classes of in-ternational agreements. In relation to these matters,there are admittedly some important differences of ajuridical character between certain classes or categoriesof international agreements.24 But these differencesspring neither from the form, nor from the appellation,nor from any other outward characteristic of the instru-ment in which they are embodied: they spring exclu-sively from the content of the agreement, whatever itsform. It would therefore be inadmissible to exclude cer-tain forms of international agreements from the generalscope of a convention on the law of treaties merely be-cause, in the field of form pure and simple, and of themethod of conclusion and entry into force, there may becertain differences between such agreements and formalagreements. At the most, such a situation might make itdesirable, in that particular field and in the section of theconvention dealing with it, to institute certain differ-ences of treatment between different forms of inter-national agreements.

(5) Thirdly, even in the case of single formal agree-ments, an extraordinarily rich and varied nomenclaturehas developed which serves to confuse the question ofclassifying international agreements. Thus, in additionto "treaty", "convention" and "protocol", one not in-frequently finds titles such as "declaration", charter","covenant", "pact", "act", "statute", "agreement", "con-cordat", whilst names like "declaration" and "agreement"and "modus vivendi" may well be found given both toformal and less formal types of agreements. As to thelatter, their nomenclature is almost illimitable, even ifsome names such as "agreement", "exchange of notes","exchange of letters", "memorandum of agreement", or"agreed minutes", may be more common than others.29

23 See first report by Sir Hersch Lauterpacht, Yearbook ofthe International Lazv Commission, 1953 (United Nations pub-lication, Sales No. : 59.V.4), vol. II , pp. 101-106.

2 4 See on this subject the commentaries to Sir Gerald Fitz-maurice's second report (Yearbook of the International LawCommission, 1957 (United Nations publication, Sales No . :57.V.5), vol. II, p. 16, paras. 115, 120, 125-128 and 165-168);his third report (Yearbook of the International Law Commis-sion, 1958 (United Nations publication, Sales No. : 58.V.I), vol.II , p. 20, paras. 90-93).

It is true that some types of instruments are used morefrequently for some purposes rather than others; it isalso true that some titles are more frequently attachedto some types of transaction rather than to others. Butthere is no exclusive or systematic use of nomenclaturefor particular types of transaction.

(6) Fourthly, the use of the term "treaty" as ageneric term embracing all kinds of international agree-ments in written form is accepted by the majority ofjurists.26

(7) Even more important, the generic use of theterm "treaty" is supported by two provisions of theStatute of the International Court of Justice. In Article36, paragraph 2, amongst the matters in respect ofwhich States parties to the Statute can accept the com-pulsory jurisdiction of the Court, there is listed "a. theinterpretation of a treaty". But clearly, this cannot beintended to mean that States cannot accept the com-pulsory jurisdiction of the Courts for purposes of theinterpretation of international agreements not actuallycalled treaties, or embodied in instruments having an-other designation. Again, in Article 38, paragraph 1,the Court is directed to apply in reaching its decisions,"a. international conventions". But equally, this cannotbe intended to mean that the Court is precluded fromapplying other kinds of instruments embodying inter-national agreements, but not styled "conventions". Onthe contrary, the Court must and does apply them. Thefact that in one of these two provisions dealing withthe whole range of international agreements the termemployed is "treaty" and in the other the even moreformal term "convention" serves to confirm that theuse of the term "treaty" generically in the present arti-cles to embrace all international agreements is perfectlylegitimate. Moreover, the only real alternative wouldbe to use for the generic term the phrase "internationalagreement", which would not only make the draftingmore cumbrous but would sound strangely today, whenthe "law of treaties" is the term almost universally em-ployed to describe this branch of international law.

(8) The term "treaty", as used in the draft articlecovers only international agreements made between"two or more States or other subjects of internationallaw". The phrase "other subjects of international law"is designed to provide for treaties concluded by: (a)international organizations, (b) the Holy See, whichenters into treaties on the same basis as States, and (c)other international entities, such as insurgents, whichmay in some circumstances enter into treaties. Thephrase is not intended to include individuals or corpora-tions created under national law, for they do not possesscapacity to enter into treaties nor to enter into agree-ments governed by public international law.27

2 5 In his article "The Names and Scope of Treaties" (Amer-ican Journal of International Law, 51 (1957), No. 3, p. 574),Mr. Denis P. Myers considers no less than thirty-eight differentappellations; see also the list given in Sir Hersch Lauterpacht'sfirst report (Yearbook 1953, vol. II, p. 101), paragraph 1 of thecommentary to his article 2. Article 1 of the General Assemblyregulation concerning registration speaks of "every treaty orinternational agreement whatever its form and descriptivename."

26 Lord McNair, Law of Treaties (1961) p. 22; Rousseau,Principes generaux du droit international public, p. 132 et seq.See also the opinion of Louis Renault as long ago as 1869:". . . . every agreement arrived at between . . . . States, inwhatever way it is recorded (treaty, convention, protocol, mu-tual declaration, exchange of unilateral declaration)." (transla-tion) Introduction a I'etude du droit international, pp. 33-34.

27 As to this point and the general question of the capacityof subjects of international law to enter into treaties, see furtherthe commentary to article 3.


(9) The phrase "governed by international law"serves to distinguish between international agreementsregulated by public international law and those which,although concluded between two States, are regulatedby the national law of one of the parties (or by someother national law system chosen by the parties).

(10) The use of the term "treaty" in the draft arti-cles is confined to international agreements expressedin writing. This is not to deny the legal force of oralagreements under international law or that some of theprinciples contained in later parts of the Commission'sdraft articles on the law of treaties may have rele-vance in regard to oral agreements. But the term"treaty" is commonly used as denoting an agreement inwritten form, and in any case the Commission con-siders that, in the interests of clarity and simplicity, itsdraft articles on the law of treaties must be confined toagreements in written form. On the other hand, althoughthe classical form of treaty was a single formal instru-ment, in modern practice international agreements arefrequently concluded not only by less formal instru-ments but also by means of two or more related instru-ments. The obvious examples are exchanges of notesand exchanges of letters. Another is the case of agree-ments concluded by means of "declarations" made sepa-rately but related to each other either directly or througha connecting instrument. The definition, by the phrase"whether embodied in a single instrument or two ormore related instruments", brings these forms of inter-national agreement within the term "treaty" as well asall those embodied in a single instrument.

(11) "Treaty in simplified form". As already indi-cated in paragraph 4 of the present commentary, the lawof treaties for the most part applies in the same mannerto formal treaties and to treaties in simplified form, butin the sphere of conclusion and entry into force somedifferences may be found to exist. In point of fact, formaland informal treaties are so often employed for pre-cisely the same kind of transaction that the number ofcases where it can be said with truth that different princi-ples apply to formal and informal treaties are extremelyfew. Nevertheless, in one or two instances a distinctionneeds to be drawn between treaties in simplified formand other treaties (e.g., articles 4 and 10). The distinc-tion is not altogether easy to express owing to the greatvariety in the use of treaty forms and the somewhat in-discriminate nomenclature of treaties. In general, treatiesin simplified form identify themselves by the absence ofone or more of the characteristics of the formal treaty.But it would be difficult to base the distinction infalliblyupon the absence or presence of any one of these charac-teristics. Ratification, for example, though not usuallyrequired for treaties in simplified form is by no meansunknown. Nevertheless, the treaty forms falling underthe rubric "treaties in simplified form" do in most casesidentify themselves by their simplified procedure. TheCommission has, therefore, defined this form of treatyby reference to its simplified procedure and by mention-ing typical examples.

(12) "General multilateral treaty." Multiplication ofthe number of States participating in the drawing up ofa treaty may raise problems in regard to the procedurefor the adoption, signing and authentication of the treatyand in regard to the admission of additional parties, theacceptance of reservations, entry into force and othermatters. The problem is also posed whether differentrules may, perhaps, apply to treaties drawn up by alimited number of States and those drawn up by a largenumber or between those to which only a limited group

of States may become parties and those to which all ora very large number of States may become parties. TheCommission, having given close attention to these prob-lems, found that for most purposes the relevant distinc-tion is between treaties drawn up at a conference con-vened by the States themselves and those drawn up inan international organization or at a conference con-vened by an international organization. But in one ortwo cases the Commission found it neecssary to have re-gard also to other criteria. One of these cases was theprocedure for admitting additional States to participa-tion in a multilateral treaty. Here, the Commission foundthat the relevant distinction is between "general multi-lateral treaties" and other multilateral treaties. Accord-ingly, it became necessary to define a "general multilateraltreaty" and the Commission took as the basis of its defini-tion the general character of the treaty from the point ofview of the provisions of the treaty being a matter ofgeneral concern to the international community as awhole.

(13) "Reservation." The need for this definitionarises from the fact that States, when signing, ratifying,acceding to, accepting or approving a treaty, not infre-quently make declarations as to their understanding ofsome matter or as to their interpretation of a particularprovision. Such a declaration may be a mere clarificationof the State's position or it may amount to a reservation,according as it does or does not vary or exclude theapplication of the terms of the treaty as adopted.

(14) The remaining definitions do not require com-ment, as they are sufficiently explained in the relevantarticles and commentaries.

(15) Paragraph 2 is designed to safeguard the posi-tion of States in regard to their internal law and usages,and more especially in connexion with the ratification oftreaties. In many countries, the constitution requires thatinternational agreements in a form considered under theinternal law or usage of the State to be a "treaty" mustbe endorsed by the legislature or have their ratificationauthorized by it—perhaps by a specific majority—whereas other forms of international agreement are notsubject to this requirement. Accordingly, it is quiteessential that the definition given to the term "treaty" inthe present articles should do nothing to disturl) or affectin any way the existing domestic rules or usages whichgovern the classification of international agreementsunder national law.

Article 2

Scope of the present articles

1. Except to the extent that the particular con-text may otherwise require, the present articlesshall apply to every treaty as defined in article 1,paragraph 1 (a).

2. The fact that the present articles do notapply to international agreements not in writtenform shall not be understood as affecting the legalforce that such agreements possess under interna-tional law.

Commentary

(1) Paragraph 1 of this article has to be read in con-junction with the definition of "treaty" in article 1, fromwhich it appears that the draft articles apply to everyinternational agreement in written form concluded be-tween two or more subjects of international law and


governed by international law. The words "except to theextent that a particular context may otherwise require"preface the statement as to the scope of the presentarticles simply as a recognition of the fact that some oftheir provisions are, either by their express terms or bytheir inherent nature, only applicable to certain kinds oftreaties.

(2) As already stated in paragraph 10 of the com-mentary to article 1, the restriction of the draft articlesto agreements in written form does not mean that theCommission considers oral international agreements tobe without legal force. Accordingly, in order to removeany possibility of misunderstanding, paragraph 2 of thepresent article, without entering further into the matter,expressly preserves such legal force as oral agreementspossess under international law.

Article 3

Capacity to conclude treaties

1. Capacity to conclude treaties under interna-tional law is possessed by States and by other sub-jects of international law.

2. In a federal State, the capacity of the memberstates of a federal union to conclude treaties de-pends on the federal constitution.

3. In the case of international organizations,capacity to conclude treaties depends on the con-stitution of the organization concerned.

Commentary

(1) Some members of the Commission were doubtfulabout the need for an article on capacity in internationallaw to conclude treaties. They pointed out that capacityto enter into diplomatic relations had not been dealt within the Vienna Convention and suggested that, if it wereto be dealt with in the law of treaties, the Commissionmight find itself codifying the whole law concerning the"subjects" of international law. Other members felt thatthe question of capacity is more prominent in the law oftreaties than in the law of diplomatic intercourse andimmunities and that the draft articles should contain atleast some general provisions concerning capacity toconclude treaties. The Commission, while holding that itwould not be appropriate to enter into all the detailedproblems of capacity which may arise, decided to includethe present article setting out three broad provisions con-cerning capacity to conclude treaties.

(2) Paragraph 1 lays down the general principle thattreaty-making capacity is possessed by States and byother subjects of international law. The term "State" isused here with the same meaning as in the Charter ofthe United Nations, the Statute of the Court, the GenevaConventions on the Law of the Sea and the ViennaConvention on Diplomatic Relations; i.e., it means aState for the purposes of international law. The phrase"other subjects of international law" is primarily in-tended to cover international organizations, to removeany doubt about the Holy See and to leave room formore special cases such as an insurgent communityto which a measure of recognition has been accorded.

(3) Paragraph 228 deals with the case of federalStates whose constitutions, in some instances, allow totheir member States a measure of treaty-making capac-

28 For the reasons given by him in the summary records ofthe 658th and 666th meetings, Mr. Briggs does not accept theprovisions of paragraph 2 of article 3.

ity. It does not cover treaties made between two units ofthe federation. Agreements between two member Statesof a federal State have a certain similarity to interna-tional treaties and in some instances certain principles oftreaty law have been applied to them by analogy. How-ever, those agreements operate within the legal regimeof the constitution of the federal State, and to bringthem expressly within the terms of the present articleswould be to risk a conflict between international anddomestic law. Paragraph 2, therefore, is concerned onlywith treaties made by the federal Government itself, orby a unit of the federation, with an outside State. Morefrequently, the treaty-making capacity is vested exclu-sively in the federal Government, but there is no rule ofinternational law which precludes the component Statesfrom being invested with the power to conclude treatieswith third States. A question may arise in some cases asto whether the component State concludes the treaty asan organ of the federal State or in its own right. But onthis point also the solution has to be sought in the provi-sions of the federal constitution.

(4) Paragraph 3 states that the treaty-making capacityof an international organization depends on its constitu-tion. The term "constitution" has been chosen deliber-ately in preference to "constituent instrument." For thetreaty-making capacity of an international organizationdoes not depend exclusively on the terms of the constitu-ent instrument of the organization but also on the deci-sions and rules of its competent organs. Comparativelyfew constituent treaties of international organizationscontain provisions concerning the conclusion of treatiesby the organization; nevertheless, the great majority oforganizations have considered themselves competent toenter into treaties for the purpose of furthering the aimsof the organization. Even when, as in the case of theCharter, the constituent treaty has contained express pro-visions concerning the making of certain treaties, theyhave not been considered to exhaust the treaty-makingpowers of the organization. In this connexion, it is onlynecessary to recall the dictum of the International Courtin its opinion on Reparation for Injuries Suffered in theService of the United Nations.29 "Under internationallaw, the organization must be deemed to have those pow-ers which, though not expressly provided for in theCharter, are conferred upon it by necessary implicationas being essential to the performance of its duties." Ac-cordingly, important although the provisions of the con-stituent treaty of an organization may be in determiningthe proper limits of its treaty-making activity, it is theconstitution as a whole—the constituent treaty togetherwith the rules in force in the organization—that deter-mine the capacity of an international organization toconclude treaties.

SECTION II : CONCLUSION OF TREATIES BY STATES

Article 4Authority to negotiate, draw up, authenticate, sign,

ratify, accede to, approve or accept a treaty

1. Heads of State, Heads of Government andForeign Ministers are not required to furnish anyevidence of their authority to negotiate, draw up,authenticate or sign a treaty on behalf of theirState.

2. (a) Heads of a diplomatic mission are notrequired to furnish evidence of their authority tonegotiate, draw up and authenticate a treaty be-

291.C.J, Reports 1949, p. 182.


tween their State and the State to which they areaccredited.

(b) The same rule applies in the case of theHeads of a permanent mission to an internationalorganization in regard to treaties drawn up underthe auspices of the organization in question or be-tween their State and the organization to whichthey are accredited.

3. Any other representative of a State shall berequired to furnish evidence, in the form of writ-ten credentials, of his authority to negotiate,draw up and authenticate a treaty on behalf of hisState.

4. (a) Subject to the provisions of paragraph 1above, a representative of a State shall be requiredto furnish evidence of his authority to sign (wheth-er in full or ad referendum) a treaty on behalf ofhis State by producing an instrument of fullpowers.

(Z>) However, in the case of treaties in simplifiedform, it shall not be necessary for a representativeto produce an instrument of full powers, unlesscalled for by the other negotiating State.

5. In the event of an instrument of ratification,accession, approval or acceptance being signed bya representative of the State other than the Headof State, Head of Government or Foreign Minister,that representative shall be required to furnish evi-dence of his authority.

6. (a) The instrument of full powers, whererequired, may either be one restricted to the per-formance of the particular act in question or agrant of full powers which covers the performanceof that act.

(b) In case of delay in the transmission of theinstrument of full powers, a letter or telegram evi-dencing the grant of full powers sent by the com-petent authority of the State concerned or by thehead of its diplomatic mission in the countrywhere the treaty is negotiated shall be provision-ally accepted, subject to the production in duecourse of an instrument of full powers, executed inproper form.

(c) The same rule applies to a letter or telegramsent by the Head of a permanent mission to an in-ternational organization with reference to a treatyof the kind mentioned in paragraph 2 (b) above.

Commentary

(1) Authority to represent the State in doing any ofthe acts by which treaties are negotiated and concludedis a matter to be decided by each State in accordancewith its own internal laws and usages. However, other.States have a legitimate interest in the matter to the ex-tent of being entitled to reassure themselves that a repre-sentative with whom they are dealing has authority fromhis State to carry out the transaction in question. In somecases, the very position of the representative in the Stategives this assurance; where this is not so, there isnormally a right to call for evidence of authority of theperson concerned to act in the particular transaction onbehalf of his State. The present article seeks to specifythe cases in which, according to modern practice, noevidence of authority is required and those in which arepresentative either must produce evidence of hisauthority or is liable to do so if called upon.

(2) Heads of State, Heads of Government and For-eign Ministers are considered in virtue of their officesand functions to possess an authority to act for theirStates in negotiating, drawing up, authenticating or sign-ing a treaty. In the case of Foreign Ministers this wasexpressly recognized by the Permanent Court of Inter-national Justice in the Eastern Greenland Case'60 in con-nexion with the "Ihlen Declaration." Accordingly, para-graph 1 lays down that no evidence is required of theauthority of these officers of State for the purposes men-tioned.

(3) Similarly, in accordance with accepted practice,paragraph 2 provides that the Head of a diplomatic mis-sion is to be considered to have authority to negotiate,draw up and authenticate a treaty between his State andthe State to which he is accredited. Thus, article 3,paragraph 1 (c), of the Vienna Convention on Diplo-matic Relations provides that "the functions of a diplo-matic mission consist, inter alia, in . . . negotiating withthe Government of the receiving State". However, theassumption does not extend in the case of the Head of adiplomatic mission to signing a treaty with binding effect ;in carrying out that act he is governed by the rule inparagraph 4 of the present article. The practice of estab-lishing permanent missions at the headquarters of certaininternational organizations to represent the State and toinvest the permanent representatives with powers simi-lar to those of the Head of a diplomatic mission is nowextremely common. The Commission therefore considersthat the rule in paragraph 2 should also apply to suchpermanent representatives to international organizations.

(4) Paragraph 3 lays down the general rule thatrepresentatives other than those already mentioned areunder an obligation to produce evidence, in the form ofwritten credentials, of their authority to negotiate, drawup and authenticate a treaty, even if this requirementmay sometimes be overlooked or waived.

(5) As already indicated in regard to the Head of adiplomatic mission, authority to negotiate, draw up andauthenticate is distinct from authority to sign. While au-thority to sign, if possessed by the representative at thestage of negotiation, may reasonably be held to implyauthority to negotiate, the reverse is not true; and in thecase of treaties not in simplified form a further authorityspecifically empowering him to sign is necessary beforesignature can be affixed. The practice of Governments inregard to treaties of which the Secretary-General of theUnited Nations is depositary indicates that no distinctionis made for this purpose between signature and signaturead referendum, and the rule has accordingly been sostated in paragraph 4 (a) of the article.

(6) In the case of treaties in simplified form, theproduction of an instrument of full powers is not usuallyinsisted upon in practice. As it is possible to imagine cir-cumstances in which the other State might wish to assureitself of a representative's power to sign an exchange ofnotes or other treaty in simplified form, the Commissionhas proposed a rule in paragraph 4 (b) which dispenseswith the production of full powers, "unless called for bythe other negotiating State".

(7) Instruments of ratification, accession, acceptanceand approval are normally signed by Heads of State,though in modern practice this is sometimes done byHeads of Government or by Foreign Ministers. In thesecases, evidence of authority to sign the instrument is notrequired. However, in rare cases—usually because ofspecial urgency to deposit the instrument—the Head of

30 P.C.I.J., Series A/B.53, p. 71.


a mission or a permanent representative to an organiza-tion may be instructed to sign and deposit such an in-strument ; in these cases, according to the practice of theSecretary-General, full powers are demanded and pro-duced. It is these cases for which paragraph 5 seeks toprovide.

(8) Paragraph 6 deals with the form of full powersand with cases where less formal evidence may provi-sionally be accepted in lieu of full powers. Normally, fullpowers are issued ad hoc for the execution of the par-ticular act in question, but there does not appear to beany reason why full powers should not be couched in awider form provided that they leave no doubt as to thescope of the powers which they confer. Some countries,it is understood, may adopt the practice of issuing tocertain Ministers, as part of their normal commissions,wide full powers which, without mentioning any par-ticular treaty, confer on the Minister authority to signtreaties or categories of treaties on behalf of the State.In addition, some permanent representatives at theheadquarters of international organizations that are thedepositaries of multilateral treaties are clothed by theirStates with such wide full powers, either included intheir credentials or contained in a separate instrument.The Commission will be glad eventually to have informa-tion from Governments as to their practice in regard tothese forms of full powers. In the meanwhile, it seemsjustifiable tentatively to insert in paragraph 6 (a) a pro-vision allowing full powers framed to cover all treatiesor specific categories of treaty.

(9) Paragraphs 6 (b) and (c) recognize a practiceof comparatively recent development which is of consid-erable utility and should serve to render initialling andsignature ad referendum unnecessary save in exceptionalcircumstances. A letter or telegram is, in case of urgency,accepted as provisional evidence of authority, subject tothe production in due course of full powers executed inproper form.

Article SNegotiation and drawing up of a treaty

A treaty is drawn up by a process of negotiationwhich may take place either through the diplo-matic or some other agreed channel, or at meet-ings of representatives or at an international con-ference. In the case of treaties negotiated underthe auspices of an international organization, thetreaty may be drawn up either at an internationalconference or in some organ of the organizationitself.

Commentary

The Commission, although it recognized the contentsof this article to be more descriptive than normative, de-cided to include it, since the process of drawing up thetext is an essential preliminary to the legal act of theadoption of the text dealt with in the next article.Article 5, in short, provides a logical connecting link be-tween article 4 and article 6.

Article 6

Adoption of the text of a treaty

The adoption of the text of a treaty takes place:(a) In the case of a treaty drawn up at an inter-

national conference convened by the States con-

cerned or by an international organization, by thevote of two-thirds of the States participating in theconference, unless by the same majority they shalldecide to adopt another voting rule;

(b) In the case of a treaty drawn up within anorganization, by the voting rule applicable in thecompetent organ of the organization in question;

(c) In other cases, by the mutual agreement ofthe States participating in the negotiations.

Commentary

(1) This article deals with the voting rule by whichthe text of the treaty is "adopted", i.e. the voting ruleby which the form and content of the proposed treaty aresettled. At this stage, the negotiating States are concernedonly with drawing up the text of the treaty as a docu-ment setting out the provisions of the proposed treaty;and their votes, even when cast at the end of the negoti-ations in favour of adopting the text as a whole, relatesolely to this process. A vote cast at this stage, therefore,is not in any sense an expression of the State's agree-ment to be bound by the provisions of the text, whichcan only become binding upon it by a further expressionof its consent (signature, ratification, accession or ac-ceptance) .

(2) In former times, the adoption of the text of atreaty almost always took place by the agreement of allthe States participating in the negotiations and unanimitycould be said to be the general rule. The growth of thepractice of drawing up treaties in large international con-ferences or within international organizations has, how-ever, led to so normal a use of the procedure of majorityvote that, in the opinion of the Commission, it would beunrealistic to lay down unanimity as the general rule forthe adoption of the texts of treaties drawn up at confer-ences or within organizations. Unanimity remains thegeneral rule for bilateral treaties and for treaties drawnup between very few States. But for other multilateraltreaties a different rule must be specified, although, ofcourse, it will always be open to the States concerned toapply the rule of unanimity in a particular case, if theyshould so decide.

(3) Sub-paragraph (a) of the present article dealswith the case of treaties drawn up at international con-ferences and the main questions for the Commissionwere: (i) whether a distinction should be drawn betweenconferences convened by an international organization,and (ii) the principles upon which the voting rule shouldbe determined.

(4) As to the first question, when the General As-sembly convenes a conference, the practice of the Secre-tariat of the United Nations is, after consultation withthe groups and interests mainly concerned, to prepareprovisional or draft rules of procedure for the confer-ence, including a suggested voting rule, for adoption bythe conference itself.31 But it is left to the conference todecide whether to adopt the suggested rule or replace itby another. The Commission therefore concluded that,both in the case of a conference convened by the Statesthemselves and of one convened by an organization,the voting rule for adopting the text is a matter for theStates at the conference.

(5) As to the second question, the rule proposed in31 Cf. General Assembly resolution 366 (IV) of 3 December

!949, "Rules for the calling of international conferences ofStates".


sub-paragraph (a) is that a two-thirds majority shouldbe necessary for the adoption of a text at any interna-tional conference, unless the States at the conferenceshould by the same majority decide to apply a differentvoting rule. While the States at the conference must re-tain the ultimate power to decide the voting rule by whichthey will adopt the text of the treaty, it appears to theCommission to be extremely desirable to fix in the pres-ent articles the procedure by which a conference is toarrive at its decision concerning that voting rule. Other-wise there is some risk of the work of the conferencebeing delayed by long procedural debates concerning thepreliminary voting rule by which it is to decide upon itssubstantive voting rule for adopting the text of the treaty.Some members of the Commission considered that theprocedural vote should be taken by simple majority.Others felt that such a rule might not afford sufficientprotection to minority groups at the conference, for theother States would be able in every case to decide by asimple majority to adopt the text of the treaty by thevote of a simple majority and in that way override theviews of what might be quite a substantial minoritygroup of States at the conference. The rule in sub-paragraph (a) takes account of the interests of minori-ties to the extent of requiring at least two-thirds of theStates to be in favour of proceeding by simple majoritiesbefore recourse can be had to simple majority votes foradopting the text of a treaty. It leaves the ultimate deci-sion in the hands of the conference but at the same timeestablishes a basis upon which the procedural questionscan be speedily and fairly resolved. The Commission feltall the more justified in proposing this rule, seeing thatthe use of a two-thirds majority for adopting the textsof multilateral treaties is now so frequent.

(6) Sub-paragraph (b) deals with the case of treaties,like the Convention on the Prevention and Punishmentof the Crime of Genocide or the Convention on thePolitical Rights of Women, which are drawn up actuallywithin an international organization. Here, the votingrule for adopting the text of the treaty must clearly bethe voting rule applicable in the particular organ in whichthe treaty is adopted.

(7) There remain bilateral treaties and a residue ofmultilateral treaties concluded between a small group ofStates otherwise than at an international conference. Forall these treaties unanimity remains the rule.

Article 7Authentication of the text

1. Unless another procedure has been prescribedin the text or otherwise agreed upon by Statesparticipating in the adoption of the text of thetreaty, authentication of the text may take placein any of the following ways:

(a) Initialling of the text by the representativesof the States concerned;

(b) Incorporation of the text in the final act ofthe conference in which it was adopted;

(c) Incorporation of the text in a resolution ofan international organization in which it wasadopted or in any other form employed in the or-ganization concerned.

2. In addition, signature of the text, whether afull signature or signature ad referendum, shallautomatically constitute an authentication of thetext of a proposed treaty, if the text has not beenpreviously authenticated in another form underthe provisions of paragraph 1 above.

3. On authentication in accordance with theforegoing provisions of the present article, thetext shall become the definitive text of the treaty.

Commentary

(1) Authentication of the text of a treaty is necessaryin order that the negotiating States, before they arecalled upon to decide whether they will become parties tothe treaty, may know finally and definitively what is thecontent of the treaty to which they will be subscribing.There must come a point, therefore, at which the draftwhich the parties have agreed upon is established as beingthe text of the proposed treaty. Whether the States con-cerned will eventually become bound by this treaty is ofcourse another matter, and remains quite open. But theymust have, as the basis for their decision on this question,a final text not susceptible of alteration. Authenticationis the process by which this final text is established, andit consists in some act or procedure which certifies thetext as the correct and authentic text.

(2) Previous drafts on the law of treaties have notrecognized authentication as a distinct part of the treaty-making process. The reason appears to be that until com-paratively recently signature was the normal method ofauthenticating a text, and that signature always has an-other and more important function. For it is also eithera first step towards ratification, acceptance or approvalof the treaty, or an expression of the State's consent tobe bound by it. The authenticating function of signatureis consequently masked by being merged in ii:s otherfunction.32 In recent years, however, other methods ofauthenticating texts of treaties on behalf of all or mostof the negotiating parties have been devised. Examplesare the incorporation of unsigned texts of projected trea-ties in final acts of diplomatic conferences, the procedureof the International Labour Organisation under whichthe signatures of the President of the International La-bour Conference and of the Director-General of the In-ternational Labour Office authenticate the texts of labourconventions, and treaties whose texts are authenticatedby being incorporated in a resolution of an internationalorganization. It is these developments in treaty-makingpractice which render it desirable to deal separately inthe draft articles with authentication as a distinct pro-cedural step in the conclusion of a treaty.

(3) Paragraph 1 of the article sets out the methodsof authentication other than signature, and paragraph 2covers signature as an act of authentication. Signaturehas been dealt with separately because it only operatesas an authenticating act if the treaty has not alreadybeen authenticated in one of the ways mentioned in para-graph 1.

(4) Paragraph 3 states the legal effect of authenti-cation as an act which renders the text definitive. Thismeans that, after authentication, any change in the word-ing of the text would have to be brought out by an agreedcorrection of the authenticated text (see articles 26 and27).

Article 8

Participation in a treaty

1. In the case of a general multilateral treaty,every State may become a party to the treaty un-

32 See Yearbook of the International Law Commission, 1950(United Nations publication, Sales No.: 57.V.3), vol. II, pp.233-234.


less it is otherwise provided by the terms of thetreaty itself or by the established rules of an in-ternational organization.

2. In all other cases, every State may become aparty to the treaty:

(a) Which took part in the adoption of its text,or

(b) To which the treaty is expressly made openby its terms, or

(c) Which although it did not participate in theadoption of the text was invited to attend the con-ference at which the treaty was drawn up, unlessthe treaty otherwise provides.

Article 9

The opening of a treaty to theparticipation of additional States

1. A multilateral treaty may be opened to theparticipation of States other than those to whichit was originally open:

(a) In the case of a treaty drawn up at an inter-national conference convened by the States con-cerned, by the subsequent consent of two-thirdsof the States which drew up the treaty, providedthat, if the treaty is already in force and . . . yearshave elapsed since the date of its adoption, theconsent only of two-thirds of the parties to thetreaty shall be necessary;

(6) In the case of a treaty drawn up either in aninternational organization or at an internationalconference convened by an international organiza-tion, by a decision of the competent organ of theorganization in question, adopted in accordancewith the applicable voting rule of such organ.

2. Participation in a treaty concluded betweena small group of States may be opened to Statesother than those mentioned in article 8 by the sub-sequent agreement of all the States which adoptedthe treaty, provided that, if the treaty is already inforce and . . . years have elapsed since the dateof its adoption, the agreement only of the partiesto the treaties shall be necessary.

3. (a) When the depositary of a treaty receivesa formal request from a State desiring to be ad-mitted to participation in the treaty under theprovisions of paragraphs 1 and 2 above, the de-positary :

(i) In a case falling under paragraph 1 (a) andparagraph 2, shall communicate the request to theStates whose consent to such participation is speci-fied in paragraph 1 (a) as being material;

(ii) In a case falling under paragraph 1 (b),shall bring the request, as soon as possible, beforethe competent organ of the organization in ques-tion.

(6) The consent of a State to which a requesthas been communicated under paragraph 3 (a) (i)above shall be presumed after the expiry of twelvemonths from the date of the communication, if ithas not notified the depositary of its objection tothe request.

4. When a State is admitted to participation ina treaty under the provisions of the present articlenotwithstanding the objection of one or more

States, an objecting State may, if it thinks fit, noti-fy the State in question that the treaty shall notcome into force between the two States.

Commentary

(1) Articles 8 and 9 define the States to which it isopen to become parties to a treaty. Article 833 coverswhat may be termed original participation in a treaty;that is, it defines the States which may become parties asfrom the date of the adoption of the text of the treaty.Article 9 lays down the conditions under which partici-pation in treaties may be extended to additional Statesby decisions subsequent to the adoption of the text.

(2) The Commission gave particular attention to theproblem of participation in general multilateral treatieswhich it considered to be of special importance in thisconnexion. It was unanimous in thinking that these trea-ties because of their special character should, in principle,be open to participation on as wide a basis as possible.Some members of the Commission considered that, asthese treaties are intended to be universal in their applica-tion, they should be open to participation by every State.They took the view that it is for the general good thatall States should become parties to such treaties, and thatin a world community of States, no State should be ex-cluded from participation in treaties of this character.They did not think that the principle of the freedom ofStates to determine for themselves the extent to whichthey are prepared to enter into treaty relations with otherStates was any obstacle to the Commission formulating arule under which general multilateral treaties would beopen to participation by every State. For it not infre-quently happens already that States find themselves par-ties to the same treaties and members of the same inter-national organization as States with which they have nodiplomatic relations or which they do not even recognize.

(3) Other members of the Commission did not feeljustified in setting aside, even in the case of general multi-lateral treaties, so fundamental a principle of treaty lawas the freedom of the contracting States to determine, bythe clauses of the treaty itself, the States which may be-come parties to it. On the other hand, it was consideredby many members that the special character of generalmultilateral treaties justifies, in those cases where thetreaty does not specify the categories of States to whichit is to be open, a presumption that every State maybecome a party to it. They recognized that the generalmultilateral treaties of recent years, such as the GenevaConventions on the Law of the Sea and the Vienna Con-vention on Diplomatic Relations, had not been madeopen to all States but to specified, if very wide, categoriesof States. Nevertheless, they considered that on groundsof principle and as a measure of progressive develop-ment of international law, the Commission should pro-pose to Governments the rule which appears in para-graph 1 of article 8. These members also expressed theview that the problem of participation in general multi-lateral treaties should be kept entirely distinct from theproblem of recognition of States.

(4) Another group of members, while fully sharingthe view that general multilateral treaties should, in prin-ciple, be open to all States, did not think that the Com-mission would be justified in including such a presump-tion as to the intention of the contracting States, havingregard to the clear indication of a contrary intention on

33 For the reasons given by him in the summary records of the648th (paras. 10-22) and 667th meetings, Mr. Briggs does notaccept the provisions of article 8.


the part of States in recent practice, and especially inUnited Nations practice. For it had become common formin general multilateral treaties drawn up under the aus-pices of the United Nations and the specialized agencies,as well as in a number of other treaties, to insert a clauseopening them to all Members of the United Nations andof the specialized agencies, to all parties to the Statute ofthe International Court of Justice and to any other Stateinvited by the General Assembly. This formula, they con-sidered, opens the treaty to an exceedingly wide list ofStates and, in effect, only excludes controversial cases.These members did not think that the Commission's pro-posals ought to go beyond this practice, which hingesupon the decision in doubtful cases being taken by theGeneral Assembly or by the competent organ of someother organization of world-wide membership. Accord-ingly, they advocated confining article 8 to the provisionsset out in paragraph 2 and leaving the case of generalmultilateral treaties to be covered by paragraph 1 ofarticle 9. The effect of the latter paragraph in regard tothe large body of treaties concluded under the auspicesof international organizations is to put the decision in thehands of the competent organ of the organization con-cerned, as under existing practice, and in other cases tomake it subject to a two-thirds vote of the States con-cerned. These members considered that a rule puttingthe decision in doubtful cases in the hands of the Gen-eral Assembly, or of the competent organ of some otherorganization or of a two-thirds majority of the interestedStates, was also extremely desirable from the point ofview of the depositary. Otherwise the Secretary-Generalor any other depositary would have to choose betweenaccepting every signature, accession, etc. from any groupclaiming to be a State and making delicate and perhapscontroversial political appreciations more appropriateto the General Assembly or some other political organ.

(5 ) The view that, where a general multilateral treatyis silent concerning the States to which it is open everyState must be presumed to have a right to become a partyto the treaty, prevailed in the Commission, and the ruleis so stated in article 8, paragraph 1.

(6) There still remains, however, the problem of gen-eral multilateral treaties which specify the categories ofStates to which they are open and thereby exclude theprinciple in article 8, paragraph 1. These treaties theCommission has sought to cover in article 9, paragraph 1,which provides for them to be made open to additionalStates, either by a two-thirds majority of the Stateswhich drew up the treaty, or by the decision of the com-petent organ of an international organization. The for-mula "by a two-thirds majority of the States which drewup the treaty" is, of course, based on the fact that, asmentioned in the commentary on article 6, the adoptionof a treaty in modern practice takes place in the greatmajority of cases by a two-thirds majority. In otherwords, the proposal is that the treaty should be madeopen to additional States by the same majority as willnormally have been applied in adopting the participationclause of the treaty. But, where the treaty has beendrawn up either within an organization or at a confer-ence convened by an organization, the proposal is thatthe decision should rest with its competent organ. TheCommission considered that these provisions are suit-able also for the case of multilateral treaties which,though not of a general character, have been concludedbetween a considerable number of States. Accordingly,article 9, paragraph 1, applies to these treaties as wellas to general multilateral treaties.

(7) Paragraph 2 of article 9 is therefore limited to

treaties concluded between a small group of States andfor these treaties it is thought that the unanimity ruleshould be retained.

(8) Paragraph 3 indicates the procedures for dealingwith requests for admission to treaties under the twopreceding paragraphs.

(9) Paragraph 4 gives effect to the right of a Stateto decide whether or not it will enter into treaty rela-tions with another State.

(10) Finally, the Commission gave particular atten-tion to the problem of the accession of new States togeneral multilateral treaties, concluded in the past, whoseparticipation clauses were limited to specific categoriesof States. New States may very well wish to becomeparties to some of these treaties and, if so, it is clearlydesirable that legally they should be in a position to doso. There are, however, certain difficulties in the way ofachieving this result easily through the provisions of thepresent draft articles. One is that, in the nature ofthings, there is bound to be some delay before thesedraft articles, assuming that ultimately a convention re-sults from them, could become effective. Another is thata convention only binds the parties to it, and unless allthe surviving parties to the older multilateral treaties inquestion became actual parties to the new convention onthe conclusion of treaties, there might be doubt aboutthe effectiveness of the convention to create a right ofaccession to the old treaties. The Commission, therefore,suggests that consideration should be given to the pos-sibility of solving this problem more expeditiously byother procedures. It seems to be established that theopening of a treaty to accession by additional States,while it requires the consent of the States entitled to avoice in the matter, does not necessitate the negotiationof a fresh treaty amending or supplementing the earlierone. One possibility would be for administrative actionto be taken through the depositaries of the individualtreaties to obtain the necessary consents of the Statesconcerned in each treaty; indeed, it is known that actionof this kind has been taken in some cases. Another ex-pedient that might be considered is whether action toobtain the necessary consents might be taken in the formof a resolution of the General Assembly by which eachMember State agreed that a specified list of multilateraltreaties of a universal character should be opened toaccession by new States. It is true that there might bea few non-member States whose consent might also benecessary, but it should not be impossible to devise ameans of obtaining the assent of these States to theterms of the resolution.

Article 10

Signature and initialling of the treaty

1. Where the treaty has not been signed at theconclusion of the negotiations or of the confer-ence at which the text was adopted, the Statesparticipating in the adoption of the text may pro-vide either in the treaty itself or in a separateagreement:

(a) That signature shall take place on a subse-quent occasion; or

(b) That the treaty shall remain open for signa-ture at a specified place either indefinitely or untila certain date.

2. (a) The treaty may be signed uncondition-ally; or it may be signed ad referendum to thecompetent authorities of the State concerned, in


which case the signature is subject to confirmation.(b) Signature ad referendum, if and so long as

it has not been confirmed, shall operate only as anact authenticating the text of the treaty.

(c) Signature ad referendum, when confirmed,shall have the same effect as if it had been a fullsignature made on the date when, and at the placewhere, the signature ad referendum was affixedto the treaty.

3. (a) The treaty, instead of being signed, maybe initialled, in which event the initialling shalloperate only as an authentication of the text. Afurther separate act of signature is required toconstitute the State concerned a signatory of thetreaty.

(b) When initialling is followed by the subse-quent signature of the treaty, the date of the sig-nature, not that of the initialling, shall be the dateupon which the State concerned shall become asignatory of the treaty.

Commentary

(1) The antithesis in paragraph 1 of the presentarticle is between the treaty that remains open for sig-nature until a certain date—or else indefinitely—and thetreaty that does not. Most treaties, in particular bilateraltreaties and treaties negotiated between a small groupof States, do not remain open for signature. They aresigned either immediately on the conclusion of the nego-tiation, or on some later date especially appointed for thepurpose. In either case, States intending to sign must doso on the occasion of the signature, and cannot do sothereafter. They may of course still be able to becomeparties to the treaty by some other means, e.g. accessionor acceptance.

(2) In the case of treaties negotiated at internationalconferences, there is a growing tendency to include aclause leaving them open for signature until a certaindate (usually six months after the conclusion of theconference). In theory, there is no reason why suchtreaties should not remain open for signature indefi-nitely, and cases of this are on record.34 However, themore general practice is to leave multilateral treatiesopen for signature for a specific period and this practicehas considerable advantages. The closing stages of in-ternational conferences are apt to be hurried. Often theGovernments are not in possession of the final text,which may only have been completed at the last moment.For that reason, many representatives do not sign thetreaty in its final form. Yet, even if the treaty makes itpossible to become a party by accession, many Govern-ments would prefer to do so by signature and ratifica-tion. It is also desirable to take account of the fact thatGovernments which are not sure of being able eventuallyto ratify, accept or approve a treaty may neverthelesswish for an opportunity of giving that measure of sup-port to the treaty which signature implies. These pre-occupations can most easily be met by leaving the treatyopen for signature at the seat of the "headquarters"Government or international organization.

34 Article 14 of the Convention on treaties, adopted at Havanaon 18 February 1928, provides as follows: "The present Con-vention shall be ratified by the signatory States and shall remainopen for signature and for ratification by the States representedat the Conference and which have not been able to sign it".This Convention, together with seven further Conventionsadopted at the Sixth Conference of American States held atHavana, merely states that the Convention shall remain open forsignature and ratification, without specifying any time limit.

(3) Paragraphs 2 and 3 deal with signature ad refer-endum and initialling. Signature ad referendum, as in-dicated in paragraph 2, is not full signature, but it willrank as one if subsequently confirmed by the Govern-ment on whose behalf it was made. Initialling is notnormally the equivalent of signature and operates inmost cases as an act authenticating the text. The prin-cipal differences between initialling and signature adreferendum are:

(a) Whereas signature ad referendum is basicallyboth an authenticating act (where the text has not other-wise been authenticated already) and a provisional sig-nature of the treaty, initialling is and always remainsan authenticating act only, which is incapable of beingtransformed into full signature by mere confirmation;and

(b) Whereas confirmation of a signature ad referen-dum has retroactive effect causing the State to rank asa signatory from the date of the signature ad refer-endum, a signature subsequent to initialling has no re-troactive effect and the State concerned becomes asignatory only from the date of the subsequent act ofsignature.

(4) There may also be a certain difference in theoccasions on which these two procedures are employed.Initialling is employed for various purposes. One isto authenticate a text at a certain stage of the negoti-ations, pending further consideration by the Govern-ments concerned. It may also be employed by a repre-sentative who has authority to negotiate, but is not inpossession of (and is not at the moment able to obtain)an actual authority to sign.35 Sometimes it may be re-sorted to by a representative who, for whatever reasons,is acting on his own initiative and without instructions,but who nevertheless considers that he should authenti-cate the text. Signature ad referendum may also beresorted to in some of these cases, but at the presenttime is probably employed mainly on actual govern-mental instructions in cases where the Governmentwishes to perform some act in relation to the text, butis unwilling to be committed to giving it even the pro-visional support that a full signature would imply.

Article 11

Legal effects of a signature

1. In addition to authenticating the text of thetreaty in the circumstances mentioned in article 7,paragraph 2, the signature of a treaty shall havethe effects stated in the following paragraphs.

2. Where the treaty is subject to ratification,acceptance or approval, signature does not estab-lish the consent of the signatory State to be boundby the treaty. However, the signature:

(a) Shall qualify the signatory State to proceedto the ratification, acceptance or approval of thetreaty in conformity with its provisions; and

(b) Shall confirm or, as the case may be, bringinto operation the obligation in article 17, para-graph !.

3. Where the treaty is not subject to ratification,acceptance or approval, signature shall:

(a) Establish the consent of the signatory Stateto be bound by the treaty; and

35 Today, when a telegraphic authority, pending the arrivalof written full powers, would usually be accepted (see article 4above, and the commentary thereto), the need for recourse toinitialling on this ground ought only to arise infrequently.


(b) If the treaty is not yet in force, shall bringinto operation the obligation in article 17, para-graph 2.

Commentary

(1) Paragraph 1 recalls, for the sake of complete-ness, the rule that, if the text has not already^ beenauthenticated in one of the ways mentioned in article 7,paragraph 1, signature will automatically constitute anauthentication of the text by the signatory State.

(2) Paragraph 2 deals with the cases where the sig-nature does not constitute a final expression of theState's consent to be bound by the treaty but requiresa further act of ratification, acceptance or approval tohave that effect. This may happen either because thetreaty itself provides for signature plus ratification (oracceptance or approval) or because the signature of theparticular State is expressed to be subject to ratification(or acceptance or approval). The primary effect of thesignature in these cases is to establish the right of thesignatory State to become a party to the treaty by sub-sequently completing the necessary act of ratification or,as the case may be, acceptance or approval of the treaty;and paragraph 2 (a) so provides.

(3) Paragraph 2 (b) concerns the obligation whichattaches to a State which has signed a treaty "subjectto ratification, acceptance or approval" even though ithas not yet established its consent to be bound by thetreaty. This obligation is set out in article 17, paragraph1, where it is provided that such a State is "under anobligation of good faith, unless and until it shall havesignified that it does not intend to become a party to thetreaty, to refrain from acts calculated to frustrate theobjects of the treaty, if and when it should come intoforce". In most cases, a signatory State will already beunder this obligation by reason of having taken part inthe negotiation, drawing up or adoption of the treaty;but, when a treaty is made open to signature by Stateswhich did not take part in the negotiation, drawing upor adoption of the treaty, they will come under the sameobligation if they sign "subject to ratification, acceptanceor approval".

(4) There is also some authority for the propositionthat a State which signs a treaty "subject to ratification,acceptance or approval" comes under a certain, if some-what intangible, obligation of good faith subsequentlyto give consideration to the ratification, acceptance orapproval of the treaty. The precise extent of the sup-posed obligation is not clear. That there is no actualobligation to ratify under modern customary law iscertain, but it has been suggested36 that signature "im-plies an obligation to be fulfilled in good faith to submitthe instrument to the proper constitutional authoritiesfor examination with the view to ratification or rejec-tion". This formulation, logical and attractive though itmay be, appears to go beyond any obligation that isrecognized in State practice. For there are many ex-amples of treaties that have been signed and never sub-mitted afterwards to the constitutional organ of theState competent to authorize the ratification of treaties,without any suggestion being made that it involved a

36 See first report of Sir Hersch Lauterpacht, Yearbook ofthe International Law Commission, 1953 (United Nations pub-lication, Sales No.: S9.V.4), vol. II, pp. 108-112. See also firstreport of Sir Gerald Fitzmaurice, Yearbook of the InternationalLaw Commission, 1956 (United Nations publication, Sales No.:56.V.3), vol. II, pp. 112-113 and 121-122.

breach of an international obligation. Governments, ifpolitical or economic difficulties present themselves, un-doubtedly hold themselves free to refrain from sub-mitting the treaty to parliament or to whatever otherbody is competent to authorize ratification. The Com-mission felt that the most that could be said on thepoint was that the Government of a signatory Statemight be under some kind of obligation to examine ingood faith whether it should become a party to thetreaty. The Commission hesitated to include such a rulein the draft articles. The position is, of course, differentif the treaty itself, or the rules in force in an inter-national organization, place signatory States under someform of obligation to submit the question of the ratifica-tion, acceptance or approval of the treaty to their respec-tive constitutional authorities. In those cases, there is anexpress obligation flowing from the particular treaty orthe particular rules of the organization in question (e.g.the International Labour Organisation).

(5) Paragraph 3 deals with cases where the treatyis not subject to ratification, acceptance or approval. Sig-nature then suffices by itself to establish the State'sconsent to be bound by the treaty and the rule is soformulated in sub-paragraph (a). If the treaty is alreadyin force (or is brought into force by the signature) itgoes without saying that the signatory State becomessubject to the provisions of the treaty. But even if theconditions for the entry into force of the treaty have notyet been fulfilled, the signatory State is subject a fortiorito an obligation of good faith to refrain from acts cal-culated to frustrate the objects of the treaty, and sub-paragraph (b) so provides.

Article 12

Ratification

1. Treaties in principle require ratification un-less they fall within one of the exceptions pro-vided for in paragraph 2 below.

2. A treaty shall be presumed not to be subjectto ratification by a signatory State where:

(a) The treaty itself provides that it shall comeinto force upon signature;

(b) The credentials, full powers or other instru-ment issued to the representative of the State inquestion authorize him by his signature alone toestablish the consent of the State to be bound bythe treaty, without ratification;

(c) The intention to dispense with ratificationclearly appears from statements made in the courseof the negotiations or from other circumstancesevidencing such an intention;

(d) The treaty is one in simplified form3. However, even in cases falling under para-

graphs 2 (a) and 2 (d) above, ratification is neces-sary where:

(a) The treaty itself expressly contemplatesthat it shall be subject to ratification by the signa-tory States;

(b) The intention that the treaty shall be sub-ject to ratification clearly appears from statementsmade in the course of the negotiations or fromother circumstances evidencing such an intenton;

(c) The representative of the State in questionhas expressly signed "subject to ratification" or hiscredentials, full powers or other instrument dulyexhibited by him to the representatives of theother negotiating States expressly limit the author-


ity conferred upon him to signing "subject to rati-fication".

Commentary

(1) This article sets out the rules determining thecases in which ratification is necessary in addition tosignature in order to establish the State's consent to bebound by the treaty. The word "ratification", as thedefinition in article 1 indicates, is used here and through-out these draft articles exclusively in the sense of rati-fication on the international plane. Parliamentary "rati-fication" or "approval" of a treaty under municipal lawis not, of course, unconnected with "ratification" on theinternational plane, since without it the necessary con-stitutional authority to perform the international act ofratification may be lacking. But it remains true that theinternational and constitutional ratifications of a treatyare entirely separate procedural acts carried out on twodifferent planes.

(2) The modern institution of ratification in inter-national law developed in the course of the nineteenthcentury. Earlier, ratification had been an essentiallyformal and limited act by which, after a treaty had beendrawn up, a sovereign confirmed, or finally verified, thefull powers previously issued to his representative tonegotiate the treaty. It was then not an approval of thetreaty itself but a confirmation that the representativehad been invested with authority to negotiate it and, thatbeing so, there was an obligation upon the sovereign toratify his representative's full powers, if these had beenin order. Ratification came, however, to be used in themajority of cases as the means of submitting the treaty-making power of the executive to parliamentary control,and ultimately the doctrine of ratification underwent afundamental change. It was established that the treatyitself was subject to subsequent ratification by the Statebefore it became binding. Furthermore, this develop-ment took place at a time when the great majority ofinternational agreements were formal treaties. Not un-naturally, therefore, it came to be the opinion that thegeneral rule is that ratification is necessary to render atreaty binding.37

(3) Meanwhile, however, the expansion of inter-course between States, especially in economic and tech-nical fields, led to an ever-increasing use of less formaltypes of international agreements, amongst which wereexchanges of notes, and these agreements are usuallyintended by the parties to become binding by signaturealone. On the other hand, an exchange of notes or otherinformal agreement, though employed for its ease andconvenience, has sometimes expressly been made subjectto ratification because of constitutional requirements inone or the other of the contracting States.

(4) The general result of these developments hasbeen to complicate the law concerning the conditionsunder which treaties need ratification in order to makethem binding. The controversy which surrounds thesubject is, however, largely theoretical, as previous rap-porteurs on the law of treaties have pointed out.38 The

3 7 See, for example, Crandall, Treaties, their Making and En-forcement, para. 3 ; Fauchille, Traite de droit international pub-lic, tome I, part I I I , p. 317; Oppenheim, International Law, vol.I, para. 512; Harvard Research Draft, A.J.I.L., vol. 29, SpecialSupplement, p. 756.

3 8 See reports of Sir Hersch Lauterpacht, Yearbook of theInternational Law Commission, 1953 (United Nations publica-tion, Sales No. : 59.V.4), vol. I I , p. 112; and Ibid., 1954 (SalesNo. 59.V.7), vol. II , p. 127; and first report of Sir Gerald Fitz-maurice, Yearbook of the International Law Commission, 1956(United Nations publication, Sales No . : 56.V.3), vol. II, p. 123.

more formal types of instrument include, almost with-out exception, express provisions on the subject of rati-fication, and occasionally this is so even in the case ofexchanges of notes or other instruments in simplifiedform. Moreover, whether they are of a formal or in-formal type, treaties normally either provide that theinstrument shall be ratified or, by laying down that itshall enter into force upon signature or upon a specifieddate or event, dispense with ratification. Total silence onthe subject is exceptional, and the number of cases thatremain to be covered by a general rule is very small.This does not necessarily mean that there is no need toformulate a rule for the small residuum of cases inwhich the parties have left the question open. For it isone of the purposes of codification to provide for suchcases where the question is not regulated by the parties,and only if a clear presumptive rule is laid down willthe parties themselves know in future whether or notan express provision is necessary to give effect to theirintentions. But, if the general rule is taken to be thatratification is necessary unless it is expressly or im-pliedly excluded, large exceptions qualifying the rulehave to be inserted in order to bring it into accord withmodern practice, with the result that the number ofcases calling for the operation of the general rule issmall. Indeed, the practical effect of choosing that ver-sion of the general rule or the opposite rule that rati-fication is unnecessary unless expressly agreed upon bythe parties is not very substantial.

(5) The Commission considered whether it shouldrefrain from formulating any general rule and simplystate the law by reference to the intentions of the partiesor whether it should formulate a general rule to applyin cases where the treaty is silent upon the question ofratification. Some members were not in favour of stat-ing that a treaty is to be presumed to be subject to rati-fication unless the contrary is indicated. They thoughtthat in modern practice there is no specific rule concern-ing the need for ratification and that it is always a ques-tion of ascertaining what the parties intended. In favourof this view is the fact that in modern practice a greatmany treaties are concluded in simplified form and thata large percentage of the total number of treaties enterinto force without ratification. The view which prevailedin the Commission, however, was that the numericalstatistics may be a little misleading in that many treatiesin simplified form deal with comparatively unimportantmatters, and that weight should be given to the consti-tutional requirements for the exercise of the treaty-making power which exist in many States with respectto more important matters. The Commission felt that ageneral rule excluding the need for ratification unless acontrary intention was expressed would not be accept-able to these States, whereas the opposite rule wouldnot cause the same difficulty to States without such con-stitutional requirements. On the other hand, there wasgeneral agreement that there is no presumption infavour of ratification being necessary in the case oftreaties in simplified form.

(6) Taking account of the different considerations,the Commission decided that a general rule should bestated and that this should be a rule requiring ratifica-tion unless the case falls within one of a number ofrecognized exceptions; paragraph 1 of the article ac-cordingly so provides.

(7) Paragraph 2 sets out four cases in which thegeneral rule does not in principle apply. In the firstthree cases an intention to set aside the rule is to befound either in the treaty itself, the documents ex-


pressing the powers of the representatives or in thecircumstances of the negotiations. In the fourth case, itis to be implied from the choice by the parties of aninstrument in simplified form. This implication, as al-ready indicated, is justified by the fact that the greatmajority of these forms of treaty in fact enter intoforce today without ratification.

(8) On the other hand, the intention to set aside theneed for ratification which is found in paragraphs 2 (a)and 2 (d) is presumed from, in the one case, thefact that the treaty is expressed to come into force uponsignature and, in the other, the use of a simplified form.These presumptions, strong though they are, must giveway in face of a clear expression of contrary intention,and paragraph 3 accordingly makes provision for thecases where such a contrary intention appears. It maynot be very often that a treaty expressed to come intoforce upon signature is made subject to ratification; butthis does sometimes happen in practice when a treatywhich is subject to ratification is expressed to come intoforce provisionally upon signature.

Article 13A ccession

A State may become a party to a treaty by acces-sion in conformity with the provisions of articles8 and 9 when:

(a) It has not signed the treaty and either thetreaty specifies accession as the procedure to beused by such a State for becoming a party; or

(ft) The treaty has become open to accession bythe State in question under the provisions of arti-cle 9.

Commentary

(1) Accession is the traditional method by which aState, in certain circumstances, becomes a party to atreaty of which it is not a signatory. One type of acces-sion is that where the treaty expressly provides that cer-tain States or categories of States may accede to it.Another type is that where a State which was not en-titled to become a party to a treaty under its terms issubsequently invited to become a party under the con-ditions set out in article 9.

(2) Divergent opinions have been expressed in thepast as to whether it is legally possible to accede to atreaty which is not yet in force, and there is some sup-port for the view that it is not possible.39 However, anexamination of the most recent treaty practice showsthat in practically all modern treaties which containaccession clauses the right to accede is made independ-ent of the entry into force of the treaty, either ex-pressly by allowing accession to take place before thedate fixed for the entry into force of the treaty, orimpliedly by making the entry into force of the treatyconditional on the deposit, inter alia, of instruments ofaccession. The modern practice has gone so far in thisdirection that the Commission does not consider it ap-propriate to give any currency, even in the form of aresiduary rule, to the doctrine that treaties are not opento accession until they are in force. In this connexion itrecalls the following observation of a previous specialrapporteur.

39 See Harvard Research Draft, p. 822; Sir Gerald Fitz-maurice's first report on the law of treaties, Yearbook of theInternational Law Commission, 1956, vol. II, p. 125-26, andProfessor Brierly's second report, Yearbook of the InternationalLaw Commission, 1951, vol. II, p. 73.

"Important considerations connected with the effec-tiveness of the procedure of conclusion of treatiesseem to call for a contrary rule. Many treaties mightnever enter into force but for accession. Where theentire tendency in the field of conclusion of treaties isin the direction of elasticity and elimination of restric-tive rules it seems undesirable to burden the subjectof accession with a presumption which practice hasshown to be in the nature of an exception ra.ther thanthe rule."40

Accordingly, in the present article accession is not madedependent upon the treaty's having entered into force.

(3) Occasionally, a purported instrument of acces-sion is expressed to be "subject to ratification" and theCommission considered whether anything should be saidon the point either in the present article or in article 15dealing with instruments of accession. The questionarises whether it should be indicated in the presentarticle that the deposit of an instrument of accession inthis form is ineffective as an accession. The question wasconsidered by the Assembly of the League of Nationsin 1927 which, however, contented itself with emphasiz-ing that an instrument of accession would be taken tobe final, unless the contrary were expressly stated. Atthe same time it said that the procedure was one which"the League should neither discourage nor encourage".41

As to the actual practice today, the Secretary-Generalhas stated that he takes a position similar to that takenby the Secretariat of the League of Nations. He con-siders the instrument "simply as a notification of theGovernment's intention to become a party", and he doesnot notify the other States of its receipt. Furthermore,he draws the attention of the Government to the factthat the instrument does not entitle it to become a partyand underlines that "it is only when an instrument con-taining no reference to subsequent ratification is de-posited that the State will be included among the partiesto the agreement and the other Governments concernednotified to that effect".42 The attitude adopted by theSecretary-General towards an instrument of accessionexpressed to be "subject to ratification" is consideredby the Commission to be entirely correct. The procedureof accession subject to ratification is somewhat anoma-lous, but it is infrequent and does not appear to causedifficulty in practice. The Commission has not. there-fore, thought it necessary ,to deal with it specifically inthose articles.

Article 14

Acceptance or approvalA State may become a party to a treaty by ac-

ceptance or by approval in conformity with theprovisions of articles 8 and 9 when:

(a) The treaty provides that it shall be open tosignature subject to acceptance or approval andthe State in question has so signed the treaty; or

(b) The treaty provides that it shall be open toparticipation by simple acceptance or approvalwithout prior signature.

Commentary

(1) Acceptance has become established in treatypractice during the past twenty years as a new proce-

4 0 See Sir H. Lauterpacht, Yearbook of the International LawCommission, 1953, vol. II , p. 120.

4 1 Official Journal of the League of Nations, Eighth OrdinarySession, Plenary Meetings, p. 141.

4 2 Summary of the practice of the Secretary-General as de-positary of multilateral agreements ( S T / L E G / 7 ) , para. 48.


dure for becoming a party to treaties. But it wouldprobably be more correct to say that "acceptance" hasbecome established as a name given to two new proce-dures, one analogous to ratification and the other toaccession. For, on the international plane "acceptance"is an innovation which is more one of terminology thanof method. If a treaty provides that it shall be open tosignature "subject to acceptance", the process on theinternational plane is very like "signature subject toratification". Similarly, if a treaty is made open to "ac-ceptance" without prior signature, the process is verylike accession. In either case the question whether theinstrument is framed in the terms of "acceptance", onthe one hand, or of ratification or acceptance, on theother, simply depends on the phraseology used in thetreaty.43 Accordingly, the same name is found in con-nection with two different procedures; but there can beno doubt that today "acceptance" takes two forms, theone an act establishing the State's consent to be boundafter a prior signature and the other without any priorsignature. The first of these forms is covered in sub-para-graph (a) of article 14 and the second in sub-paragraph

(2) To say that on the international plane the pro-cedure of "acceptance", on the one hand, and the pro-cedures of ratification and accession, on the other, differprimarily in the terminology used in the treaty is not todeny the existence of any differences in the use of "ac-ceptance" and the other two procedures. "Signaturesubject to acceptance" was introduced into treaty-prac-tice principally in order to provide a simplified form of"ratification" or "accession" which would allow theGovernment a further opportunity to examine the treatywithout necessarily involving it in a submission of thetreaty to the State's constitutional procedure for obtain-ing parliamentary sanction for concluding the treaty.Accordingly, the procedure of "signature subject toacceptance" is employed more particularly in the caseof treaties whose form or subject matter is not such aswould normally bring them under the constitutional re-quirements of parliamentary "ratification" in force inmany States. In some cases, in order to make it as easyas possible for States with their varying constitutionalrequirements to enter into the treaty, its terms providefor either ratification or acceptance. Nevertheless, itremains broadly true that "acceptance" is generallyused as a simplified procedure of "ratification" or "ac-cession."

(3) The observations in the preceding paragraphapply mutatis mutandis to "approval", whose introduc-tion into the terminology of treaty-making is even morerecent than that of "acceptance". "Approval", perhaps,appears more often in the form of "signature subjectto approval" than in the form of a treaty which is simplymade open to "approval" without signature.44 But itappears in both forms. Its introduction into treaty-mak-ing practice seems, in fact, to have been inspired by theconstitutional procedures or practices of approvingtreaties which exist in some countries.

Article 15

The procedure of ratification, accession, acceptanceand approval

1. (a) Ratification, accession, acceptance or ap-4 3 For examples, see Handbook of Final Clauses (ST/LEG/6,

pp. 6-17).« The Handbook of Final Clauses (ST/LEG/6, p. 18) even

gives an example of the formula "signature subject to approvalfollowed by acceptance".

proval shall be carried out by means of a writteninstrument.

(b) Unless the treaty itself expressly contem-plates that the participating States may elect tobecome bound by a part or parts only of the treaty,the instrument must apply to the treaty as a whole.

(c) If a treaty offers to the participating Statesa choice between two differing texts, the instrumentof ratification must indicate to which text it refers.

2. If the treaty itself lays down the procedureby which an instrument of ratification, accession,acceptance or approval is to be communicated, theinstrument becomes operative on compliance withthat procedure. If no procedure has been specifiedin the treaty or otherwise agreed by the signatoryStates, the instrument shall become operative:

(a) In the case of a treaty for which there is nodepositary, upon the formal communication of theinstrument to the other party or parties, and inthe case of a bilateral treaty normally by means ofan exchange of the instrument in question, dulycertified by the representatives of the States carry-ing out the exchange;

(b) In other cases, upon deposit of the instru-ment with the depositary of the treaty.

3. When an instrument of ratification, accession,acceptance or approval is deposited with a deposi-tary in accordance with paragraph 2 (fc) above, theState in question shall be given an acknowledge-ment of the deposit of its instrument, and the othersignatory States shall be notified promptly bothof the fact of such deposit and the terms of theinstrument.

Commentary(1) Ratification, accession, acceptance and approval,

being acts which commit the State to become a partyto the treaty, must be carried out by a formal instru-ment. The actual form of the instrument is, however, amatter which is governed by the internal law and prac-tice of each State and paragraph 1 (a) merely providesthat it must be in writing.

(2) Occasionally, treaties are found which expresslyauthorize States to consent to a part or parts only ofthe treaty or to exclude certain parts, and then, ofcourse, partial ratification, accession, acceptance or ap-proval is admissible. But in the absence of such a provi-sion, the established rule is that laid down in paragraph1 (b) ; the ratification, accession etc. must relate to thetreaty as a whole. Although it may be admissible toformulate reservations to selected provisions of thetreaty under the rules stated in article 18, it is inadmis-sible to subscribe only to selected parts of the treaty.

(3) Paragraph 1 (c) takes account of a practicewhich is not very common but which is sometimes foundin treaties concluded under the auspices of certain inter-national organizations, e.g. the International LabourOrganisation. The treaty offers to each State a choicebetween two different texts of the treaty.

(4) Paragraph 2 concerns the act by which an instru-ment of ratification, accession etc. is rendered legally ef-fective on the international plane; namely, by its deliv-ery—its communication—to the other States concerned.Normally, the procedure for accomplishing this is laiddown in the treaty itself and paragraph 2 recognizesthat fact. It goes on, however, to make provision forcases where the treaty is silent as to the procedure and


specifies for such cases the procedures most commonlyfound in modern practice. A query might be raisedwhether in cases where there is a depositary the dateupon which the instrument becomes effective is the date ofdeposit or the date when notice of the instrument actual-ly reaches the other States concerned. The Commis-sion considered that, by using a depositary as theiragent for accepting the deposit of instruments relatingto the treaty, the States which drew up the treaty givetheir consent to the act of deposit being regarded asthe act which renders the instrument effective. Accord-ingly, the date of deposit has to be regarded as theeffective date, even if this means that in some casesthere may be a small time-lag before the other Statesbecome aware that the treaty is in force between themand the State depositing the instrument. In this con-nexion reference may be made to the decision of theInternational Court of Justice, in the Rioht of PassageCase*5 concerning the moment at which declarationsunder the optional clause take effect.

(5) Paragraph 3 does not call for any comment.

Article 16

Legal effects of ratification, accession, acceptanceand approval

The communication of an instrument of ratifica-tion, accession, acceptance or approval in conform-ity with the provisions of article 15:

(a) Establishes the consent of the ratifying, ac-ceding, accepting or approving State to be boundby the treaty; and

(b) If the treaty is not yet in force, brings intooperation the applicable provisions of article 17,paragraph 2.

Commentary(1) The essential legal effect of the exchange or

deposit of instruments of ratification, accession, ac-ceptance or approval is to establish the consent of theState concerned to be bound by the treaty. It commitsthe State to becoming a party to the treaty. Whether italso has the effect of bringing the treaty into force forthe State exchanging or depositing the instrument de-pends upon the conditions under which the treaty isto enter into force, a matter which is dealt with in arti-cles 23 and 24.

(2) A further effect, if the exchange or deposit of theinstrument does not bring the treaty into force at once,is to place the State concerned under the obligation ofgood faith set out in article 17. This, in general terms,is an obligation, pending the entry into force of thetreaty, to refrain from acts calculated to frustrate itsobjects.

(3) The Commission considered whether it shouldinclude in this article a provision expressly declaringthat, unless the treaty otherwise states, ratification hasno retroactive effects. Formerly, when ratification wasregarded as a confirmation of the authority to sign, itwas generally said to operate retrospectively and tomake the treaty effective as from signature. This viewcontinued to be echoed by writers and by some municipalcourts, even after the institution of ratification had un-dergone the fundamental change which has alreadybeen described in the commentary to article 12 above.But the theory of the retroactive operation of ratifica-tion is now universally rejected and the Commission

*aI.CJ. Reports 1956, p. 170.

decided that it would be sufficient to mention the pointin this commentary and to draw attention to article 23,paragraph 4. This paragraph, by providing that therights and obligations of a treaty "become effective foreach party from the date when the treaty comes intoforce with respect to that party", excludes the doctrineof the retroactive operation of ratification.

Article 17

The rights and obligations of States prior tothe entry into force of the treaty

1. A State which takes part in the negotiation,drawing up or adoption of a treaty, or which hassigned a treaty subject to ratification, acceptanceor approval, is under an obligation of good faith,unless and until it shall have signified that it doesnot intend to become a party to the treaty, to re-frain from acts calculated to frustrate the objectsof the treaty, if and when it should come into force.

2. Pending the entry into force of a treaty andprovided that such entry into force is not undulydelayed, the same obligation shall apply to theState which, by signature, ratification, accession,acceptance or approval, has established its consentto be bound by the treaty.

Commentary

(1) Reference has already been made to the provi-sions of this article in the commentaries to articles 11and 16. That an obligation of good faith to refrain fromacts calculated to frustrate objects of the treaty attachesto a State which has signed a treaty subject to ratifica-tion appears to be generally accepted. Certainly, in thePolish Upper Si/esia Case,46 the Permanent Court ofInternational Justice appears to have recognized that,if ratification takes place, a signatory State's misuseof its rights in the interval preceding ratification mayamount to a violation of its obligations in respect of thetreaty.47 The Commission considers that this obligationbegins when a State takes part in the negotiation ofa treaty or in the drawing up or adoption of its text.A. fortiori, it attaches to a State which actually ratines,accedes to, accepts or approves a treaty if there is an in-terval before the treaty actually comes into force.

(2) Paragraph 1 of the article covers the cases wherethe State has not yet established its consent to be boundby the treaty. In those cases the obligation of good faithcontinues until either the State signifies that it does notintend to become a party or it establishes its consent tobe bound by the treaty, when it falls under paragraph 2of the article.

(3) Paragraph 2 deals with the cases where the Statehas committed itself to be bound by the treaty and thenthe obligation continues until either the treaty comes intoforce or its entry into force has been unduly delayed.

SECTION III. RESERVATIONS

Article 18Formulation of reservations

1. A State may, when signing, ratifying, acced-WP.C.I.J.. Scries A, No. 7, p. 30.47 See also McNair, Laxv of Treaties (1961), pp. 199-205;

Fauchille, Traite dc droit international public (1926), tome I,partie III, p. 320; Bin Cheng, General Principles of Law,pp. 109-111; MegaHdis v. Turkey, Annual Digest of Inter-national Law Cases (1927-1928), Case No. 272. '


ing to, accepting or approving a treaty, formulatea reservation unless:

(a) The making of reservations is prohibited bythe terms of the treaty or by the established rulesof an international organization; or

(b) The treaty expressly prohibits the makingof reservations to specified provisions of the treatyand the reservation in question relates to one ofthe said provisions; or

(c) The treaty expressly authorizes the makingof a specified category of reservations, in whichcase the formulation of reservations falling out-side the authorized category is by implication ex-cluded; or

(d) In the case where the treaty is silent con-cerning the making of reservations, the reservationis incompatible with the object and purpose of thetreaty.

2. (a) Reservations, which must be in writing,may be formulated :

(i) Upon the occasion of the adoption of thetext of the treaty, either on the face of the treatyitself or in the final act of the conference at whichthe treaty was adopted, or in some other instru-ment drawn up in connexion with the adoption ofthe treaty;

(ii) Upon signing the treaty at a subsequentdate; or

(iii) Upon the occasion of the exchange or de-posit of instruments of ratification, accession, ac-ceptance or approval, either in the instrument it-self or in a proces-verbal or other instrument ac-companying it.

(6) A reservation formulated upon the occasionof the adoption of the text of a treaty or uponsigning a treaty subject to ratification, acceptanceor approval shall only be effective if the reservingState, when carrying out the act establishing itsown consent to be bound by the treaty, confirmsformally its intention to maintain its reservation.

3. A reservation formulated subsequently to theadoption of the text of the treaty must be com-municated :

(a) In the case of a treaty for which there is nodepositary, to every other State party to the treatyor to which it is open to become a party to thetreaty; and

(6) In other cases, to the depositary which shalltransmit the text of the reservation to every suchState.

Article 19Acceptance of and objection to reservations

1. Acceptance of a reservation not provided forby the treaty itself may be expressed or implied.

2. A reservation may be accepted expressly:(a) In any appropriate formal manner on the

occasion of the adoption or signature of a treaty,or of the exchange or deposit of instruments ofratification, accession, acceptance or approval; or

(b) By a formal notification of the acceptance ofthe reservation addressed to the depositary of thetreaty or, if there is no depositary, to the reservingState and every other State entitled to become aparty to the treaty.

3. A reservation shall be regarded as having been

accepted by a State if it shall have raised no ob-jection to the reservation during a period of twelvemonths after it received formal notice of the re-servation.

4. An objection by a State which has not yetestablished its own consent to be bound by thetreaty shall have no effect if after the expiry oftwo years from the date when it gave formal no-tice of its objection it has still not established itsconsent to be bound by the treaty.

5. An objection to a reservation shall be formu-lated in writing and shall be notified:

(a) In the case of a treaty for which there is nodepositary, to the reserving State and to everyother State party to the treaty or to which it isopen to become a party; and

(b) In other cases, to the depositary.

Article 20The effect of reservations

(a) A reservation expressly or impliedly per-mitted by the terms of the treaty does not requireany further acceptance.

(b) Where the treaty is silent in regard to themaking of reservations, the provisions of para-graphs 2 to 4 below shall apply.

2. Except in cases falling under paragraphs 3and 4 below and unless the treaty otherwise pro-vides:

(a) Acceptance of a reservation by any State towhich it is open to become a party to the treatyconstitutes the reserving State a party to the treatyin relation to such State, as soon as the treaty is inforce;

(b) An objection to a reservation by a Statewhich considers it to be incompatible with the ob-ject and purpose of the treaty precludes the entryinto force of the treaty as between the objectingand the reserving State, unless a contrary inten-tion shall have been expressed by the objectingState.

3. Except in a case falling under paragraph 4below, the effect of a reservation to a treaty whichhas been concluded between a small group ofStates shall be conditional upon its acceptance byall the States concerned unless:

(a) The treaty otherwise provides; or(b) The States are members of an international

organization which applies a different rule totreaties concluded under its auspices.

4. Where the treaty is the constituent instru-ment of an international organization and objec-tion has been taken to a reservation, the effect ofthe reservation shall be determined by decision ofthe competent organ of the organization in ques-tion, unless the treaty otherwise provides.

Commentary

Introduction(1) Articles 18, 19 and 2048 have to be read together

because the legal effect of a reservation, when formu-lated, is dependent on its acceptance or rejection by theother States concerned. A reservation to a bilateral treaty

48 For the reasons given by him in the summary records ofthe 637th, 651st, 652nd, 656th and 667th meetings, Mr. Briggsdoes not accept the provisions of article 20.


presents no problem, because it amounts to a new pro-posal reopening the negotiations between the two Statesconcerning the terms of the treaty. If they arrive at anagreement—either adopting or rejecting the reservation—the treaty will be concluded; if not, it will fall to theground. But as soon as more than two States are in-volved problems arise, since one State may be disposedto accept the reservation while another objects to it; and,when large multilateral treaties are in question, theseproblems become decidedly complex.

(2) The subject of reservations to multilateral trea-ties has been much discussed during the past twelve yearsand has been considered by the General Assembly itselfon more than one occasion,49 as well as by the Inter-national Court of Justice in its opinion concerning theGenocide Convention.30 Divergent views have been ex-pressed both in the Court and in the General Assemblyon the fundamental question of the extent to which theconsent of other interested States is necessary to theeffectiveness of a reservation to this type of treaty.

(3) In 1951, the doctrine under which a reservation,in order to be valid, must have the assent of all the otherinterested States was not accepted by the majority of theCourt as applicable in the particular circumstances of theGenocide Convention; moreover, while they consideredthe "traditional" doctrine to be of "undisputed value",they did not consider it to have been "transformed intoa rule of law".51 Four judges, on the other hand, dis-sented from this view and set out their reasons for hold-ing that the traditional doctrine must be regarded as agenerally accepted rule of customary law. The Court'sreply to the questions put to it by the General Assemblywas as follows:

"On Question I :"that a State which has made and maintained a reser-vation which has been objected to by one or more ofthe parties to the Convention but not by others, canbe regarded as being a party to the Convention if thereservation is compatible with the object and purposeof the Convention; otherwise, that State cannot be re-garded as being a party to the Convention.

"On Question I I :" (a) That if a party to the Convention objects to a

reservation which it considers to be incompatible withthe object and purpose of the Convention, it can infact consider that the reserving State is not a party tothe Convention;

"(&) That if, on the other hand, a party acceptsthe reservation as being compatible with the object andpurpose of the Convention, it can in fact consider thatthe reserving State is a party to the Convention.

"On Question III:"(a) That an objection to a reservation made by a

signatory State which has not yet ratified the Conven-tion can have the legal effect indicated in the reply toQuestion I only upon ratification. Until that momentit merely serves as a notice to the other State of theeventual attitude of the signatory State;

"(&) That an objection to a reservation made by aState which is entitled to sign or accede but which hasnot yet done so, is without legal effect."52

4 9 Notably in 1951 in connexion with reservations to theGenocide Convention and in 1959 concerning the Indian "reser-vation" to the Convention of the Inter-Governmental MaritimeConsultative Organization.

5 0 Reservations to the Convention on the Prevention and Pun-ishment of the Crime of Genocide, I.C.J. Reports 1951, p. 15.

51 Ibid., p. 24.52 Ibid., pp. 29 and 30.

In giving these replies to the General Assembly'squestions the Court emphasized that they were strictlylimited to the Genocide Convention; and said that, indetermining what kind of reservations might be madeto the Genocide Convention and what kind of objectionsmight be taken to such reservations, the solution mustbe found in the special characteristics of that Conven-tion. Amongst these special characteristics it mentioned:(a) the fact that the principles underlying the Conven-tion—the condemnation and punishment of genocide—•are principles recognized by civilized nations as bind-ing upon Governments even without a convention;(b) the consequently universal character of the Con-vention; and (c) its purely humanitarian and civilizingpurpose without individual advantages or disadvantagesfor the contracting States.

(4) Although limiting its replies to the case of theGenocide Convention itself, the Court expressed itselfmore generally on certain points amongst which may bementioned:

(a) In its treaty relations a State cannot be boundwithout its consent and, consequently, no reservationcan be effective against any State without its agreementthereto.

(b) The traditional concept, that no reservation isvalid unless it has been accepted by all the contractingparties without exception, as would have been requiredif it had been stated during the negotiations, is of un-disputed value.

(c) Nevertheless, extensive participation in Conven-tions of the type of the Genocide Convention has alreadygiven rise to greater flexibility in the international prac-tice concerning multilateral conventions, as manifestedby the more general resort to reservations, the very greatallowance made for tacit assent to reservations; and theexistence of practices which, despite the fact that a reser-vation has been rejected by certain States, go so far asto admit the reserving State as a party to the Conventionvis-a-vis those States which have accepted it.

(d) In the present state of international practice itcannot be inferred from the mere absence of any articleproviding for reservations in a multilateral conventionthat the contracting States are prohibited from makingcertain reservations. The character of a multilateral con-vention, its purpose, provisions, mode of preparation andadoption, are factors which must be considered in deter-mining, in the absence of any express provision on thesubject, the possibility of making reservations, as well astheir validity and effect.

(e) The principle of the integrity of the convention,which subjects the admissibility of a reservation to theexpress or tacit assent of all the contracting parties, doesnot appear to have been transformed into a rule of law.

(5) Later in 1951, as had been requested by theGeneral Assembly, the Commission presented a generalreport on reservations to multilateral conventions.63 It ex-pressed the view that the Court's criterion—"compatibilitywith the object and purpose of the convention"—wasopen to objection as a criterion of general application,because it considered the question of "compatibility withthe object and purpose of the convention" to be too sub-jective for application to multilateral conventions gen-erally. Noting that the Court's opinion was specificallyconfined to the Genocide Convention and recognizingthat no single rule uniformly applied could be wholly

53 Official Records of the General Assembly, Sixth Session,Supplement No. 9 (A/1858), paras. 12-34.


satisfactory to cover all cases, the Commission recom-mended the adoption of the doctrine requiring unani-mous consent for the admission of a State as a party to atreaty subject to a reservation. At the same time, it pro-posed certain minor modification in the application ofthe rule.

(6) The Court's opinion and the Commission's reportwere considered together at the sixth session of the Gen-eral Assembly, which adopted resolution 598 (VI) deal-ing with the particular question of reservations to theGenocide Convention separately from that of reserva-tions to other multilateral conventions. With regard tothe Genocide Convention it requested the Secretary-General to conform his practice to the Court's AdvisoryOpinion and recommended to States that they should beguided by it. With regard to all other future multilateralconventions concluded under the auspices of the UnitedNations of which he is the depositary, it requested theSecretary-General:

" (i) To continue to act as depositary in connexionwith the deposit of documents containing reservationsor objections, without passing upon the legal effect ofsuch documents; and

"(ii) To communicate the text of such documentsrelating to reservations or objections to all States con-cerned, leaving it to each State to draw legal conse-quences from such communications."

The resolution, being confined to future conventions, waslimited to conventions concluded after 12 January 1952,the date of the adoption of the resolution, so that theformer practice still applied to conventions concludedbefore that date. As to future conventions, the GeneralAssembly did not endorse the Commission's proposal toretain the former practice subject to minor modifications.Instead, it directed the Secretary-General, in effect, toact simply as an agent for receiving and circulating in-struments containing reservations or objections to reser-vations, without drawing any legal consequences fromthem.

(7) In the General Assembly, as already mentioned,opinion was divided in the debates on this question in1951. One group of States favoured the unanimity doc-trine, though there was some support in this group forreplacing the need for unanimous consent by one ofacceptance by a two-thirds majority of the States con-cerned. Another group of States, however, was definitelyopposed to the unanimity doctrine and favoured a flexiblesystem making the acceptance and rejection of reserva-tions a matter for each State individually. They arguedthat such a system would safeguard the position of out-voted minorities and make possible a wider acceptanceof conventions. The opposing group maintained, on theother hand, that a flexible system of this kind, althoughit might be suitable for a homogeneous community likethe Pan-American Union, was not suitable for universalapplication. Opinion being divided in the United Nations,the only concrete result was the directives given to theSecretary-General for the performance of his deposi-tary functions with respect to reservations.

(8) The situation with regard to this whole questionhas changed in certain respects since 1951. First, theinternational community has undergone rapid expansionsince 1951, so that the very number of potential par-ticipants in multilateral treaties now seems to make theunanimity principle less appropriate and less practicable.Secondly, since 12 January 1952, i.e. during the past tenyears, the system which has been in operation de factofor all new multilateral treaties of which the Secretary-

General is the depositary has approximated to the "flex-ible" system. For the Secretariat's practice with regardto all treaties concluded after the General Assembly'sresolution of 12 January 1952 has been officially statedto be as follows :

"In the absence of any clause on reservations inagreements concluded after the General Assembly res-olution on reservations to multilateral conventions, theSecretary-General adheres to the provisions of thatresolution and communicates to the States concernedthe text of the reservation accompanying an instru-ment of ratification or accession without passing onthe legal effect of such documents, and 'leaving it toeach State to draw legal consequences from such com-munications'. He transmits the observations receivedon reservations to the States concerned, also withoutcomment. A general table is kept up to date for eachconvention, showing the reservations made and the ob-servations transmitted thereon by the States concerned.A State which has deposited an instrument accompa-nied by reservations is counted among the parties re-quired for the entry into force of the agreement."54

It is true that the Secretary-General, in compliance withthe General Assembly's resolution, does not "pass upon"the legal effect either of reservations or of objections toreservations, and each State is free to draw its own con-clusions regarding their legal effects. But, having regardto the opposition of many States to the unanimity prin-ciple and to the Court's refusal to consider that principleas having been "transformed into a rule of law", a Statemaking a reservation is now in practice considered apartyto the convention by the majority of those States whichdo not give notice of their objection to the reservation.

(9) A further point is that in 1959 the question ofreservations to multilateral conventions again came be-fore the General Assembly in the particular context of aconvention which was the constituent instrument of aninternational organization—namely, the Inter-Govern-mental Maritime Consultative Organization. The actualissue raised by India's declaration in accepting thatConvention was remitted to I.M.C.O. and settled with-out the legal questions having been resolved. But theGeneral Assembly reaffirmed its previous directive to theSecretary-General concerning his depositary functionsand extended it to cover all conventions concluded underthe auspices of the United Nations (unless they containcontrary provisions), not merely those concluded after12 January 1952.

(10) At the present session, the Commission wasagreed that, where the treaty itself deals with the ques-tion of reservations, the matter is concluded by the termsof the treaty. Reservations expressly or impliedly pro-hibited by the terms of the treaty are excluded, whilethose expressly or impliedly authorized are ipso factoeffective. The problem concerns only the cases where thetreaty is silent in regard to reservations, and here theCommission was agreed 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 thelegitimacy of reservations to multilateral treaties and ofobjections to them. The difficulty lies in the process bywhich that principle is to be applied, and especially wherethere is no tribunal or other organ invested with stand-ing competence to interpret the treaty. Where the treatyis a constituent instrument of an international organi-zation, the Commission was agreed that the question isone for determination by its competent organ. It was

r>4 Summary of the Practice of the Secretary-General as De-positary of Multilateral Agreements (ST/LEG/7, para. 80).


also agreed that where the treaty is one concluded be-tween a small group of States, unanimous agreement tothe acceptance of a reservation must be presumed to benecessary in the absence of any contrary indication.Accordingly the problem essentially concerns multilateraltreaties which are not constituent instruments of inter-national organizations and which contain no provisionsin regard to reservations. On this problem, opinion in theCommission, as in the Court and the General Assembly,was divided.

(11) Some members of the Commission considered itessential that the effectiveness of a reservation to a multi-lateral treaty should be dependent on at least some meas-ure of common acceptance of it by the other States con-cerned. They thought it inadmissible that a State, havingformulated a reservation incompatible with the objectsof a multilateral treaty, should be entitled to regard it-self as a party to the treaty, on the basis of the accept-ance of the reservation by a single State or by very fewStates. The reservation might be one which other Statesconsidered to undermine the basis of the treaty or aclause embodying a compromise which the States con-cerned had all sacrificed part of their interests to obtain.As tacit consent, derived from a failure to object to areservation, plays a large role in the practice concerningmultilateral treaties and is provided for in the draft ar-ticles, such a rule would mean in practice that a reservingState, however objectionable its reservation, could al-ways be sure of being able to consider itself a party tothe treaty vis-a-vis a certain number of States. Accord-ingly, these members advocated a rule under which, ifmore than a certain proportion of the interested States(for example, one-third) objected to a reservation, thereserving State would be barred altogether from con-sidering itself a party to the treaty unless it withdrewthe reservation.

(12) The other members of the Commission, how-ever, did not share this view, especially with respect togeneral multilateral treaties. These members, while givingfull weight to the arguments in favour of maintainingthe integrity of the convention as adopted to the greatestextent possible, felt that the detrimental effect of reser-vations upon the integrity of the treaty could easily beexaggerated. The treaty itself remains the sole authenticstatement of the common agreement between the partici-pating States. The majority of reservations relate to aparticular point which a particular State for one reasonor another finds difficult to accept, and the effect of thereservation on the general integrity of the treaty is mini-mal ; the same is true even if the reservation in questionrelates to a comparatively important provision of thetreaty, so long as the reservation is not made by morethan a few States. In short, the integrity of the treatywould only be materially affected if a reservation of asomewhat substantial kind were to be formulated by anumber of States. This might, no doubt,happen; but eventhen the treaty itself would remain the master agreementbetween the other participating States. What is essentialto ensure both the effectiveness and the integrity of thetreaty is that a sufficient number of States should becomeparties to it, accepting the great bulk of its provisions.The Commission in 1951 said that the history of the con-ventions adopted by the Conference of American Stateshad failed to convince it "that an approach to universal-ity is necessarily assured or promoted by permitting aState which offers a reservation to which objection istaken to become a party vis-a-vis non-objecting States".55

55 Official Records of the General Assembly, Sixth Session,Supplement No. 9 (A/1858), para. 22.

Nevertheless, a power to formulate reservations must inthe nature of things tend to make it easier for some Statesto execute the act necessary to bind themselves finally toparticipating in the treaty and therefore tend to promotea greater measure of universality in the application ofthe treaty. Moreover, in the case of general multilateraltreaties, it appears that not infrequently a number ofStates have, to all appearances, only found it possible toparticipate in the treaty subject to one or more reserva-tions. Whether these States, if objection had been takento their reservations, would have preferred to remainoutside the treaty rather than to withdraw their reserva-tion is a matter which is not known. But when today thenumber of the negotiating States may not be far shortof one hundred States with very diverse cultural, eco-nomic and political conditions, it seems legitimate to as-sume that the power to make reservations without therisk of being totally excluded by the objection of one oreven of a few States may be a factor in promoting amore general acceptance of multilateral treaties. It maynot unreasonably be thought that the failure of negoti-ating States to take the necessary steps to become partiesto multilateral treaties at all is a greater obstacle to thedevelopment of international law through the mediumof treaties than the possibility that the integrity of suchtreaties may be unduly weakened by the free admissionof reserving States as parties to them. There may alsoperhaps be some justification for the view that, in thepresent era of change and of challenge to traditional con-cepts, the rule calculated to promote the widest possibleacceptance of whatever measure of common agreementcan be achieved and expressed in a multilateral treatymay be the one most suited to the immediate needs ofthe international community.

(13) Another consideration which influenced thesemembers of the Commission is that, in any event, theessential interests of individual States are in large meas-use safeguard by the two well-established rules:

(a) That a State which within a reasonable time sig-nifies its objection to a reservation is entitled to regardthe treaty as not in force between itself and the reservingState;

(b) That a State which assents to another State'sreservation is nevertheless entitled to object to any at-tempt by the reserving State to invoke against it the obli-gations of the treaty from which the reserving State hasexempted itself by its reservation.It has, it is true, been suggested that the equality betweena reserving and non-reserving State, which is the aim ofthe above-mentioned rules, may in practice be less thancomplete. For a non-reserving State, by reason of its ob-ligations towards other non-reserving States, may feelbound to comply with the whole of the treaty, includingthe provisions from which the reserving State has ex-empted itself by its reservation. Accordingly, the reserv-ing State may be in the position of being exempt itselffrom certain of the provisions of the treaty, while havingthe assurance that the non-reserving States will observethose provisions. Normally, however, a State wishing tomake a reservation would equally have the assurance thatthe non-reserving State would be obliged to comply withthe provisions of the treaty by reason of its obligationsto other States, even if the reserving State remainedcompletely outside the treaty. By entering into the treatysubject to its reservation, the reserving State at leastsubmits itself in some measure to the regime of the treaty.The position of the non-reserving State is not thereforemade more onerous if the reserving State becomes a partyto the treaty on a limited basis by reason of its reserva-


tion. Even in those cases where there is such a close con-nexion between the provisions to which the reservationrelates and other parts of the treaty that the non-reserv-ing State is not prepared to become a party to the treatyat all zns-a-vis the reserving State on the limited basiswhich the latter proposes, the non-reserving State canprevent the treaty from coming into force between itselfand the reserving State by objecting to the reservation.Thus, the point only appears to have significance in caseswhere the non-reserving State would never itself haveconsented to become a party to the treaty, if it hadknown that the other State would do so subject to thereservation in question. And it may not be unreasonableto suggest that, if a State attaches so much importanceto maintaining the absolute integrity of particular pro-visions, its appropriate course is to protect itself duringthe drafting of the treaty by obtaining the insertion ofan express clause prohibiting the making of the reserva-tions which it considers to be so objectionable.

(14) The Commission concluded that, in the case ofgeneral multilateral treaties, the considerations in favourof a flexible system, under which it is for each State in-dividually to decide whether to accept a reservation andto regard the reserving State as a party to the treaty forthe purpose of the relations between the two States, out-weigh the arguments advanced in favour of retaining a"collegiate" system under which the reserving State wouldonly become a party if the reservation were accepted bya given proportion of the other States concerned. Havingarrived at this decision, the Commission also decided thatthere were insufficient reasons for making a distinctionbetween multilateral treaties not of a general charac-ter between a considerable number of States and generalmultilateral treaties. The rules proposed by the Commis-sion therefore cover all multilateral treaties, except thoseconcluded between a small number of States, for whichthe unanimity rule is retained.Commentary to article 18

(15) This article deals with the conditions underwhich a State may formulate a reservation. Paragraph 1sets out the general principle that the formulation ofreservations is permitted except in four cases. The firstthree are cases in which the reservation is expressly orimpliedly prohibited by the treaty itself. The fourth case,mentioned under (d), is that where the treaty is silent inregard to reservation but the particular reservation is in-compatible with the object and purpose of the treaty.Paragraph 1 (d), in short, adopts the Court's criterion asa general rule governing the formulation of reservationsnot provided for in the treaty. Paragraph 1 (d) has to beread in conjunction with article 20 which deals withthe effect of a reservation formulated in cases where thetreaty contains no provisions concerning reservations.

(16) Paragraph 2 deals with the modalities of formu-lating reservations and only requires two comments. Thefirst relates to paragraph 2 (a) (i) which concerns reser-vations formulated at the time of the adoption of thetext of the treaty, that is, at the conclusion of the nego-tiations. A statement of reservation is sometimes madeduring the negotiation and duly recorded in the proces-verbanx. Such embryo reservations have sometimes beenrelied upon afterwards as amounting to formal reserva-tions. It seems essential, however, that the State con-cerned should formally reiterate the statement in somemanner in order that its intention actually to formulatea reservation should be clear. Accordingly, a statementduring the negotiations expressing a reservation has notbeen included in paragraph 2 as one of the methods offormulating a reservation. The second comment relates

to an analogous point in paragraph 2 (b), where it is ex-pressly provided that a reservation formulated upon theadoption of the text or upon a signature, subject to rati-fication, acceptance or approval must, if it is to be effec-tive, be formally maintained when the State establishesits consent to be bound.

(17) Paragraph 3 provides for the communication ofthe reservation to the other interested States.Commentary to article 19

(18) Paragraphs 1, 2 and 5 of this article do notappear to require comment.

(19) Paragraph 3 deals with implied consent to areservation. That the principle of implying consent toa reservation from absence of objection has been admit-ted into State practice cannot be doubted; for the Courtitself in the Reservations to the Genocide Conventioncase spoke of "very great allowance" being made ininternational practice for "tacit assent to reservations".Moreover, a rule specifically stating that consent will bepresumed after a period of three, or in some cases six,months is to be found in some modern conventions,58

while other conventions achieve the same result by limit-ing the right of objection to a period of three months.57

Again, in 1959, the Inter-American Council of Jurists58

recommended that, if no reply had been received from aState to which a reservation had been communicated, itshould be presumed after one year that the State con-cerned had no objection to the reservation.

(20) It has to be admitted that there may be a certaindegree of rigidity in a rule under which tacit consentwill be presumed after the lapse of a fixed period. Never-theless, it seems undesirable that a State, by refrainingfrom making any comment upon a reservation, shouldbe enabled more or less indefinitely to maintain anequivocal attitude as to the relations between itself andthe reserving State under a multilateral treaty. The riskwould be that a State which had kept silent in regard toanother State's reservation would only take a clear posi-tion in the matter after a dispute had arisen between itand the reserving State. Seeing that in a number oftreaties States had found it possible to accept periods asshort as three or six months, the question may be askedwhy it has been considered necessary to propose aperiod of twelve months in the present draft. But thereare, it is thought, good reasons for proposing the adop-tion of the longer period. First, it is one thing to agreeupon a short period for the purposes of a particulartreaty whose contents are known, another to agree uponit as a general rule applicable to every treaty which doesnot lay down a rule on the point.

(21) Paragraph 4 proposes, de lege ferenda, a ruleunder which an objection to a reservation will lapse if theobjecting State does not, within two years after lodgingits objection, establish its own consent to be bound. Theapplication of the rule would be of particular importancein connexion with treaties concluded between a smallgroup of States where the objection of one State sufficesto exclude a reserving State from becoming a party tothe treaty. But it is thought that, in general, an objec-tion should lapse if the objecting State does not itself

56 E.g., International Convention to Facilitate the Importationof Commercial Samples and Advertising Material, 1952 (90days) ; and International Convention for the Suppression ofCounterfeiting Currency, 1929 (6 months) .

57 E.g., Conventions on the Declaration of Death of MissingPersons, 1950, and on the Nationality of Married Women 1957(both 90 days) .

58 Final Act of the Fourth Meeting of the Inter-AmericanCouncil of Jurists, p. 29.


become bound within a reasonable period. The Commis-sion hesitated as to the length of the period and hasproposed two years, pending the comments by Govern-ments upon the point.

Commentary to article 20(22) Paragraph 1 requires no comment. Paragraph

2, in conjunction with article 18, paragraph 1 (d), con-tains the essence of the Commission's proposals con-cerning reservations to multilateral treaties which aresilent upon the question of reservations. Article 18,paragraph 1 (d), it may be recalled, permits the formu-lation of reservations in such cases provided that theyare not incompatible with the object and purpose of thetreaty. The criterion of "compatibility with the objectand purpose of the treaty", as pointed out in the intro-duction to these three articles, is to some extent a matterof subjective appreciation and yet, in the absence of atribunal or organ with standing competence, the onlymeans of applying it in most cases will be through theindividual State's acceptance or rejection of the reserva-tion. This necessarily means that there may be divergentinterpretations of the compatibility of a particular reser-vation with the object and purpose of a given treaty.But such a result seems to the Commission to be almostinevitable in the circumstances and the only question iswhat are to be the effects of the determinations made byindividual States.

(23) Paragraph 2 (a) provides that acceptance ofa reservation is conclusive as to the effectiveness of thereservation as between the accepting and the reservingState. Paragraph 2 (b) equally provides that an objec-tion operates only as between the objecting and the re-serving State and precludes the treaty from coming intoforce between them, unless the objecting State shouldexpress a contrary intention. These are the two basicrules of the "flexible" system. They may certainly havethe result that a reserving State may be a party to thetreaty with regard to State X, but not with regard toState Y, although States X and Y are mutually boundby the treaty. But in the case of a general multilateraltreaty or of a treaty concluded between a considerablenumber of States, this result appears to the Commissionnot to be as unsatisfactory as allowing State Y, by itsobjection, to prevent the treaty from coming into forcebetween the reserving State and State X, which hasaccepted the reservation.

(24) Paragraph 3, as foreshadowed in the introduc-tion to the commentary of these three articles, excludestreaties between a small group of States from the oper-ation of the "flexible" system and applies the rule ofunanimity. In treaties between small groups, consulta-tion is easier concerning the acceptability of a reserva-tion, while the considerations in favour of maintainingthe integrity of the convention may be more compellingthan in the case of general multilateral treaties or othertreaties between large groups of States. The Commissionappreciated that the expression "a small group ofStates" lacks precision, but felt that it was a sufficientgeneral description by which it would be possible todistinguish most treaties falling outside the "flexible"system.

(25) Paragraph 4 states the rule, also foreshadowedin the introduction to the commentary of these threearticles, whereby an objection to a reservation to theconstituent instrument of an international organizationis to be determined by the competent organ of the or-ganization in question. The question has arisen a numberof times and the Secretary-General's report in 1959 in

regard to his handling of an alleged "reservation" to theIMCO Convention stated that it had "invariably beentreated as one for reference to the body having author-ity to interpret the Convention in question".59 The Com-mission considers that in the case of instruments whichform the constitutions of international organizations,the integrity of the instrument is a consideration whichoutweighs other considerations and that it must be forthe members of the organization, acting through itscompetent organ, to determine how far any relaxationof the integrity of the instrument is acceptable.

Article 21

The application of reservations

1. A reservation established in accordance withthe provisions of article 20 operates:

(a) To modify for the reserving State the pro-visions of the treaty to which the reservation re-lates to the extent of the reservation; and

(b) Reciprocally to entitle any other State partyto the treaty to claim the same modification of theprovisions of the treaty in its relations with thereserving State.

2. A reservation operates only in the relationsbetween the other parties to the treaty which haveaccepted the reservation and the reserving State;it does not affect in any way the rights or obliga-tions of the other parties to the treaty inter se.

Commentary

This article sets out the rules concerning the legaleffects of a reservation which has been establishedunder the provisions of articles 18, 19 and 20, assumingthat the treaty is in force. These rules, which appear notto be questioned, follow directly from the consensualbasis of the relations between parties to a treaty. Areservation operates reciprocally between the reservingState and any other party, so that it modifies the appli-cation of the treaty for both of them in their mutualrelations to the extent of the reserved provisions, buthas no effect on the application of the treaty to the otherparties to the treaty, inter se, since they have not ac-cepted it as a term of the treaty in their mutual relations.

Article 22

The withdrawal of reservations

1. A reservation may be withdrawn at any timeand the consent of a State which has accepted thereservation is not required for its withdrawal. Suchwithdrawal takes effect when notice of it has beenreceived by the other States concerned.

2. Upon withdrawal of a reservation the pro-visions of article 21 cease to apply.

Commentary

(1) It has sometimes been contended that when areservation has been accepted by another State it maynot be withdrawn without the latter's consent, as theacceptance of the reservation establishes a regime be-tween the two States which cannot be changed withoutthe agreement of both. The Commission, however, con-

59 Official Records of the General Assembly, Fourteenth Ses-sion, Annexes, agenda item 65, document A/4235.


siders that the preferable rule is that the reserving Stateshould in all cases be authorized, if it is willing to do so,to bring its position into full conformity with the pro-visions of the treaty as adopted.

(2) Another point in this article perhaps calling forcomment is the provision concerning the time at whichthe withdrawal of a reservation is to take effect. Sincea reservation is a modification of the treaty made atthe instance of the reserving State, the Commission con-siders that the onus should lie upon that State to bringthe withdrawal to the notice of the other States; andthat the latter could not be held responsible for a breachof a term of the treaty to which the reservation relatescommitted in ignorance of the withdrawal of thereservation.

SECTION IV. ENTRY INTO FORCE AND REGISTRATION

Article 23

Entry into force of treaties

1. A treaty enters into force in such mannerand on such date as the treaty itself may prescribe.

2. (a) Where a treaty, without specifying thedate upon which it is to come into force, fixes adate by which ratification, acceptance, or approvalis to take place, it shall come into force upon thatdate if the exchange or deposit of the instrumentsin question shall have taken place.

(b) The same rule applies mutatis mutandiswhere a treaty which is not subject to ratification,acceptance or approval fixes a date by which sig-nature is to take place.

(c) However, "where the treaty specifies that itsentry into force is conditional upon a given num-ber, or a given category, of States having signed,ratified, acceded to, accepted or approved thetreaty and this has not yet occurred, the treatyshall not come into force until the condition shallhave been fulfilled.

3. In other cases, where a treaty does not spe-cify the date of its entry into force, the date shallbe determined by agreement between the Stateswhich took part in the adoption of the text.

4. The rights and obligations contained in atreaty become effective for each party as from thedate when the treaty enters into force with respectto that party, unless the treaty expressly providesotherwise.

Commentary

(1) Paragraph 1 concerns the case where the treatyitself provides for the manner and date of its entry intoforce. Paragraph 2 covers the case where the treaty doesnot do so specifically, but does fix a date by which theacts establishing consent to be bound are to take place.In that case, it seems to be accepted that the treaty isto be presumed to have been intended to come into forceupon that date, provided that the necessary instrumentsof ratification, acceptance etc. have been exchanged ordeposited or the necessary signatures have been affixedto the treaty. On the other hand, if the treaty also speci-fies that a certain number of States must have signed,ratified etc. before it enters into force, this conditionmust of course also have been fulfilled.

(2) The Commission considered whether other pro-visions in a treaty might be said to raise presumptionsas to the date of its entry into force, but it concluded

that it should not try to fill in all the gaps which thedrafting of treaties might leave in regard to its entryinto force. To do this would be to go too far into theinterpretation of the intention of the parties in particu-lar treaties. Moreover, it considered that in the eventof a treaty failing to give a clear indication as to the date,it was a matter for agreement between the parties, andparagraph 3 so provides.

(3) Paragraph 4 lays down what is believed to bean undisputed rule of modern treaty law, namely, thata treaty becomes effective for each party on the datewhen it enters into force with respect to that party. Therule in this paragraph therefore excludes the idea thatratification may have retroactive effect to the date ofsignature. It requires a clear provision in the treatyitself to give the treaty retroactive effect, as it does alsoto suspend its effectiveness until a future date.

Article 24

Provisional entry into force

A treaty may prescribe that, pending its entryinto force by the exchange or deposit of instru-ments of ratification, accession, acceptance or ap-proval, it shall come into force provisionally, inwhole or in part, on a given date or on the fulfil-ment of specified requirements. In that case thetreaty shall come into force as prescribed and shallcontinue in force on a provisional basis until eitherthe treaty shall have entered into force definitivelyor the States concerned shall have agreed to termi-nate the provisional application of the treaty.

Commentary

(1) This article recognizes a practice which occurswith some frequency today and requires notice in thedraft articles. Owing to the urgency of the matters dealtwith in the treaty or for other reasons the States con-cerned may provide in a treaty, which it is necessary forthem to bring before their constitutional authorities forratification or approval, that it shall come into forceprovisionally. Whether in these cases the treaty is to beconsidered as entering into force in virtue of the treatyor of a subsidiary agreement concluded between theStates concerned in adopting the text may be a question.But there can be no doubt that such clauses have legaleffect and bring the treaty into force on a provisionalbasis.

(2) Clearly, the "provisional" application of thetreaty will terminate upon the treaty being duly ratifiedor approved in accordance with the terms of the treatyor upon it becoming clear that the treaty is not going tobe ratified or approved by one of the parties. It maysometimes happen that the event is delayed and that theStates concerned agree to put an end to the provisionalapplication of the treaty, if not to annul the treaty itself.

Article 25

The registration and publication of treaties

1. The registration and publication of treatiesentered into by Members of the United Nationsshall be governed by the provisions of Article 102of the Charter of the United Nations.

2. Treaties entered into by any party to thetions, shall as soon as possible be registered withpresent articles, not a Member of the United Na-


the Secretariat of the United Nations and pub-lished by it.

3. The procedure for the registration and pub-lication of treaties shall be governed by the regula-tions in force for the application of Article 102 ofthe Charter.

Commentary

(1) This article recalls, in paragraph 1, the obliga-tion of Members of the United Nations under Article102 of the Charter to register treaties entered into bythem.

(2) Paragraph 2 also places an obligation on States,not Members of the United Nations, to register treatiesentered into by them. Although the Charter obligationis limited to Member States, many non-member Stateshave in practice "registered" their treaties habituallywith the Secretariat of the United Nations. Under arti-cle 10 of the General Assembly's regulations governingthe registration of treaties (see next paragraph), theterm given to such "registration" by non-members is"filing and recording", but in substance it is a form ofvoluntary registration. The Commission considers thatit would be appropriate that States becoming a party toa convention on the conclusion of treaties should under-take a positive obligation to register their treaties.Whether this should then continue to be termed "filing"rather than registration in United Nations regulationsof the General Assembly would be a matter for the Gen-eral Assembly and the Secretary-General to decide. TheCommission hesitated to propose that the sanction appli-cable under Article 102 of the Charter should also beapplied to non-members; since it is a matter whichtouches the procedures of organs of the United Nations,it also thought that breach of such an obligation acceptedby non-members in a general convention could logicallybe regarded in practice as attracting that sanction.

(3) The Commission also considered whether itshould incorporate in the draft articles the provisionsof the General Assembly's regulations adopted in itsresolution 97 ( I ) of 14 December 1946 (as amendedby its resolutions 364 B (IV) of 1 December 1949 and482 (V) of 12 December 1950). These regulations areimportant as they define the conditions for the applica-tion of Article 102 of the Charter. However, havingregard to the administrative character of these regula-tions and to the fact that they are subject to amendmentby the General Assembly, the Commission concludedthat it should limit itself to incorporating the regulationsin article 25 by reference to them in general terms. Forconvenience of reference, the regulations are attached asan annex to the present report.

SECTION V. CORRECTION OF ERRORS AND THE FUNCTIONSOF DEPOSITARIES

Article 26

The correction of errors in the texts of treaties forwhich there is no depositary

1. Where an error is discovered in the text of atreaty for which there is no depositary after thetext has been authenticated, the interested Statesshall by mutual agreement correct the error either:

(a) By having the appropriate correction madein the text of the treaty and causing the correctionto be initialled in the margin by representativesduly authorized for that purpose;

(b) By executing a separate protocol, a proces-verbal, an exchange of notes or similar instrument,setting out the error in the text of the treaty andthe corrections which the parties have agreed tomake; or

(c) By executing a corrected text of the wholetreaty by the same procedure as was employed forthe erroneous text.

2. The provisions of paragraph 1 above shallalso apply where there are two or more authentictexts of a treaty which are not concordant andwhere it is proposed to correct the wording ofone of the texts.

3. Whenever the text of a treaty has been cor-rected under paragraphs 1 and 2 above, the cor-rected text shall replace the original text as fromthe date the latter was adopted, unless the partiesshall otherwise determine.

4. Notice of any correction to the text of atreaty made under the provisions of this articleshall be communicated to the Secretariat of theUnited Nations.

Commentary

(1) Errors and inconsistencies are not uncommonlyfound in the text of treaties and it seems desirable toinclude provisions in the draft articles concerning meth-ods of rectifying them. The present article deals withthe situation where an error is discovered in a treaty forwhich there is no depositary, and also with the situationwhere there are two or more authentic texts of such atreaty and they are discovered not to be concordant. Inthese cases the correction of the error or inconsistencieswould seem to be essentially a matter for agreementbetween the signatories to the treaty. There is a certainamount of evidence of the practice in the matter60 andthe provisions of the present article are based on thatevidence and on information available to members ofthe Commission.

(2) The correction of errors in the text is dealtwith in paragraph 1. The errors in question may be dueeither to typographical mistakes or to a misdescriptionor mis-statement due to a misunderstanding and the cor-rection may affect the substantive meaning of the textas authenticated. If the States concerned are not agreedas to the text being erroneous, there cannot, of course,be any question of a unilateral correction of the text. Inthat case, there is a dispute and it becomes a problem of"mistake" which belongs to another branch of the lawof treaties. It is only when the States are agreed as tothe existence of the error that the matter is one simplyof correction of errors falling under the present article.The normal techniques used for correcting error appearto be those in paragraphs 1 (a) and 1 (b). Only in theextreme case of a whole series of errors would there beany occasion for starting afresh with a new text as con-templated in paragraph 1 (c) ; since, however, one suchinstance is given in Hackworth,60 the United States-Liberia Extradition Treaty of 1937, the Commissionhas included a provision allowing for the substitution ofa completely new text.

(3) The same techniques appear to be appropriatefor the rectification of discordant texts where there aretwo or more authentic texts in different languages.Thus, a number of precedents concern the rectification

G0 Hackworth, Digest of International Law, vol. 5, pp. 93-101.


of discordant passages in one of two authentic texts.61

(4) Since what is involved is merely the correctionor rectification of an already accepted text, it seemsclear that, unless the parties otherwise agree, the cor-rected or rectified text should be deemed to operatefrom the date when the original text came into force.Whether such a correction or rectification falls underthe terms of article 2 of the General Assembly's regula-tions concerning the registration and publication oftreaties and international agreements, when it takes theform merely of an alteration made to the text itself, isperhaps open to question.62 But it would clearly be inaccordance with the spirit of that article that a correc-tion to a treaty should be registered with the Secretary-General and this has therefore been provided for inparagraph 4 of the present article.

(5) The procedure for correction of errors is alsoapplicable to the correction of a lack of concordance indifferent language versions of the authentic text, wheresuch lack of concordance is merely the result of errorsmade before the adoption of the authentic text. TheCommission noted that the question may also arise ofcorrecting not the authentic text itself but versions ofit prepared in other languages; in other words, of cor-recting errors of translation. As, however, this is not amatter of altering an authentic text of the treaty, theCommission did not think it necessary that the articleshould cover the point. In these cases, it would be opento the States concerned to modify the translation bymutual agreement without any special formality. Ac-cordingly, the Commission thought it sufficient to men-tion the point in the present commentary.

Article 27

The correction of errors in the texts of treaties forwhich there is a depositary

1. (a) Where an error is discovered in the textof a treaty for which there is a depositary, afterthe text has been authenticated, the depositaryshall bring the error to the attention of all theStates which participated in the adoption of thetext and to the attention of any other States whichmay subsequently have signed or accepted thetreaty, and shall inform them that it is proposedto correct the error if within a specified time limitno objection shall have been raised to the makingof the correction.

(Z>) If on the expiry of the specified time limitno objection has been raised to the correction ofthe text, the depositary shall make the correctionin the text of the treaty, initialling the correctionin the margin, and shall draw up and execute aproces-verbal of the rectification of the text andtransmit a copy of the proces-verbal to each of theStates which are or may become parties to thetreaty.

2. Where an error is discovered in a certifiedcopy of a treaty, the depositary shall draw up andexecute a proces-verbal specifying both the error

6 1 See, for example, the Commercial Treaty of 1938 betweenthe United States and Norway and the Naturalisation Conven-tion of 1907 between the United States and Peru, in Hack-worth, op. cit., pp. 93 and 96.

6 2 Article 2 reads: "When a treaty or international agreementhas been registered with the Secretariat, a certified statementregarding any subsequent action which effects a change in theparties thereto, or the terms, scope or application thereof, shallalso be registered with the Secretariat".

and the correct version of the text, and shall trans-mit a copy of the proces-verbal to all the Statesmentioned in paragraph 1 (6) above.

3. The provisions of paragraph 1 above shalllikewise apply where two or more authentic textsof a treaty are not concordant and a proposal ismade that the wording of one of the texts shouldbe corrected.

4. If an objection is raised to a proposal to cor-rect a text under the provisions of paragraphs 1 or3 above, the depositary shall notify the objectionto all the States concerned, together with anyother replies received in response to the notifica-tions mentioned in paragraphs 1 and 3. However,if the treaty is one drawn up either within an in-ternational organization or at a conference con-vened by an international organization, the deposi-tary shall also refer the proposal to correct the textand the objection to such proposal to the com-petent organ of the organization concerned.

5. Whenever the text of a treaty has been cor-rected under the preceding paragraphs of the pres-ent article, the corrected text shall replace thefaulty text as from the date on which the lattertext was adopted, unless the States concerned shallotherwise decide.

6. Notice of any correction to the text of atreaty made under the provisions of this articleshall be communicated to the Secretariat of theUnited Nations.

Commentary

(1) This article covers the same problems as article26, but in cases where the treaty is a multilateral treatyfor which there is a depositary. Here the process of ob-taining the agreement of the interested States to thecorrection or rectification of the text is affected by thenumber of the States and it is only natural that thetechniques used should hinge upon the depositary. Informulating the provisions set out in the article, theCommission has based itself upon the information con-tained in the Summary of the Practice of the Secretary-General as Depositary of Multilateral Agreements.63

(2) The technique employed is for the depositary tonotify all the States that took part in the adoption of thetreaty or have subsequently signed or accepted it of theerror or inconsistency and of the proposal to correct thetext, while at the same time specifying an appropriatetime limit within which any objection must be raised.Then, if no objection is raised, the depositary, as agentfor the interested States, proceeds to make the correc-tion, draw up a proces-verbal recording the fact andcirculate a copy of the proces-verbal to the States con-cerned. The precedent on page 9 of the Summary ofPractice perhaps suggests that the Secretary-Generalconsiders it enough, in the case of a typographical error,to obtain the consent of those States which have alreadysigned the offending text. In laying down a general rule,however, it seems safer to say that notifications shouldbe sent to all the interested States, since it is conceiv-able that arguments might arise as to whether the textdid or did not contain a typographical error, e.g. in thecase of punctuation that may affect the meaning.

(3) A further point that may call for comment is,perhaps, the mention in paragraph 4 of the reference ofa difference concerning the correction of a text to the

63 See pp. 8-10, 12, 19-20, 39 (footnote), and annexes 1 and 2.


competent organ of the international organization con-cerned, where the treaty was either drawn up in theorganization or at a conference convened by it. Thisprovision is inspired by the precedent of the rectifica-tion of the Chinese text of the Genocide Conventionmentioned on page 10 of the Summary oj Practice.

(4) Paragraphs 4 and 5 of the commentary to article26 also apply to the present article.

Article 28The depositary of multilateral treaties

1. Where a multilateral treaty fails to designatea depositary of the treaty, and unless the Stateswhich adopted it shall have otherwise determined,the depositary shall be:

(a) In the case of a treaty drawn up within aninternational organization or at an internationalconference convened by an international organiza-tion, the competent organ of that international or-ganization ;

(b) In the case of a treaty drawn up at a con-ference convened by the States concerned, theState on whose territory the conference is con-vened.

2. In the event of a depositary declining, failingor ceasing to take up its functions, the negotiatingStates shall consult together concerning the nomi-nation of another depositary.

Commentary(1) A multilateral treaty normally designates a

particular State or international organization as deposi-tary. However, if the States concerned should fail tonominate a depositary in the treaty itself, paragraph 1of this article provides either for an international or-ganization or for the "host" State of the conference atwhich the treaty was drawn up to act as depositary. Theactual provisions of paragraph 1 reflect existing prac-tice in the designation of depositaries in multilateraltreaties.

(2) Cases may possibly occur where a depositarydeclines, fails or ceases to act, and cases of the last typeare known to have occurred. Accordingly, the Commis-sion thought it prudent to cover this possibility in para-graph 2 of the present article.

Article 29The functions of a depositary

1. A depositary exercises the functions of cus-todian of the authentic text and of all instrumentsrelating to the treaty on behalf of all States partiesto the treaty or to which it is open to becomeparties. A depositary is therefore under an obliga-tion to act impartially in the performance of thesefunctions.

2. In addition to any functions expressly pro-vided for in the treaty, and unless the treaty other-wise provides, a depositary has the functions setout in paragraphs 3 to 8 below.

3. The depositary shall have the duty:(a) To prepare any further texts in such addi-

tional language as may be required either underthe terms of the treaty or the rules in force in aninternational organization;

(b) To prepare certified copies of the original

text or texts and transmit such copies to the Statesmentioned in paragraph 1 above;

(c) To receive in deposit all instruments andnotifications relating to the treaty and to execute aproces-verbal of any signature of the treaty or ofthe deposit of any instrument relating to thetreaty;

(d) To furnish to the State concerned an ac-knowledgment in writing of the receipt of anyinstrument or notification relating to the treatyand promptly to inform the other States men-tioned in paragraph 1 of the receipt of such instru-ment or notification.

4. On a signature of the treaty or on the depositof an instrument of ratification, accession, ac-ceptance or approval, the depositary shall have theduty of examining whether the signature or in-strument is in conformity with the provisions ofthe treaty in question, as well as with the provi-sions of the present articles relating to signatureand to the execution and deposit of such instru-ments.

5. On a reservation having been formulated, thedepositary shall have the duty:

(a) To examine whether the formulation of thereservation is in conformity with the provisionsof the treaty and of the present articles relating tothe formulation of reservations, and, if need be,to communicate on the point with the State whichformulated the reservations;

(b) To communicate the text of any reservationand any notifications of its acceptance or objectionto the interested States as prescribed in articles18 and 19.

6. On receiving a request from a State desiringto accede to a treaty under the provisions of article9, the depositary shall as soon as possible carry outthe duties mentioned in paragraph 3 of that article.

7. Where a treaty is to come into force upon itssignature by a specified number of States or uponthe deposit of a specified number of instrumentsof ratification, acceptance or accession or uponsome uncertain event, the depositary shall have theduty:

(a) Promptly to inform all the States mentionedin paragraph 1 above when, in the opinion of thedepositary, the conditions laid down in the treatyfor its entry into force have been fulfilled;

(6) To draw up a proces-verbal of the entry intoforce of the treaty, if the provisions of the treatyso require.

8. In the event of any difference arising be-tween a State and the depositary as to the per-formance of these functions or as to the applica-tion of the provisions of the treaty concerningsignature, the execution or deposit of instruments,reservations, ratifications or any such matters, thedepositary shall, if the State concerned or the de-positary itself deems it necessary, bring the ques-tion to the attention of the other interested Statesor of the competent organ of the organizationconcerned.

Commentary

(1) The depositary of a treaty plays a significantrole in what is really the administration of the pro-cedural clauses of the treaty, and a number of the func-

186 Yearbook of thp International Law Commission, Vol. II

tions of a depositary have already been mentioned inconnexion with preceding provisions of the present arti-cles. It is thought convenient, however, to collect to-gether in a single article the main functions of a deposi-tary relating to the conclusion and entry into force oftreaties and that is the purpose of article 29. In draftingits provisions the Commission has naturally paid par-ticular attention to the Summary of the Practice oj theSecretary-General as Depositary of Multilateral Agree-ments.

(2) Paragraph 1 states the general principle that adepositary, whether a State or an international organi-zation, acts on behalf of all the parties to the treatyas their delegate to hold the authentic text of the treatyand to receive and communicate all instruments andnotifications relating to the treaty. In this capacity, thedepositary must be impartial and perform its functionswith objectivity. On the other hand, the fact that aState is a depositary does not disqualify it from exercis-ing the normal rights of a State which is a party to atreaty, or took part in the adoption of its text, in re-gard to the procedural clauses of the treaty. In thatcapacity it may express its own policies, but it mustcarry out its duties as depositary with impartiality andobjectivity.

(3) Paragraph 2 of the article requires no comment.Paragraph 3 deals with the functions of the depositaryin relation to the original text of the treaty, and as toall instruments and notifications relating to the treaty.Paragraph 4 makes it clear that the depositary has acertain duty to examine whether any signatures or in-struments are in due form.

(4) Paragraph 5 recalls the duties of the depositaryunder article 18 concerning reservations. Here again itis made clear that the depositary has a certain duty toexamine whether a reservation has been formulated inconformity with the provisions of the treaty. On theother hand, it is not the function of a depositary toadjudicate upon the validity of a reservation. If a reser-vation appears to be irregular, the proper course of adepositary is to draw the attention of the reserving Stateto the matter and, if the latter does not concur with thedepositary, to communicate the reservation to the other

interested States and bring the question of the apparentirregularity to their attention in accordance with para-graph 8 of the present article.

(5) Paragraph 6 recalls the duties placed upon adepositary in the event of a State applying to become aparty to a treaty under article 9.

(6) Paragraph 7 deals with the depositary's dutyto notify the interested States of the coming into forceof the treaty, when the conditions for its entry into forcehave been fulfilled. The question whether the requirednumber of signatures or of instruments of ratification,accession, etc. has been reached may sometimes pose aproblem, as when questionable reservations have beenmade. In this connexion, as in others, although the de-positary has the function of making a preliminary ex-amination of the matter, it is not invested with com-petence to make a final determination of the entry intoforce of the treaty binding upon the other States con-cerned. However normal it may be for States to acceptthe depositary's appreciation of the date of the entryinto force of a treaty, it seems clear that this apprecia-tion may be challenged by another State and that thenit would be the duty of the depositary to consult all theother interested States as provided in paragraph 8 ofthe present article. Accordingly, paragraph 7 does notgo beyond requiring the depositary to inform the inter-ested States of the date when, in its opinion, the condi-tions for the entry into force of the treaty have beenfulfilled.

(7) Paragraph 8 lays down the general principlethat, in the event of any difference arising between thedepositary and another State, the duty of the depositaryis to consult all the other interested States. Since thedepositary is not invested with competence to makefinal determinations on matters arising out of the per-formance of its functions, the matter must be referredto all the States interested in the treaty. If the Stateconcerned or the depositary itself deems it necessary,they may bring the question to the attention of the otherinterested States. The rule has been formulated in thatway because there might be cases where the State hav-ing a difference with a depositary might prefer not toinsist upon the matter being referred to the other States.

Chapter HI

FUTURE WORK IN THE FIELD OF THE CODIFICATION ANDPROGRESSIVE DEVELOPMENT OF INTERNATIONAL LAW

24. In its resolution 1505 (XV) of 12 December1960, the General Assembly decided to place on the pro-visional agenda of its sixteenth session the item "Futurework in the field of the codification and progressivedevelopment of international law", "in order to studyand survey the whole field of international law andmake necessary suggestions with regard to the prepara-tion of a new list of topics for codification and for theprogressive development of international law".

25. The resolution also invited Member States tosubmit in writing to the Secretary-General, before 1July 1961, any views or suggestions they might haveon this question for consideration by the General As-sembly.

26. In reply to a circular letter dated 25 January1961, the Secretary received the observations of seven-teen Governments, which were communicated to Mem-ber States.64 An analysis of these observations, preparedby the Secretariat, has been published.65

27. The International Law Commission devoted its614th-616th meetings to this question at its thirteenthsession, in 1961.66

28. In accordance with resolution 1505 (XV), theGeneral Assembly placed the question on the agenda ofits sixteenth session and referred it, for study and re-port, to the Sixth Committee, which considered it at its713th-730th meetings, from 14 November to 13 Decem-ber 1961.

29. On the recommendation of the Sixth Committee,the General Assembly, on 18 December 1961, adoptedresolution 1686 (XVI), reading as follows:

"The General Assembly,"Recalling its resolution 1505 (XV) of 12 Decem-

ber 1960,"Considering that the conditions prevailing in the

world today give increased importance to the role ofinternational law in relations among nations,

"Emphasizing the important role of codification andprogressive development of international law with aview to making international law a more effectivemeans of furthering the purposes and principles setforth in Articles 1 and 2 of the Charter of the UnitedNations,

"Mindful of its responsibilities under Article 13,paragraph 1 a, of the Charter to encourage the pro-gressive development of international law and its codi-fication,

"Having surveyed the present state of internationallaw with particular regard to the preparation of a

6 4 Official Records of the General Assembly, Sixteenth Ses-sion, Annexes, agenda item 70, documents A/4796 and Add.1-8.

65 Ibid., document A/C.6/L.491.™Ibid., Sixteenth Session, Supplement No. 9 (A/4843),

paras. 40 and 41.

new list of topics for codification and progressive de-velopment of international law,

"1. Expresses its appreciation to the Interna-tional Law Commission for the valuable work it hasalready accomplished in the codification and progres-sive development of international law;

"2. Takes note of chapter III of the report of theInternational Law Commission covering the work ofits thirteenth session;

"3. Recommends the International Law Commis-sion:

"(a) To continue its work in the field of the lawof treaties and of State responsibility and to includeon its priority list the topic of succession of Statesand Governments;

"(b) To consider at its fourteenth session itsfuture programme of work, on the basis of sub-para-graph (a) above and in the light of the discussion inthe Sixth Committee at the fifteenth and sixteenthsessions of the General Assembly and of the observa-tions of Member States submitted pursuant to resolu-tion 1505 (XV), and to report to the Assembly at itsseventeenth session on the conclusions it has reached;

"4. Decides to place on the provisional agenda ofits seventeenth session the question entitled 'Consid-eration of principles of international law concerningfriendly relations and co-operation among States inaccordance with the Charter of the United Nations'."

30. The question of future work in the field of thecodification and progressive development of interna-tional law was placed on the agenda of the fourteenthsession of the Commission, which discussed it at its629th-637th meetings, from 25 April to 7 May 1962,and at its 668th meeting, on 26 June 1962.

31. The Commission held a general debate on itswhole programme of future work, including the topicsmentioned in paragraph 3 (a) of resolution 1686(XVI). It had before it a working paper prepared bythe Secretariat (A/CN.4/145). The introduction tothe working paper enumerates the topics referred to theCommission by the General Assembly. Parts I and IIof the document set out the topics proposed for codifi-cation by Governments in their replies, which weretransmitted in accordance with General Assembly reso-lution 1505 (XV) (see above, para. 26). Some of thesetopics are included either among those whose codifica-tion the Commission had considered in 1949,67 or in theprovisional list of fourteen topics selected by the Com-mission for codification.68 The other topics proposed byGovernments are new, in the sense that the Commissionhas never considered their codification.

<"• Ibid., Fourth Session, Supplement No. 10 (A/925), para. 15.68 Ibid., para. 16.

187


I. Topics referred to in paragraph 3 (a) ofGeneral Assembly resolution 1686 (XVI)

LAW OF TREATIES

32. It was agreed that the Commission should con-tinue the study of the law of treaties, which was on theagenda of the present session and which it had dis-cussed at several earlier sessions. It was also agreedthat this topic would receive priority at both the presentand future sessions. The Commission considered thatno change should be made in the plan of work which ithad followed up to the present in its consideration ofthe topic. It will therefore continue its consideration ofthe topic on the basis of the reports prepared by theSpecial Rapporteur (see chapters II and IV of thisreport).

STATE RESPONSIBILITY

33. The idea that the topic of State responsibilityshould be one of those which are to receive priority inthe Commission's work met with the approval of all themembers. There were divergent views at the outset,however, concerning the best approach to the study ofthe question and the issues which the study shouldcover.

34. Some members pointed out that it would not bea question, as the General Assembly recommended, ofmerely continuing work already begun on State respon-sibility ; the reports of the preceding Special Rap-porteur, who is no longer a member of the Commission,could not now serve as a basis for the Commission'swork, as it had not accepted them in principle; thestudy of the topic would therefore have to start fromthe beginning, and the first thing to determine was howthe study should be approached.

35. Other members pointed out that State responsi-bility was an extremely complex subject and coveredsuch a large part of international law that the Commis-sion should first enumerate certain general principles.They considered that it would be possible to preparesuch a draft, but they were doubtful whether an accept-able draft concerning responsibility for damage causedto aliens could be produced within a reasonable periodof time.

36. Other members considered that if the Commis-sion intended to examine only one particular aspect ofthe question of State responsibility it could not choosea more appropriate aspect than the responsibility fordamage caused to aliens.

37. When studying the problem one could not but beimpressed by the great number of cases in which inter-national tribunals had ruled on the question of respon-sibility for damage caused to aliens. The violation ofrules of international law in this respect had given riseto numerous international claims in which the responsi-bility of States was involved. These problems were ofparticular importance today in connexion with thetreatment of foreign property and foreign investments,which played so important a part.

38. While it was true that the responsibility for dam-age caused to aliens was not the only aspect of inter-national responsibility, it had to be admitted that, if theCommission prepared a draft on international respon-sibility in which this aspect were ignored, its work wouldbe incomplete.

39. The opinion was also expressed that, in definingthe subject, the Commission should not allow itself tobe led astray by historical considerations. While ad-

mittedly the theory of the responsibility of the Statehad evolved from a body of case-law concerned particu-larly with violations of rights of aliens, nevertheless thedistinction between the two questions should be stressed.Those two questions were, firstly, the international re-sponsibility of the State in general, and, secondly, theState's treatment of aliens. It was necessary first to es-tablish what were the basic rules and what were theobligations of States with regard to aliens. By contrast,the State's international responsibility as such arose incircumstances in which a subject of international lawinfringed a rule of international law—any rule what-ever. Still other members, while agreeing that certainproblems which are usually dealt with under the head-ing "responsibility of States"—such as the responsi-bility of a State for damage caused to the person orproperty of aliens, expropriation and nationalizationincluded—would fall under the heading of "treatmentof aliens", considered however that as such they oughtto be dealt with by the Commission.

40. Some members pointed out that it was the Com-mission's duty to examine all aspects of the question inthe light of recent developments in international life.In the past, the theory of State responsibility had beencentred on the treatment of aliens. Under modern inter-national law, State responsibility arose less in connexionwith the treatment of aliens than as a result of actswhich endangered or might endanger international peace,such as aggression, denial of national independence,or of exchange of friendly relations with States, andviolations of provisions of the United Nations Charter.In the traditional international law concerning State re-sponsibility, attention had been focused on such prob-lems as denial of justice, the rule on the exhaustion oflocal remedies and indemnification. Those problems hadnot become obsolete but their relative importance hadgreatly diminished in modern international law. TheCommission would of course be doing useful work bystudying those problems but it should not stop there; itshould go further and study particularly the problemsarising in practice. Some other members expressed theview that the Commission should not confine its studyto more theoretical and less controversial subjects suchas general principles governing the responsibility ofStates. By doing so it would unduly limit the problemwhich the General Assembly requested it to study.Finally it was suggested that the Commission shouldfirst engage in a study of the general principles of re-sponsibility and then proceed to a more detailed analysiswithin which the problems of responsibility for damagecaused to aliens and its redress would find their properplace.

41. Different opinions were also expressed concern-ing the method of work which should be adopted for theconsideration of the question of State responsibility.

42. In the view of some members, the Commissionshould follow its usual method of work and appoint aspecial rapporteur for the study of the topic. Othermembers considered that, owing to the particular diffi-culty involved in the study of State responsibility, theCommission should vary its practice and appoint a sub-committee composed of a small number of its members,which would be asked to submit a report not on the sub-stance of the matter but on purely preliminary ques-tions, the approach to the subject and the aspects whichshould be considered.

43. Some of the members who favoured the appoint-ment of a special rapporteur believed that he should beappointed at the present session. The immediate ap-


pointment of a special rapporteur should not prevent theadoption of constructive suggestions to improve theCommission's methods of work. For example, the spe-cial rapporteur would find it useful to draw on theknowledge and experience of his colleagues on the Com-mission. Possibly, it was said, the members interestedin the question of international responsibility mightmeet a few days before the beginning of the fifteenthsession to discuss the results of the special rapporteur'swork with him before the session actually opened.

44. In another view, it would be unwise to set up asub-committee before appointing a special rapporteur.If the Commission should decide to s-et up such a sub-committee, it should logically first appoint a special rap-porteur, who might be assisted by an advisory sub-committee. The sub-committee would hold a fewmeetings during the present session in order to consider,jointly with the special rapporteur, the scope of thestudy to be undertaken. At the next session the specialrapporteur would submit a preliminary report afterhaving consulted the sub-committee. As soon as thereport was submitted, the sub-committee would cease toexist.

45. Some members had doubts on the advisabilityof appointing a special rapporteur on State responsi-bility forthwith. The topic was so complex and so ill-defined, they said, that the Commission could not em-bark on a study without the necessary preparatory work.It was lack of preparation which, in their opinion, hadled to the present situation, after years of work and asuccession of reports. Accordingly, they considered thatthe Commission should set up a small sub-committee todefine the scope of the subject and deal with other pre-liminary matters. The sub-committee should be set upat the present session and be allowed sufficient time togive a considered opinion on the various preliminaryaspects of the question. It should not be a standing body,but should cease to exist as soon as it had reported tothe Commission. After discussing the sub-committee'sreport, the Commission would decide on the best meth-od of dealing with the subject.

46. Article 19, paragraph 1, of the Commission'sStatute, which provides that the Commission should"adopt a plan of work appropriate to each case", wasquoted in support of the proposal to set up such a sub-committee. Supporters of the proposal also claimed thatit was desirable for the Commission to revise its methodof work in respect of State responsibility and not toappoint a special rapporteur until preliminary researchcarried out by an adequately representative sub-commit-tee was available.

47. As a result of the discussion, the Commissionagreed that it would be necessary to undertake prepara-tory work before a special rapporteur was appointed.Accordingly, at its 637th meeting on 7 May 1962, theCommission decided to set up a Sub-Committee withthe following ten members: Mr. Ago (Chairman), Mr.Briggs, Mr. Gros, Mr. Jimenez de Arechaga, Mr. Lachs,Mr. de Luna, Mr. Paredes, Mr. Tsuruoka, Mr. Tunkinand Mr. Yasseen. The task of the Sub-Committee wasto submit to the Commission at its next session a pre-liminary report containing suggestions concerning thescope and approach of the future study. The Sub-Com-mittee met on 21 June 1962 and made a number ofsuggestions which were submitted to the Commissionat its 668th meeting on 26 June 1962.

48. The Commission approved a suggestion that theSub-Committee should confine its debates to the gen-

eral aspects of State responsibility. It also adopted anumber of other suggestions concerning the organiza-tion of the Sub-Committee's work (see para. 68 below).


49. In principle, all members were in favour of in-cluding the topic of succession of States and Govern-ments in the list of priorities for the Commission's work.

50. Some members, however, indicated that theywere not entirely convinced that general principles gov-erning the subject existed in international law, thoughthey were prepared to admit that it would be possibleto derive certain rules from practice and from the pro-visions of existing treaties. They considered the sub-ject extremely important, especially at the present time,and since the last war, when the independence of alarge number of States had given rise to so many prob-lems concerning the succession of States. Many ex-amples were quoted to illustrate the variety of succes-sion problems which these new States had to face andfor which a general solution was necessary. It wasstressed that the subject was of practical even morethan theoretical importance and that the Commissionshould therefore not relegate it to second place andshould not postpone its investigation.

51. Other members, while in favour of the study,pointed out that the Commission must first obtain thenecessary documentation. To obtain the relevant infor-mation, it was proposed that a questionnaire should besent to Governments and that the Secretariat shouldbe requested to prepare some documents on the subject.

52. Some members considered that the successionof States and of Governments comprised two distinctquestions and that at the present juncture the Commis-sion should take up the question of succession of States,leaving the question of succession of Governments untillater. Others, on the contrary, considered that the suc-cession of States should, at least in the preliminarystage, be studied at the same time as the succession ofGovernments, since international practice proved thatit was not always easy to draw a distinction betweenthe two. The Commission has not yet taken a decisionon this issue.

53. With that consideration in mind, some membersdrew the Commission's attention to the complexity ofthe subject and proposed that a start should be madeby defining its scope. They believed that the Commis-sion would be wise to draw up at the current session alist of items to be covered by the future study, to facili-tate the task of the special rapporteur and serve as abasis for his report. Suggestions for a new method ofwork concerning the succession of States and Govern-ments were similar to those made in connexion withthe method of work on State responsibility (see paras.41-46 above).

54. In the light of these observations, the Commis-sion, at its 637th meeting on 7 May 1962, decided toset up a Sub-Committee composed of the following tenof its members: Mr. Lachs (Chairman), Mr. Bartos,Mr. Briggs, Mr. Castren, Mr. El-Erian, Mr. Elias, Mr.Liu, Mr. Rosenne, Mr. Tabibi and Mr. Tunkin. Thetask of the Sub-Committee was to submit to the Com-mission a preliminary report containing suggestionson the scope of the subject, the method of approach fora study and the means of providing the necessary docu-mentation.

55. The Sub-Committee held two meetings, on 16May and 21 June 1962, and drew up a number of sug-


gestions, which were submitted to the Commission atits 668th meeting on 26 June 1962.

56. At that meeting the Commission took certaindecisions concerning the organization of the Sub-Com-mittee's work (see para. 72 below).

II. The Commission's future programme of work(General Assembly resolution 1686 (XVI),paragraph 3 (5 ) )

57. In the course of the discussion, some membersreferred to General Assembly resolution 1686 (XVI)on the Commission's future programme of work andsaid that that programme did not need to be enlarged.Others argued that, in view of recent developments ininternational law and of the need for promoting friendlyrelations and co-operation among States, the Commis-sion's programme should be reviewed and amended soas to include additional topics of definite current in-terest.

58. Various comments were also made on the pos-sible choice of additional topics. Some members thoughtthat the Commission might consider studying certaintopics on which opinions were divided, though not topicsof a markedly political nature. Other members pointedout, on the other hand, that, as its task comprised boththe codification and the progressive development of in-ternational law, the Commission should not rule outcomplex topics, even though they had political over-tones. The Commission would be the most appropriatebody to formulate principles of international law capableof serving the cause of international co-operation.

59. At its 634th meeting held on 2 May 1962, theCommission set up a Committee of eight members toconsider the future programme of work in accordancewith General Assembly resolution 1686 (XVI), para-graph 3 (b). The Committee, which was composed ofMr. Amado (Chairman), Mr. Ago, Mr. Bartos, Mr.Cadieux, Mr. Castren, Mr. Jimenez de Arechaga, Mr.

Pessou and Mr. Tunkin, met on 21 June 1962 when itconsidered the question on the basis of the workingpaper prepared by the Secretariat (see para. 31 above).The Committee formulated a number of suggestionswhich were submitted to the plenary Commission at its668th meeting on 26 June 1962.

60. The Commission, on the recommendation of theCommittee, agreed to limit the future programme ofwork for the time being to the three main topics understudy or to be studied pursuant to General Assemblyresolution 1686 (XVI), paragraph 3 (a), namely, thelaw of treaties, State responsibility, and succession ofStates and Governments. It further decided to includein the programme four additional topics of more lim-ited scope which had been referred to it by earlier Gen-eral Assembly resolutions, namely, the question ofspecial missions (resolution 1687 (XVI)), the questionof relations between States and inter-governmentalorganizations (resolution 1289 (XIII)), the right ofasylum (resolution 1400 (XIV)), and the juridical re-gime of historic waters, including historic bays (reso-lution 1453 (XIV)).

61. The Commission considered that many of thetopics proposed by Governments deserved study with aview to codification. In drawing up its future pro-gramme of work, however, it is obliged to take accountof its resources. The law of treaties, State responsibilityand succession of States and Governments are suchbroad topics that they alone are likely to keep it occu-pied for several sessions. The Commission accordinglyconsiders it inadvisable for the time being to add any-thing further to the already long list of topics on itsagenda.

62. The Commission established two Sub-Commit-tees, which are to meet between this session and thenext for the purpose of undertaking the necessary pre-paratory work on the topics of State responsibility andthe succession of States and Governments.

Chapter IV

PLANNING OF THE WORK OF THE COMMISSION FOR THE NEXTSESSION

63. As stated in paragraph 60 above, the Commis-sion decided to include the following seven subjects inthe programme for its future work: (1) Law of treaties ;(2) State responsibility; (3) Succession of States andGovernments; (4) Special missions; (5) Relations be-tween States and inter-governmental organizations; (6)Principles and rules of international law relating to theright of asylum; (7) Juridical regime of historic waters,including historic bays.

64. The Commission adopted a number of decisionsrelating to the planning of its work on the law of trea-ties, on State responsibility, on the succession of Statesand Governments, on the relations between States andinter-governmental organizations and on special mis-sions. To facilitate its work on the responsibility ofStates and the succession of States and Governments,the Commission established two Sub-Committees to un-dertake the necessary preparatory work (see paras. 47,54 and 62 above).

I. Law of treaties

65. The Commission, having studied at the pres-ent session the report of the Special Rapporteur, SirHumphrey Waldock, on the conclusion, entry into forceand registration of treaties, will proceed to the consid-eration of his second report dealing with the validityand duration of treaties.

66. In connexion with its future work on the lawof treaties, the Commission requested the Secretariat topresent to its next session a memorandum reproducingvarious decisions taken by the General Assembly onthe law of treaties and pertinent extracts from the re-ports of the Sixth Committee to the plenary Assembly,which constituted an explanation of the Assembly'sdecisions.

II. State responsibility

67. The Sub-Committee on State Responsibility heldone private meeting on 21 June 1962. It had two work-ing papers before it, one entitled "The duty to compen-sate for the nationalization of foreign property", sub-mitted by Mr. Jimenez de Arechaga, the other entitled"An approach to State responsibility", submitted byMr. Paredes.

68. During that meeting, views were expressed onthe organization of the Sub-Committee's work. TheSub-Committee formulated a number of suggestionswhich were submitted to the Commission at its 668thmeeting on 26 June 1962. In the light of these sugges-tions, the Commission adopted the following decisions:(1) the Sub-Committee will meet at Geneva betweenthe Commission's current session and its next sessionfrom 7 to 16 January 1963; (2) its work will be de-voted primarily to the general aspects of State responsi-

bility; (3) the members of the Sub-Committee willprepare for it specific memoranda relating to the mainaspects of the subject, these memoranda to be submittedto the Secretariat not later than 1 December 1962 sothat they may be reproduced and circulated before themeeting of the Sub-Committee in January 1963 ; (4) theChairman of the Sub-Committee will prepare a reporton the results of its work to be submitted to the Com-mission at its next session.

69. At its 669th meeting on 27 June 1962, the Com-mission decided to include an item entitled "Report ofthe Sub-Committee on State Responsibility'" in theagenda of its next session.

III. Succession of States and Governments

70. The Sub-Committee on the Succession of Statesand Governments held two private meetings, on 16 Mayand 21 June 1962 respectively.

71. At its first meeting, the Sub-Committee held anexchange of views on the question. A certain numberof problems had been suggested which might constituteelements of a future report by the Sub-Committee. Atthe second meeting, after a further exchange of views,it was decided that more thought must be given to thescope of and approach to the subject. Accordingly, theSub-Committee confined itself to considerations regard-ing the preparatory work that would be required. Atthe same meeting, the Chairman drew attention to aworking paper submitted by Mr. Elias, entitled "De-limitation of the scope of succession of States and Gov-ernments".

72. In the light of the Sub-Committee's suggestions,the Commission took the following decisions at its 668thmeeting on 26 June 1962: (1) The Sub-Committee willmeet at Geneva on 17 January 1963, immediately afterthe session of the Sub-Committee on State Responsi-bility, for as long as necessary but not beyond 25 Janu-ary 1963; (2) the Commission took note of the Secre-tary's statement in the Sub-Committee regarding thefollowing three studies to be undertaken by theSecretariat: (a) a memorandum on the problem ofsuccession in relation to membership of the United Na-tions, (b) a paper on the succession of States undergeneral multilateral treaties of which the Secretary-General is the depositary, (c) a digest of the decisionsof international tribunals in the matter of State suc-cession; (3) the members of the Sub-Committee willsubmit individual memoranda dealing essentially withthe scope of and approach to the subject, the reports tobe submitted to the Secretariat not later than 1 Decem-ber 1962 to permit reproduction and circulation beforethe January 1963 meeting of the Sub-Committee; (4)its Chairman will submit to the Sub-Committee, at itsnext meeting or, if possible, a few days in advance, a

191


working paper containing a summary of the views ex-pressed in the individual reports; (5) the Chairman ofthe Sub-Committee will prepare a report on the resultsachieved for submission to the next session of the Com-mission.

73. The Secretary-General has sent a circular noteto Governments inviting them to submit the texts ofany treaties, laws, decrees, regulations, diplomatic cor-respondence, etc. concerning the procedure of successionrelating to the States which have achieved independenceafter the Second World War.

74. At its 669th meeting on 27 June 1962, the Com-mission decided to place on the agenda of its next ses-sion the item entitled "Report of the Sub-Committee onSuccession of States and Governments".

IV. Relations between States and inter-governmental organizations

75. At its 669th meeting on 27 June 1962, the Com-mission appointed Mr. El-Erian Special Rapporteur onrelations between States and inter-governmental organ-izations. The Special Rapporteur will submit a reporton this subject to the next session of the Commission.The Commission decided to place the question on theagenda of its next session.

V. Special missions76. The Commission decided, at its 669th meeting

on 27 June 1962, to place the question of special mis-sions on the agenda of its next session. The Secretariatwill prepare a working paper on this subject.

Chapter V

OTHER DECISIONS AND CONCLUSIONS OF THE COMMISSION

I. Co-operation with other bodies77. At its 656th meeting the Commission considered

the item concerning co-operation with other bodies.78. It noted the report of Mr. Radhabinod Pal

(A/CN.4/146) on the fifth session of the Asian-Afri-can Legal Consultative Committee held at Rangoonfrom 17 to 30 January, which Mr. Pal had attendedas an observer for the Commission.

79. The Secretary brought to the Commission's at-tention the two letters which had been received fromthe Secretary of the Asian-African Legal ConsultativeCommittee. In the first of those letters, the Secretaryof the Committee stated that the Committee had beenunable to be represented by an observer at the Com-mission's session. By the second letter the Commissionwas invited to send an observer to the sixth session ofthe Committee in 1963, the agenda for which was toinclude the topic of State responsibility and possibly thelaw of treaties and the question of the legality of atomictests.

80. The Inter-American Juridical Committee wasrepresented at the session by Mr. Hugo Juan Gobbi,who addressed the Commission on the Committee'sbehalf. The Secretary informed the Commission thatthe next session of the Inter-American Council of Juristswas to be held in El Salvador on a date which had notyet been fixed.

81. The Commission decided to be represented byobservers at the next sessions of the Asian-African Le-gal Consultative Committee and of the Inter-AmericanCouncil of Jurists. It authorized the Chairman to ap-point the observers as soon as the place and date of thesessions of these bodies were known.

II. Date and place of the next session

82. The Commission noted that, owing to the de-cision of the General Assembly to convene a conferenceof plenipotentiaries on consular intercourse at Viennaearly in March 1963, difficulties of a practical naturemight arise if the Commission's session was scheduledto open on a date close to the end of the Vienna con-ference. In the first place, several members of theCommission would have to attend the conference asrepresentatives of their countries; in the second place,it was not impossible that the conference might continuebeyond the expected date of its closure. Consequently,in order to allow for a reasonable interval between the

end of the Vienna conference and the beginning of theCommission's next session, it was decided, after con-sultation with the Secretary-General, that the fifteenthsession of the Commission would be held at Genevafrom 6 May to 12 July 1963.

S3. Under the terms of the five-year "pattern ofconferences" established by resolution 1202 (XII)adopted by the General Assembly on 13 December1957, the Commission may meet at Geneva only if thereis no overlapping with the summer session of the Eco-nomic and Social Council. Since this pattern of con-ferences is to be discussed at the General Assembly'snext session, the Commission held an exchange ofviews on the subject. During the discussion, many mem-bers drew attention to the difficulties to which the pres-ent arrangements give rise for those of them who areuniversity professors. In the circumstances, the firstMonday in May was decided on as the most convenientopening date for the session, since it would reduce tothe minimum both the duration of overlapping with thesession of the Council and the period during which sev-eral members of the Commission have difficulty in se-curing release from their professional duties and hencein taking part in the Commission's work.

III. Production of documents, summary recordsand translation facilities

84. In connexion with its future work the Commis-sion is bound to draw the attention of the competentorgans of the United Nations to the inadequate facilitiesrelating to the production of documents, summary rec-ords and translations put at its disposal. The Commis-sion wishes to emphasize that technical inadequacies anddelays in the production of documents, summary recordsand draft texts in the working languages of the Com-mission created serious inconvenience and considerablydelayed its work.

85. The Commission wishes to put on record itshope that proper arrangements will be made to avoidthe repetition of these inadequacies and that in future itwill have proper services at its disposal.

IV. Representation at the seventeenth sessionof the General Assembly

86. The Commission decided that it should be rep-resented at the seventeenth session of the General As-sembly, for purposes of consultation, by its Chairman,Mr. Radhabinod Pal.

193

ANNEX

Registration and publication of treaties and international agreements: regulations to give effect toArticle 102 of the Charter of the United Nations"

PART ONE

REGISTRATION

Article 1

1. Every treaty or international agreement, whatever its formand descriptive name, entered into by one or more Membersof the United Nations after 24 October 1945, the date of thecoming into force of the Charter, shall as soon as possible beregistered with the Secretariat in accordance with these regu-lations.

2. Registration shall not take place until the treaty or inter-national agreement has come into force between two or moreof the parties thereto.

3. Such registration may be effected by any party or in ac-cordance with article 4 of these regulations.

4. The Secretariat shall record the treaties and internationalagreements so registered in a Register established for that pur-pose.

Article 2

1. When a treaty or international agreement has been regis-tered with the Secretariat, a certified statement regarding anysubsequent action which effects a change in the parties thereto,or the terms, scope or application thereof, shall also be regis-tered with the Secretariat.

2. The Secretariat shall record the certified statement soregistered in the register established under article 1 of theseregulations.

Article 3

1. Registration by a party, in accordance with article 1 ofthese regulations, relieves all other parties of the obligation toregister.

2. Registration effected in accordance with article 4 of theseregulations relieves all parties of the obligation to register.

Article 4

1. Every treaty or international agreement subject to article 1of these regulations shall be registered ex officio by the UnitedNations in the following cases:

(a) Where the United Nations is a party to the treaty oragreement;

(b) Where the United Nations has been authorized by thetreaty or agreement to effect registration;

(c) Where the United Nations is the Depositary of a multi-lateral treaty or agreement,

2. A treaty or international agreement subject to article 1of these regulations may be registered with the Secretariat by aspecialized agency in the following cases:

(a) Where the constituent instrument of the specializedagency provides for such registration;

(b) Where the treaty or agreement has been registered withthe specialized agency pursuant to the terms of its constituentinstrument;

(c) Where the specialized agency has been authorized by thetreaty or agreement to effect registration.

Article 5

1. A party or specialized agency, registering a treaty or in-ternational agreement under article 1 or 4 of these regulations,

shall certify that the text is a true and complete copy thereofand includes all reservations made by parties thereto.

2. The certified copy shall reproduce the text in all the lan-guages in which the treaty or agreement was concluded andshall be accompanied by two additional copies and by a state-ment setting forth, in respect of each party:

(a) The date on which the treaty or agreement has comeinto force;

(b) The method whereby it has come into force (for ex-ample : by signature, by ratification or acceptance, by accession,et cetera).

Article 6

The date of receipt by the Secretariat of the United Nationsof the treaty or international agreement registered shall bedeemed to be the date of registration, provided that the date ofregistration of a treaty or agreement registered ex officio by theUnited Nations shall be the date on which the treaty or agree-ment first came into force between two or more of the partiesthereto.

Article 7

A certificate of registration signed by the Secretary-Generalor his representative shall be issued to the registering party oragency and also, upon request, to any party to the treaty or in-ternational agreement registered.

Article 8

1. The register shall be kept in the English and French lan-guages. The register shall comprise, in respect of each treaty orinternational agreement, a record of:

(a) The serial number given in the order of registration;(b) The title given to the instrument by the parties;

(c) The names of the parties between whom it was con-cluded ;

(d) The dates of signature, ratification or acceptance, ex-change of ratification, accession, and entry into force ;

(e) The duration;

C/) The language or languages in which it was drawn up;

(g) The name of the party or specialized agency which reg-isters the instrument and the date of such registration;

(h) Particulars of publication in the treaty series of theUnited Nations.

2. Such information shall also be included in the register inregard to the statements registered under article 2 of theseregulations.

3. The texts registered shall be marked "ne varietur" by theSecretary-General or his representative, and shall remain in thecustody of the Secretariat.

Article 9

The Secretary-General, or his representative, shall issue cer-tified extracts from the register at the request of any Memberof the United Nations or any party to the treaty or internationalagreement concerned. In other cases he may issue such extractsat his discretion.

a Adopted by General Assembly resolution 97 (I) of 14 De-cember 1946 and amended by General Assembly resolutions364 B (IV) of 1 December 1949 and 482 (V) of 12 December1950.

194


PART TWO

FILING AND RECORDING

Article 10The Secretariat shall file and record treaties and international

agreements, other than those subject to registration under ar-ticle 1 of these regulations, if they fall in the following cate-gories :

(a) Treaties or international agreements entered into by theUnited Nations or by one or more of the specialized agencies;

(b) Treaties or international agreements transmitted by aMember of the United Nations which were entered into beforethe coming into force of the Charter, but which were not in-cluded in the treaty series of the League of Nations;

(c) Treaties or international agreements transmitted by aparty not a Member of the United Nations which were enteredinto before or after the coming into force of the Charter whichwere not included in the treaty series of the League of Nations,provided, however, that this paragraph shall be applied withfull regard to the provisions of the resolution of the GeneralAssembly of 10 February 1946 set forth in the Annex to theseregulations.b

Article 11The provisions of articles 2, 5, and 8 of these regulations shall

apply, mutatis mutandis, to all treaties and international agree-ments filed and recorded under article 10 of these regulations.

b Not reproduced here.

PART THREE

PUBLICATION

Article 121. The Secretariat shall publish as soon as possible in a single

series every treaty or international agreement which is regis-tered, or filed and recorded, in the original language or lan-guages, followed by a translation in English and in French.The certified statements referred to in article 2 of these regu-lations shall be published in the same manner.

2. The Secretariat shall, when publishing a treaty or agree-ment under paragraph 1 of this article, include the followinginformation; the serial number in order of registration orrecording; the date of registration or recording; the name ofthe party or specialized agency which registered it or trans-mitted it for filing; and in respect of each party the date onwhich it has come into force and the method whereby it hascome into force.

Article 13The Secretariat shall publish every month a statement of the

treaties and international agreements registered, or filed andrecorded, during the preceding month, giving the dates andnumbers of registration and recording.

Article 14The Secretariat shall send to all Members of the United Na-

tions the series referred to in article 12 and the monthly state-ment referred to in article 13 of these regulations.

CHECK LIST OF DOCUMENTS REFERRED TO IN THIS VOLUME

Document

A/925

A/1316

A/1372

A/18^8

A/3859

A/4169

A/4425

A/4796 andAdd.1-8

A/4843

A/5209

A/CN.4/19

A/CN.4/23A/CN.4/41

and Corr.l

A/CN.4/43

A/CN.4/54and Corr.l

Title

Report of the International Law Commission covering the work of itsfirst session (12 April-9 June 1949)

Report of the International Law Commission covering the work of itssecond session (5 June-29 July 1950)

Report of the Secretary-General concerning reservations to multilateralconventions

Report of the International Law Commission covering the work of itsthird session (16 May-27 July 1951)

Report of the International Law Commission covering the work of itseighth session (23 April-4 July 1956)

Report of the International Law Commission covering the work of itstenth session (28 April-4 July 1958)

Report of the International Law Commission covering the work of itseleventh session (20 April-26 June 1959)

Report of the International Law Commission covering the work of itstwelfth session (25 April-1 July 1960)

Future work in the field of the codification and progressive developmentof international law: observations by Governments

Report of the International Law Commission covering the work of itsthirteenth session (1 May-7 July 1961)

Report of the International Law Commission covering the work of itsfourteenth session (24 April-29 June 1962)

Replies from Governments to questionnaires of the International LawCommission concerning the law of treaties

Report by Mr. J. L. Brierly, Special Rapporteur, on the law of treatiesReport by Mr. J. L. Brierly, Special Rapporteur, on reservations to mul-

tilateral conventions

Second report by Mr. J. L. Brierly, Special Rapporteur, on the law oftreaties

Third report by Mr. J. L. Brierly, Special Rapporteur, on the law oftreaties

196

Observations and references

Official Records of the Gen-eral Assembly, Fourth Ses-sion, Supplement No. 10;also published in the Year-book of the InternationalLaw Commission, 1949, pp.277 et seq.

Ibid., Fifth Session, Supple-ment No. 12; also publishedin the Yearbook of the In-ternational Law Commission,1950, vol. II, pp. 364 et seq.

Ibid., Fifth Session, Annexes,vol. II, agenda item 56

Ibid., Sixth Session, Supple-ment No. 9; also publishedin the Yearbook of the Inter-national Law Commission,1951, vol. II, pp. 123 et seq.

Ibid., Eleventh Session, Sup-plement No. 9; also pub-lished in the Yearbook ofthe International Lazv Com-mission, 1956, vol. II, pp.253-302

Ibid., Thirteenth Session, Sup-plement No. 9: also pub*lished in the Yearbook ofthe International Law Com-mission, 1958, vol. II, pp78-110

Ibid., Fourteenth Session, Sup-plement Aro. 9; also pub-lished in the Yearbook ofthe International Law Com-mission, 1959, vol. II

Ibid., Fifteenth Session, Sup-plement No. 9; also pub-lished in the Yearbook ofthe International Lazv Com-mission, 1960, vol. II

Ibid., Sixteenth Sessicm, An-nexes, agenda item 70

Ibid., Sixteenth Session, Sup-plement No. 9; also pub-lished in the Yearbook ofthe International Law Com-mission, 1961, vol. II, pp.88-129

Ibid., Seventeenth Session,Supplement No. 9; alsopublished in this volume,pp. 157-195

Printed in the Yearbook ofthe International Law Com-mission, 1950, vol. II, pp.196-221

Ibid., pp. 222-242Printed in the Yearbook of the

International Lazv Commis-sion, 1951, vol. II, pp. 1-17

Ibid., pp. 70-73

Printed in the Yearbook of theInternational Law Commis-sion, 1952, vol. II, pp. 50-56

Check list of documents referred to in this volume 197Document Title

A/CN.4/61/Add.l Addendum to second report by Mr. J. P. A. Francois, Special Rapporteur[on the law of the sea]

A/CN.4/63 Report by Mr. H. Lauterpacht, Special Rapporteur, on the law of treaties

A/CN.4/77 Third report by Mr. J. P. A. Francois, Special Rapporteur [on the lawof the sea]

A/CN.4/87 Second report by Mr. H. Lauterpacht, Special Rapporteur, on the lawof treaties

A/CN.4/93 Amendments proposed by Mr. J. P. A. Francois, Special Rapporteur,to the provisional draft articles adopted by the International LawCommission at its sixth session concerning the regime of the territorialsea

A/CN.4/99 Comments by Governments on the provisional articles concerning theandAdd.1-9 regime of the high seas and the draft articles on the regime of the

territorial sea adopted by the International Law Commission at itsseventh session in 1955

A/CN.4/101 [First] Report by Mr. G. G. Fitzmaurice, Special Rapporteur, on thelaw of treaties

A/CN.4/107 Second report by Mr. G. G. Fitzmaurice, Special Rapporteur, on thelaw of treaties

A/CN.4/115 Third report by Mr. G. G. Fitzmaurice, Special Rapporteur, on the lawof treaties

A/CN.4/120 Fourth report by Sir Gerald Fitzmaurice, Special Rapporteur, on the lawof treaties

A/CN.4/124 Report by Mr. Yuen-li Liang, Secretary of the International Law Com-mission, on the proceedings of the Fourth Meeting of the Inter-American Council of Jurists

A/CN.4/130 Fifth report by Sir Gerald Fitzmaurice, Special Rapporteur, on the lawof treaties

A/CN.4/139 Report on the fourth session of the Asian-African Legal ConsultativeCommittee (Tokyo, 1961) by Mr. F. V. Garcia Amador, observer forthe International Law Commission

A/CN.4/143 Juridical regime of historic waters, including historic bays: study pre-pared by the Secretariat

A/CN.4/144 First report on the law of treaties, with addendum, by Sir Humphreyand Add.l Waldock, Special Rapporteur

A/CN.4/145 Working: paper prepared by the Secretariat concerning future work in thefield of the codification and progressive development of international law

A/CN.4/146 Report on the fifth session of the Asian-African Legal ConsultativeCommittee (Rangoon, 1962) by Mr. Radhabinod Pal, observer for theInternational Law Commission

A/CN.4/L.9 Memorandum submitted by Mr. Gilberto Amado concerning reservationsand Corr.l to multilateral conventions

A/CN.4/L.14 Memorandum submitted by Mr. Georges Scelle concerning reservationsto multilateral treaties

Observations and references

French text in the Yearbookof the International LawCommission, 1953, vol. II,pp. 76-79






Ibid., pp. 104-128





Ibid., pp. 69-107


Printed in this volume, pp.1-26

Printed in this volume, pp.27-83

thisPrinted in84-100

Printed152-154

in this

volume,

volume,

pp.

pp.


French text ibid., pp. 23-26

NOTE : For the summary records of thesee:

Yearbook of tlte International LawYearbook of the International LawYearbook of the International LawYearbook of the International LawYearbook of the International LawYearbook of the International LawYearbook of the International LawYearbook of the International LawYearbook of the International LawYearbook of the International LawYearbook of th-e International LawYearbook of the International LawYearbook of the International LawYearbook of the International Law

Commissions's meetings referred to in this volume,

Commission,Commission,Commission,Commission,Commission,Commission,Commission,Commission,Commission,Commission,Commission,Commission,Commission,Commission,

1949, vol.1950, vol.1951, vol.1952, vol.1953, vol.1954, vol.1955, vol.1956, vol.1957, vol.195S, vol.1959, vol.1960, vol.1961, vol.1962, vol.

1st39th82nd

I, 135thI, 184thI, 241stI, 282ndI, 331stI, 382ndI, 431stI, 479thI, 526thI, 580thI, 628th

to 38thto 81stto 134thto 183rdto 240thto 281stto 330thto 381stto 430thto 478thto 525thto 579thto 627thto 672nd

meetingsmeetingsmeetingsmeetingsmeetingsmeetingsmeetingsmeetingsmeeitngsmeetingsmeetingsmeetingsmeetingsmeetings

W H E R E T O B U Y U N I T E D N A T I O N S

A N D T H E P U B L I C A T I O N S O F T H E I N T E R N A T I O N A L

P U B L I C A T I O N S

C O U R T O F J U S T I C E

A F R I C ACAMEROON:LIBRAIRIE DU PEUPLE AFRICAINLa Gerante, B. P. 1197, Yaounde.DIFFUSION INTERNATIONALE CAMEROUNAISEDU LIVRE ET DE LA PRESSE, Sangmelima.CONGO (Leopoldville):INSTITUT POLITIQUE CONGOLAISB. P. 2307, Leopoldville.ETHIOPIA: INTERNATIONAL PRESS AGENCYP. O. Box 120, Addis Ababa.GHANA: UNIVERSITY BOOKSHOPUniversity College of Ghana, Legon, Accra.KENYA: THE E.S.A. BOOKSHOP, Box 30167, Nairobi.MOROCCO: CENTRE DE DIFFUSION DOCUMEN-TAIRE DU B.E.P.I. 8, rue Michaux-Bellaire, Robot.

SOUTH AFRICA: VAN SCHAIK'S BOOK-STORE (PTY) LTD.Church Street, Box 724, Pretoria.SOUTHERN RHODESIA:THE BOOK CENTRE, First Street, Salisbury.UNITED ARAB REPUBLIC: LIBRAIRIE"LA RENAISSANCE DEGYPTE"9 Sh. Adly Pasha, Cairo.

A S I ABURMA: CURATOR, GOVT. BOOK DEPOT, Rangoon.CAMBODIA: ENTREPRISE KHMERE DE LIBRAIRIEImprimerie & Papeterie Sari, Phnom-Penh.CEYLON: LAKE HOUSE BOOKSHOPAssoc. Newspapers of Ceylon, P. O. Box 244, Colombo.CHINA:

THE WORLD BOOK COMPANY, LTD.99 Chung King Road, 1st Section, Toipeh, Taiwan.THE COMMERCIAL PRESS, LTD.211 Honan Road, Shanghai.HONG KONG: THE SW1NDON BOOK COMPANY25 Nathan Road, Kowloon.INDIA:ORIENT LONGMANSCalcutta, Bombay, Madras, New Delhiand Hyderabad.OXFORD BOOK & STATIONERY COMPANYNew Delhi and Calcutta.P. VARADACHARY & COMPANY, Madras.INDONESIA:PEMBANGUNAN, LTD., Gunung Sahari 84, Djakarta.JAPAN: MARUZEN COMPANY, LTD.6 Tori-Nichome, Nihonbashi, Tokyo.KOREA, REPUBLIC OF:EUL-YOO PUBLISHING CO., LTD.5, 2-KA, Chongno, Seoul.PAKISTAN:THE PAKISTAN CO-OPERATIVE BOOK SOCIETYDacca, East Pakistan.PUBLISHERS UNITED. LTD., Lahore.THOMAS & THOMAS, Karachi.PHILIPPINES:ALEMAR'S BOOK STORE, 769 Rizal Avenue, Manila.POPULAR BOOKSTORE, 1573 Doroteo Jose, Manila.SINGAPORE:THE CITY BOOK STORE, LTD., Collyer Quay.THAILAND:PRAMUAN MIT, LTD.55 Chakrawat Road, Wat Tuk, Bangkok.NIBONDH & CO., LTD.New Road, Sikak Phya Sri, Bangkok.SUKSAPAN PANITMansion 9, Rajadamnem Avenue, Bangkok.VIET-NAM, REPUBLIC OF:LIBRAIRIE-PAPETERIE XUAN THU185, rue Tu-do, B. P. 283, Saigon.

EUROPEAUSTRIA:

GEROLD & COMPANY, Graben 31, Wien, I.B. WULLERSTORFFMarkus Sittikusstrasse 10, SalzburgGEORG FROMME & CO., Spengergasse 39, Wien, V.

BELGIUM: AGENCE ET MESSAGERIESDE LA PRESSE, S. A.14-22, rue du Persil, Bruxelles.BULGARIA:RAZNO'fZNOS, 1, Tzar Assen, Sofia.CYPRUS: PAN PUBLISHING HOUSE10 Alexander the Great Street, Strovolos.CZECHOSLOVAKIA:ARTIA LTD., 30 ve Smeckach, Praha, 2.CESKOSLOVENSKY SPISOVATELNarodni Tlfida 9, praha, 1.DENMARK: EJNAR MUNKSGAARD, LTD.N^rregade 6, K^benhavn, K.FINLAND: AKATEEMINEN KIRJAKAUPPA2 Keskuskotu, Helsinki.FRANCE: EDITIONS A. PEDONE13, rue Soufflot, Paris <Ve).GERMANY, FEDERAL REPUBLIC OF:R. EISENSCHMIDTSchwanthaler Str. 59, Frankfurt/Main.ELWERT UND MEURERHauptstrasse 101, Berlin-Schoneberg.ALEXANDER HORNSpiegelgasse 9, Wiesbaden.W. E. SAARBAGHGertrudenstrasse 30, Koln (1).GREECE: KAUFFMANN BOOKSHOP28 Stadion Street, Athens.HUNGARY: KULTURA, P. O. Box 149, Budapest 62.ICELAND: BOKAVERZLUN SIGFUSAREYMI'NDSSONAR H. F.Austurstraeti 18, Reykjavik.IRELAND: STATIONERY OFFICE, Dublin.ITALY: UBRERIA COMMISSIONARIA SANSONIVia Gino Capponi 26, Firenze,and Via Paolo Mercuri 19/B, Roma.

LUXEMBOURG:LIBRAIRIE J. TRAUSCHSCHUMMERPlace du Theatre, Luxembourg.NETHERLANDS: N.V. MARTINUS NIJHOFFLange Voorhout 9, 's-Gravenhage.NORWAY: JOHAN GRUNDT TANUMKarl Johansgate, 41, Oslo.POLAND: PAN, Po+ac Kultury i Nauki, Warszawa.PORTUGAL: LIVRARIA RODRIGUES Y CIA.186 Rua Aurea, Lisboa.ROMANIA: CARTIMEX, Str. Aristide Briand 14-18,P. O. Box 134-135, Bucures/i-SPAIN: LIBRERIA BOSCH11 Ronda Universidad, Barcelona.LIBRERIA MUNDI-PRENSACastello 37, Madrid.SWEDEN:

C. E. FRITZE'S KUNGL. HOVBOKHANDEL A-BFredsgatan 2, Stockholm.SWITZERLAND:LIBRAIRIE PAYOT, S. A., Lausanne, Geneve.HANS RAUNHARDT, Kirchgasse 17, Zurich 1.

TURKEY: LIBRAIRIE HACHETTE469 Istiklal Caddesi, Beyoglu, Istanbul.UNION OF SOVIET SOCIALIST REPUBLICS:MEZHDUNARODNAYA KNYIGASmolenskaya Ploshchad, Moskva.UNITED KINGDOM:H. M. STATIONERY OFFICEP. O. Box 569, London, S.E.I(and HMSO branches in Belfast, Birmingham,Bristol, Cardiff, Edinburgh, Manchester).YUGOSLAVIA:CANKARJEVA ZALOZBA, Ljubljana, Slovenia.DRZAVNO PREDUZE(fEJugoslovenska Knjiga, Terazije 27/11,Beograd.PROSVJETA5, Trg Bratstva i Jedinstva, Zagreb.PROSVETA PUBLISHING HOUSEImport-Export Division, P. O. Box 559,Terazije 16/1, Beograd

LATIN AMERICAARGENTINA: EDITORIAL SUDAMERICANA, S. A.Alsina 500, Buenos Aires.

BOLIVIA: LIBRERIA SELECCIONES, Casilla 972, La Paz.

BRAZIL: LIVRARIA AGIRRua Mexico 98-B, Caixa Postal 3291,Rio de Janeiro.CHILE:EDITORIAL DEL PACIFICO, Ahumada 57, Santiago.LIBRERIA IVENS, Casilla 205, Santiago.COLOMBIA: LIBRERIA BUCHHOLZAv. Jimenez de Quesada 8-40, Bogota.COSTA RICA: IMPRENTA Y LIBRERIA TREJOSApartado 1313, San Jose.CUBA: LA CASA BELGA, O'Reilly 455, La Habana.DOMINICAN REPUBLIC: LIBRERIA DOMINICANAMercedes 49, Santo Domingo.ECUADOR:LIBRERIA CIENTIFICA, Casilla 362, Guayaquil.EL SALVADOR: MANUEL NAVAS Y CIA.la. Avenida sur 37, San Salvador.GUATEMALA:SOCIEDAD ECONOMICA-FINANCIERA6a. Av. 14-33, Guatemala City.

HAITI: LIBRAIRIE "A LA CARAVELLE"Port-au-Prince.HONDURAS:LIBRERIA PANAMERICANA, Tegucigalpa.MEXICO: EDITORIAL HERMES, S. A.Ignacio Mariscal 41, Mexico, D. F.PANAMA: JOSE MENENDEZAgencia Internacional de Publicaciones,Apartado 2052, Av. 8A, sur 21-58, Panama.PARAGUAY:AGENCIA DE LIBRERIAS DE SALVADOR NIZZACalle Pte. Franco No. 39-43, Asunci6n.PERU: LIBRERIA INTERNACIONALDEL PERU, S. A., Casilla 1417, Lima.URUGUAY: REPRESENTACION DE EDITORIALES,

PROF. H. D'ELIAPlaza Cagancha 1342, 1° piso, Montevideo.VENEZUELA: LIBRERIA DEL ESTEAv. Miranda, No. 52, Edf. Galipan, Caracas.

MIDDLE EASTIRAQ: MACKENZIE'S BOOKSHOP, Baghdad.ISRAEL: BLUMSTEIN'S BOOKSTORES35 Allenby Rd. and 48 Nachlat Benjamin St.,Tel Aviv.JORDAN: JOSEPH I. BAHOUS & CO.Dar-ul-Kutub, Box 66, Amman.LEBANON:

KHAYAT'S COLLEGE BOOK COOPERATIVE92-94, rue Bliss, Beirut.

NORTH AMERICACANADA: THE QUEEN'S PRINTEROttawa, Ontario.UNITED STATES OF AMERICA: SALES SECTION,UNITED NATIONS, New York.

OCEANIAAUSTRALIA:

WEA BOOKROOM, University, Adelaide, S.A.UNIVERSITY BOOKSHOP, St. Lucia, Brisbane, Qld.THE EDUCATIONAL AND TECHNICAL BOOK AGENCYParap Shopping Centre, Darwin, N.T.COLLINS BOOK DEPOT PTY. LTD.Monash University, Wellington Road, Clayton, Vic.MELBOURNE CO-OPERATIVE BOOKSHOP LIMITED10 Bowen Street, Melbourne C.I, Vic.COLLINS BOOK DEPOT PTY. LTD.363 Swanston Street, Melbourne, Vic.THE UNIVERSITY BOOKSHOP, Nedlands, W.A.UNIVERSITY BOOKROOMUniversity of Melbourne, Parkville N.2, Vic.UNIVERSITY CO-OPERATIVE BOOKSHOP LIMITEDManning Road, University of Sydney, N.S.W.NEW ZEALAND:

GOVERNMENT PRINTING OFFICEPrivate Bag, Wellington(and Government Bookshops in Auckland,Christchurch and Dunedin)

Orders and inquiries from[63E1]

countriet where sales agencies have not yet been established may be sent to: Sales Section, United Nations, New York, U.S.A., or to SalesSection, United Nations, Palais des Nations, Geneva, Switzerland.

Printed in U.S.A.10077—March 1964—2,025

Price: $U.S. 2.50 (or equivalent in other currencies) United Nations publicationSales No.: 62.V.5

A/CN.4/SER.A/1962/Add.l

Yearbook of the International Law Commission 1962 Volume II

Documents

Transcript of Yearbook of the International Law Commission 1962 Volume II