Article 52

Declaration on the prohibition of military, political or economic coercion in the conclusion of treaties

The United Nations Conference on the Law of Treaties,

Upholding the principle that every treaty in force is binding upon the parties to it and must be performed by them in good faith,

Rea rming the principle of the sovereign equality of States,

Convinced that States must have complete freedom in performing any act relating to the conclusion of a treaty,

Deploring the fact that in the past States have sometimes been forced to conclude treaties under pressure exerted in various forms by other States,

Desiring to ensure that in the future no such pressure will be exerted in any form by any State in connexion with the conclusion of a treaty,

1.Solemnly condemns the threat or use of pressure in any form, whether military, political, or economic, by any State, in order to coerce another State to perform any act relating to the conclusion of a treaty in violation of the principles of the sovereign equality of States and freedom of consent,

2.Decides that the present Declaration shall form part of the Final Act of the Conference on the Law of Treaties.

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Materials:

Proposal by the Netherlands: OR 1968 CoW 328 f, para. 1.

Minutes: OR 1968 CoW 328 ; OR 1969 Plenary 91 , 100 , 168 f.

Vienna Conference Vote: 102:0:4

Selected Literature (in addition to the literature mentioned in Article 52, q.v.):

G. Bastid-Burdeau, Déclaration sur l’interdiction de la contrainte militaire, politique ou économique lors de la conclusion des traités, in: Corten/Klein (eds.) 2931 .

The basis of this commentary was prepared by Alison Wiebalck.

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	CONTENTS
		Paras.
A. History .................................................................................................		1
B. Interpretation of Declaration ........................................................		2
1.	Scope ................................................................................................	2
2.	Preamble ...........................................................................................	4
3.	Operational Part ...............................................................................	5

C. Relationship to Other Provisions	................................................... 10
D. Appreciation ........................................................................................	11
A. HISTORY
At the 1968 Vienna Conference there was no consensus on the definition		1
of “force” in Article 52 (q.v., N. 3). In particular, a 19-State amendment
wished to include political and economic pressure in the notion of “threat
or use of force”. When the debate became too heated, the Dutch delegation
proposed that any decision or amendments thereto be deferred in favour
of informal consultations with a view to formulating a declaration; it
was hoped that this would facilitate	a generally acceptable solution.1

The subsequent draft declaration was introduced by the Netherlands and adopted—as a compromise in exchange for the withdrawal of the 19-State amendment2—without a formal vote.3 In 1969 and after further discussion, the Declaration was adopted by 102 votes to none, with four abstentions.4 Together with the Resolution (Article 52—Resolution, q.v.), it was annexed to the Final Act of the Vienna Conference (q.v.).

1	OR 1968 CoW 328 f, paras. 1 f.
2	See the statements by the delegations of Afghanistan (Tabibi), OR 1969 Plenary 92,
	para. 81, and 93, para. 5; Tanzania, ibid. 91, para. 71; and Brazil, ibid. 101, para. 11
	(“compromise text”).

3OR 1968 CoW 328 f, para. 1. In fact, the text of the draft declaration was the outcome of informal consultations with various groups of States; see the explanations by Riphagen

of the Dutch delegation, ibid. 329, para. 2. 4 OR 1969 Plenary 100, para. 13.

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B. INTERPRETATION OF DECLARATION

1. Scope

2The Declaration was introduced to “supplement” Article 52 (N. 1).5 It states the principle that not only military but also economic and political pressure, or the threat thereof, may not be used to coerce a State to conclude a treaty in violation of the sovereign equality of States and freedom of consent.

3The Declaration is itself a legally non-binding instrument.6 Apart from its exhorting function, the significance of the Declaration lies in its role as an authentic means of interpretation of Article 52 within the meaning of Article 31, subpara. 2(b) (q.v., 19).7 As an “instrument related to the [Convention]” within the meaning of this provision and in view of the virtually unanimous adoption at the Conference (N. 1), the Declaration will in any interpretation of Article 52 form part of the context of Article 52. By choosing the form of a declaration (rather than of a resolution), the Conference wished to demonstrate the importance it attached to the document.8

2. Preamble

4The Declaration’s Preamble, issued by the United Nations Conference on the Law of Treaties in 1969 (N. 1), enjoys in principle the same attributes as the Convention’s Preamble (q.v., N. 1–2). The various preambular paragraphs may be assessed as follows:

–fi rst preambular para.: upholding the principle that every treaty in force is binding upon the parties to it and must be performed by them in good faith. This formulation is taken verbatim from Article 26 (q.v.) and elements can also be found in the Convention’s third preambular para. (Preamble, N. 10);

–second preambular para.: rea rming the principle of the sovereign equality of States. Mention of the sovereign equality of States can be found in the Convention’s sixth preambular para. (Preamble, N. 13), the principle going back to Article 2, para. 1 of the UN Charter;9

5 Statement by the Cypriot delegation, OR 1969 Plenary 91, para. 73.

6 Albeit dressed in “quasi-legal” form, Blix/Emerson 8, 315 f; Perrin, Droit international public 249 f; Caflisch, GYBIL 35 (1992) 35 (1992) 74.

7 Ress, Festschrift Doehring 815, refers here to Article 31, subpara. 2(a) (q.v., N. 18).

8Hence, in the first operational para., it solemnly condemns the various forms of pressure.

9See Fassbender/Bleckmann, Article 2(1), in: Simma (ed.), Charter of the United Nations N. 28 .

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–third preambular para.: convinced that States must have complete freedom in performing any act relating to the conclusion of a treaty. The principle of free consent is not enshrined in the Convention. Derived directly from the principle of the sovereign equality of States, it is however mentioned in the Convention’s third preambular para. (Preamble, N. 10). Moreover, the principle of free consent also follows from Articles 1, 2, subpara. 1(a), 6 and 11 of the Convention (q.v.);

–fourth preambular para.: deploring the fact that in the past States have sometimes been forced to conclude treaties under pressure exerted in various forms by other States. Interestingly, there is no express reference at all in the Declaration to Article 52. The link with this provision is, however, clearly demonstrated by the formulations employed in this and the next preambular paragraphs, as well as in the first operational paragraph (N. 5). The formulation here reflects statements at the Conference deploring treaties which in the past were concluded under pressure;10

–fifth preambular para.: desiring to ensure that in the future no such pressure will be exerted in any form by any State in connexion with the conclusion of a treaty. The reference to “pressure . . . in any form”, goes beyond the notion of “force” within the meaning of Article 52 (q.v., N. 6–10). These words are reiterated in the first operational paragraph (N. 5) and are obviously intended to include also political and economic force. As such, they no longer enjoy the binding force of Article 52 (q.v., N. 26), either qua contractual obligation or qua customary law (N. 6). In turn, this explains why the Conference could only desire this preambular paragraph.

3.Operational Part

The Declaration in para. 1 of its operational part solemnly condemns the	5
threat or use of pressure in any form, whether military, political, or
economic, by any State, in order to coerce another State to perform
any act relating to the conclusion of a treaty. Para. 1 di ers from Article
52 in two respects: (i) it refers to pressure, whereas Article 52 employs
the term “force” (q.v., N. 6–10); and (ii) Article 52 encompasses solely
the threat or use of military force, whereas para. 1 also refers to political
or economic pressure.
While Article 52 is declaratory of customary law, it is doubtful whether a	6
binding (customary) rule prohibits political or economic pressure.11 This

explains why the Declaration could not (as in Article 52) declare such pressure void, but only condemn it.12 On the other hand, the treaty’s

10See the statements in Vienna by the delegations of China, OR 1968 CoW 272, para. 48 (“for over a hundred years China had been bound by treaties procured by the threat or use of force”); Iraq, ibid. para. 53; Cuba, ibid. 275, para. 13; and Hungary, ibid. 282, para. 22.

11Shaw, International Law 664 (“[t]he application of political or economic pressure to secure the consent of a treaty may not be contrary to international law”).

12Statements in Vienna by the delegations of the Netherlands (Riphagen), OR 1968 CoW 275, para. 21; and Argentina, ibid. 280, para. 68.

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“conclusion” in Article 52 (q.v., N. 11–15) corresponds with the notion in the Declaration of any act relating to the conclusion of a treaty.

Brosche has argued that, by adopting “pressure” as a general term as opposed to “force”, the Vienna Conference was admitting (and confirming) that “force” was to be understood in a narrower sense.13

7The Declaration’s lack of binding force (N. 11) cannot in principle exclude that the notion of military, political and economic pressure may in the practice of States and the UN organs may eventually attract its own interpretation and, possibly, become binding.14

Various delegations considered at the Vienna Conference that, if obligations were to be assumed in good faith, there must be no threat whatsoever of force at the time of the conclusion of those obligations.15 Economic pressure was regarded as particularly onerous.16

8The Declaration condemns in particular the threat or use of pressure which is in violation of the principles of the sovereign equality of States and freedom of consent.17 The wording di ers from that of Article 52 (q.v., N. 11), where the threat or use of force is “in violation of the principles of international law embodied in the Charter of the United Nations”. Here, the Declaration again stands on solid legal ground, since the equal status of States in treaty relations, based on Article 2, para. 1 of the UN Charter, is indubitably part of lex lata.18

The Court in the Fisheries Jurisdiction (UK v. Iceland) Case echoed the words of the Declaration when holding that the instruments “were freely negotiated by the interested parties on the basis of perfect equality and freedom of decision on both sides”.19

13Zwang 189.

14See Villiger, Manual N. 188-191; also the statements in Vienna by the delegations of Afghanistan (Tabibi), OR 1969 Plenary 93, para. 5; and Japan (Tsuruoka), ibid. 101, para. 10 (“[w]hat was really needed was the will and determination on the part of all States to carry out that obligation”); see also C. Murphy, Economic Duress and Unequal Treaties, Virginia JIL 11 (1970) 61.

15See the statements in Vienna by the delegations of the Democratic Republic of Congo, OR 1969 Plenary 100, para. 5; and Iraq, OR 1968 CoW 272, para. 52 (“how could a treaty be performed in good faith if it had been imposed upon the State by force?”).

16Statements in Vienna by the delegations of Syria, OR 1968 CoW 274, para. 5; Cuba, ibid. 275, para. 14; Mongolia, ibid. 277, para. 41 (”economic and political [coercion were] just as dangerous and perhaps more frequent than resort to armed force”); and the Philippines, ibid. 287, para. 68 (“[e]conomic pressure could as e ectively induce consent”).

17See Fassbender/Bleckmann, Article 2(1), in: Simma (ed.), Charter of the United Nations N. 28 .

18Lachs, Recueil Guggenheim 393.

19ICJ Reports 1973 14, para 24 (italics added).

ZACHARIAS

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According to para. 2 of the operational part, in 1969 the Vienna Confer-	9
ence decided that the present Declaration should form part of the Final
Act of the Conference on the Law of Treaties (q.v.).
C. RELATIONSHIP TO OTHER PROVISIONS
The Declaration was accepted as a compromise and in exchange for the	10
withdrawal of the 19-State amendment to Article 52 (N. 1). Thus, the
Declaration, serving as an authentic means of interpretation (N. 3) of Article
52, restrains rather than expands the meaning to be attributed to the word
“force” in Article 52 (q.v., N. 6–10). Attached to the Declaration is the
Resolution Relating to the Declaration on the Prohibition of Military, Political
or Economic Coercion in the Conclusion of Treaties (Article 52—Resolution,
q.v.).
D. APPRECIATION
Modest as the Declaration may appear, it saved the adoption of Article 52	11
and, possibly, of the Convention. Promoted in terms of its significance
for developing countries and as a valuable instrument to ensure the wid-
est dissemination of the principle embodied in Article 52, the importance

of the Declaration today lies in its relevance for the interpretation of Article 52.20

20Statements in Vienna by the delegations of Afghanistan, OR 1969 Plenary 92, para. 81; and Romania, ibid. 100 f, para. 7.

ZACHARIAS