The United Nations Conference on the Law of Treaties,
Considering that under the terms of paragraph 7 of the Annex of the Vienna Convention on the Law of Treaties, the expenses of any conciliation commission that may be set up under Article 66 of the Convention shall be borne by the United Nations.
Requests the General Assembly of the United Nations to take note of and approve the provisions of paragraph 7 of the Annex.
Materials: see the materials mentioned in Article 66.
B. Interpretation ...........................................................of Resolution
2
A.HISTORY
1 The Resolution was adopted at the 1969 Vienna Conference as part of a package deal together with the Annex to Article 66 and in particular its para. 7 (q.v., N. 1, 19).1 The Resolution goes back to a proposal in Vienna in 1969 by the Swiss delegation which expressed concern about the costs of conciliation.2
B.INTERPRETATION OF RESOLUTION
2The Resolution reiterates the terms of paragraph 7 of the Annex (q.v., N. 19), according to which the expenses of any conciliation commission that may be set up under Article 66 of the Convention shall be borne by the United Nations. Accordingly, the Resolution requests the General
Assembly of the United Nations to take note of and approve the provisions of paragraph 7 of the Annex. The General Assembly took note and approved thereof in 1969.3
1 See the statement by Elias of the Nigerian delegation, OR 1969 Plenary 189, para. 30. 2 Statement by Bindschedler of the Swiss delegation, OR 1969 CoW 257, para. 29. See the
critical reply by the then USSR delegation, ibid. 303, para. 45 (“if a dispute arose between two States, it was for those two States to pay the expenses”). Also Blix of the Swedish delegation, ibid. 273, para. 51 (“the cost of most arbitration procedures was certainly far less than that of a modern fighter plane”); the Mexican delegation, ibid. 275, para. 70 (“[the point of remuneration] was more important than might at first sight appear”).
3GA Res 2534 (XXIV) of 8 December 1969; see Rosenne, Developments 317; Id., ZaöRV 31 (1971) at n. 163. Given the quasi-universal membership of the UN, it is merely of theoretical interest that the costs will also be covered of non-members of the United Nations involved in a dispute submitted to the Conciliation Commission; see the statement in Vienna by the Secretariat of the Conference, OR 1969 Plenary 203, para. 9 (“the terms of the resolution made no distinction between Members and non-members of the United Nations”); Rosenne, Developments ibid.
ZACHARIAS
Article 67
Instruments for declaring invalid, terminating, withdrawing from or suspending the operation of a treaty
1.The notification provided for under Article 65, paragraph 1 must be made in writing.
2.Any act declaring invalid, terminating, withdrawing from or suspending the operation of a treaty pursuant to the provisions of the treaty or of paragraphs 2 or 3 of Article 65 shall be carried out through an instrument communicated to the other parties. If the instrument is not signed by the Head of State, Head of Government or Minister for Foreign A airs, the representative of the State communicating it may be called upon to produce full powers.
Article 67 Instruments ayant pour objet de déclarer la nullité d’un traité, d’y mettre fin, de réaliser le retrait ou de suspendre l’application du traité
1.La notification prévue au paragraphe 1 de l’article 65 doit être faite par écrit.
2.Tout acte déclarant la nullité d’un traité, y mettant fin ou réalisant le retrait ou la suspension de l’application du traité sur la base de ses dispositions ou des paragraphes 2 ou 3 de l’article 65 doit être consigné dans un instrument communiqué aux autres parties. Si l’instrument n’est pas signé par le chef de l’Etat, le chef du gouvernement ou le ministre des a aires étrangères, le représentant de l’Etat qui fait la communication peut être invité à produire ses pleins pouvoirs.
Artikel 67 Urkunden zur Ungültigerklärung oder Beendigung eines Vertrags, zum Rücktritt von einem Vertrag oder zur
Suspendierung eines Vertrags
1.Die Notifikation nach Artikel 65 Absatz 1 bedarf der Schriftform.
2.Eine Handlung, durch die ein Vertrag auf Grund seiner Bestimmungen oder nach Artikel 65 Absatz 2 oder 3 dieses Übereinkommens für ungültig erklärt oder beendet wird, durch die der Rücktritt vom Vertrag erklärt oder dieser suspendiert
838
article
wird, ist durch eine den anderen Vertragsparteien zu übermittelnde Urkunde vorzunehmen. Ist die Urkunde nicht vom Staatsoberhaupt, Regierungschef oder Aussenminister unterzeichnet, so kann der Vertreter des die Urkunde übermittelnden Staates aufgefordert werden, seine Vollmacht vorzulegen.
ILC Draft 1966
Article 63—Instruments for declaring invalid, terminating, withdrawing from or suspending the operation of a treaty
1.Any act declaring invalid, terminating, withdrawing from or suspending the operation of a treaty pursuant to the provisions of the treaty or of paragraphs 2 or 3 of Article 62 shall be carried out through an instrument communicated to the other parties.
2.If the instrument is not signed by the Head of State, Head of Government or Minister for Foreign A airs, the representative of the State communicating it may be called upon to produce full powers.
C. Context ...............................................................................................
7
1.
Relationship to Other Provisions ......................................................
7
2.
Matters Not Dealt With ...................................................................
8
3.
Customary Basis of Article 67 ...........................................................
9
D. Appreciation .......................................................................................
10
A. BACKGROUND
1. Introduction
(see Article 65, N. 1)
2. History
The history of Articles 67 and 68 (q.v., N. 1) commenced in 1963 with draft
1
Articles 23 and 24 of Waldock Report II.1 In its debate in 1963 the ILC
revised the text considerably (e.g., it deleted the requirement in Article 24, subpara. [1][a], that the notification be in writing),2 eventually adopting Article 50 of the ILC Draft 1963.3 In turn, Article 50 became Article 63 of the ILC Draft 1966, corresponding to today’s Article 67, para. 2.4 At the Vienna Conference, two amendments were tabled. One by the Swiss delegation was
1 Waldock Report II, YBILC 1963 II 85 f. 2 YBILC 1963 I 163 , 277 f, 296, 318, 320.
3 ILC Report 1963, YBILC 1963 II 214; introduced at YBILC 1963 I 277, para. 9. 4 ILC Report 1966, YBILC 1966 II 263 f.
ZACHARIAS
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rejected,5 the other by the German delegation, proposing (as in 1963 in the Waldock Report II) the written form of notification, was adopted and now constitutes para. 1 of Article 67 (N. 2).6 Article 67 was adopted by 94 votes to none, with eight abstentions.7
B.INTERPRETATION OF ARTICLE 67
1.Introduction
2Article 67 follows on from Article 65;8 it states further procedural requirements in para. 1 (N. 3) concerning Article 65, para. 1 (q.v., N. 9–13), and in para. 2 (N. 4–6) relating to Article 65, paras. 2 and 3 (q.v., N. 14–21). The various rules in Article 67 are binding on the Convention parties. If States do not comply with them, the various instruments will have no e ect.9 Conversely, States are free to agree to (or to acquiesce in) other procedures (Article 65, N. 22).
2. Notification (Para. 1)
3Para. 1 concerns the notification provided for under Article 65, para. 1
(q.v., N. 9–13). It calls upon a State party to a treaty to communicate to the other party, or parties, any intention to invoke either a defect in its consent to be bound by that treaty, or the ground for impeaching the validity of the treaty, terminating it, withdrawing from it or suspending its operation. According to Article 65, para. 1, notification “shall indicate the measure proposed to be taken with respect to the treaty and the reasons herefor” (q.v., N. 13). It is at this stage that Article 67, para. 1 becomes relevant, requiring that the notification must be made in writing.10 Further details as to the modalities of notification can be found in Article 78 (q.v.).11
5OR 1969 CoW 482, para. 80. It aimed at replacing para. 1 of Article 63 of the 1966 Draft as follows: “[a]ny act executing one of the measures referred to in [today’s article 65], paragraphs 1 and 2, shall be carried out through an instrument communicated to the
other parties”, OR Documents 194, para. 586.
6 T he German amendment was introduced at OR 1969 Plenary 156, para. 29, and adopted at 157, para. 35.
7 Ibid. 157, para. 39.
8 ILC Report 1966, YBILC 1966 II 263, para. 2.
9Question raised by Ago in the ILC, YBILC 1963 I 165 f, para. 44; see also the statement by Waldock, ibid. 167, para. 64 (“obligatory”).
10T he ILC did not consider necessary a requirement as to the written form (N. 1), since “[notification was] usually given in writing”, ILC Report 1966, YBILC 1966 II 214, para. 1.
11Para. 1 is not subject to the requirements in para. 2 (N. 4–6); see the statement in Vienna
ZACHARIAS
instruments for declaring invalid
841
When introducing the requirement of the written form of notification in its amendment in Vienna (N. 1), the German delegation explained: “there had been cases in which oral notifications had created uncertainties and di culties for all the parties concerned . . . The State receiving the notification . . . or the depositary through whom the notification was carried out, [had to] know exactly where they stood”.12 Reference was made here to the declaration by the Norwegian Foreign Minister Ihlen of 1919, later at issue in the Eastern Greenland Case.13
3. Communicating the Act Under Article 65, Paras. 2 and 3 (Para. 2)
Para. 2 provides further specification as to the measure to be applied in the
4
situations in paragraphs 2 or 3 of Article 65 (q.v.). In both cases, the claimant
party will be communicating to the other party or parties an act declaring
invalid, terminating, withdrawing from or suspending the operation of a
treaty under the Convention. The measure may also be applied in accordance
with provisions of a treaty of a similar content, e.g., a clause on denuncia-
tion (instead of Article 65).14
Thus, the words “provisions of a treaty” are of a substantive nature and do not refer to
other procedures which States may wish to follow instead of Article 67, para. 2. Nev-
ertheless, as Sir Humphrey Waldock confirmed in Vienna, it is clear (and implicit
in Article 67) that States may at any time agree to employ other measures in respect
of para. 2.15
The act at issue shall be carried out through an instrument communicated
5
to the other parties. According to the second sentence of para. 2, the act
shall in principle be signed by the Head of State, Head of Government or Minister for Foreign A airs. If it is not signed by one of these persons, the representative of the State communicating it may be called upon to produce full powers (Article 7, q.v.).16 The second sentence is thus confined
by the Expert Consultant, Sir Humphrey Waldock, OR 1968 CoW 445, para. 61 (“[the application of para 2 to Article 67, para. 1] would seem to be inconsistent with the general idea of the procedure provided for in Article [67])”.
12OR 1969 Plenary 156, paras. 32 f. In 1963 the ILC stated that “notification [was] usually given in writing”.
13PCIJ (1933) Series A/B no. 53, 22 .
14Statement in Vienna by the Expert Consultant, Sir Humphrey Waldock, OR 1969 Plenary 445, para. 62.
15“[P]erhaps the proviso ‘unless the treaty otherwise provides’ should have been added to Article [67, para. 2]”, ibid.; also the ILC Report 1966, YBILC 1966 II 214, para. 1.
16“[T]he three mentioned State organs are always competent to denounce international treaties”, Frankowska, Polish YBIL 7 (1975) 307.
ZACHARIAS
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article
to the question of evidence of authority to execute the final act purporting to declare the treaty’s invalidity, termination, etc.17
The formality in para. 2—in particular providing evidence of authority to execute the final act—purports to provide a safeguard for the security of treaties.18 Nevertheless, this aim appears to be defeated in two respects: (i) a closer look at the juxtaposition of the fi rst and second sentence of para. 2 discloses that no signature is required of the “representative of the State communicating it”; (ii) closer comparison of the first and second paragraphs shows that the instrument in para. 2 need not even be in writing.19 It follows that the instrument in para. 2 may also be of an informal nature.20
6While the reference to para. 2 in Article 65 raises no di culty, the reference to para. 3 appears less clear.
Article 65, para. 2 (q.v., N. 15) confirms the close link between the two provisions by referring to Article 67: thus, if no State has filed an objection to the notification in Article 65, para. 1, the State party “making the notification may carry out in the manner provided in Article 67 the measure which it has proposed”. Para. 2 of Article 67 specifies details of this measure (N. 5).21
Conversely, Article 65, para. 3, containing no such reference to Article 67, provides that, if another party files an objection, “the parties shall seek a solution through the means indicated in Article 33 of the Charter of the United Nations” (q.v., N. 19–21). However, the procedure does not end there. If under Article 65, para. 3 no solution can be reached, the procedures in Article 66 (q.v.) will apply. The State party concerned may bring the dispute to arbitration or before the Court in case of a dispute relating to Articles 53 and 64 of the Convention; or in all other cases to a Conciliation Commission (Annex to Article 66, q.v.). It is di cult to imagine how after such a procedure an act according to Article 67, para. 2 may still be necessary.
17ILC Report 1966, YBILC 1966 II 264, para. 3. See also the statement by Waldock in the ILC, YBILC 1966 I/2 160, para. 59; Verdross/Simma N. 838.
18ILC Report 1966, YBILC 1966 II 264, para. 4 (“formal act which diplomatic propriety and legal regularity would seem to require”); the statement in the ILC by Elias, YBILC 1963 I 1965, para. 31 (“a mere declaration on the fl oor of a national legislature . . .
would have no binding e ect”); Aust, Modern Treaty Law 301 f; Gomaa, Suspension 164.
19Contra Capotorti, RC 134 (1971 III) 572.
20See the statement in the ILC by de Luna, YBILC 1966 I/2 112, para. 19 (“very informal methods were used to express the will of the State to denounce or terminate a treaty. A mere note verbale from a Head of Mission or from the Foreign Minister was su cient”); Bedjadoui, ibid. 114, para. 43 (“a treaty had been terminated by a telephone call”); Delbrück/Wolfrum III 728.
21See the statements in Vienna by the Expert Consultant, Sir Humphrey Waldock, OR 1968 CoW 445, para. 61 (“no particular di culty”); and by the Liberian and UK delegations, ibid. 444, para. 53, and 445, para. 57, respectively.
ZACHARIAS
instruments for declaring invalid
843
Indeed, at the Conference in 1969, various delegations expressed uncertainty as to the
connexion between Article 67, para. 2 and Article 65, para. 3,22 though Sir Humphrey
Waldock as Expert Consultant was adamant that the link was necessary.23
This manner of drafting (reference should in fact have been made in Article 67, para. 2
also to Article 66 and the Annex) can be explained by the fact that Articles 65 and 67
with their cross-references were prepared by the ILC at a time when Article 66 (as the
continuation of Article 65, para. 3) did not yet exist. When Article 66 was introduced
on the penultimate day of the Conference (Article 66, N. 1), there was no longer time
to fathom the relationship between Article 67, para. 2 and Article 65, para. 3.
C. CONTEXT
1. Relationship to Other Provisions
Article 67 is closely linked with Article 65 (N. 3, 4). Details as to the notifica-
7
tion in para. 1 (N. 3) and the communication in para. 2 (N. 5) are governed
by Article 78 (q.v.).24
2. Matters Not Dealt With
Article 67 contains no express reference that the parties may agree to employ
8
other procedures, though this is of course implied (N. 4). No time-limit is
stated in respect of para. 2.25
3. Customary Basis of Article 67
Assuming that Article 67 can reflect general customary international law (see
9
Article 65, N. 26–27), this provision, as Article 65, most likely amounted
22See the Liberian delegation, ibid. 444, para. 53 (“paragraph [2] of Article [67] could only apply to paragraph 2 of Article [65]”); Vallat of the UK delegation, ibid. 445, para. 57 (“it would certainly be necessary to communicate instruments pursuant to paragraphs 1 and 2 of Article [65], whereas that was not so evident with respect to paragraph 3”). Verdross/Simma N. 839 f, refer in the context of Article 67, para. 2, only to para. 2 of Article 65.
23“The [ILC] had considered the reference to paragraph 3 justified because, after the procedures referred to in that paragraph had been gone through, it seemed . . . even probable that they might be followed by some act which fell under Article [67]”, OR CoW 1968 445, para. 61. Of course, when the ILC considered the matter, Article 66 did not yet exist.
24ILC Report 1966, YBILC 1966 II 263, para. 2.
25Aust, Modern Treaty Law 302.
ZACHARIAS
844
article
to progressive development upon its adoption in Vienna, but may now be considered as crystallising into customary international law.26
D. APPRECIATION
10Article 67 concerns straightforward procedural matters. However, various weaknesses transpire: (i) the aim of Article 67, which is to ensure stability by introducing a certain formalism in such matters, is defeated in the second sentence of para. 2 which does not exclude informal instruments (N. 5); (ii) the reference in Article 67, para. 2, to Article 65, para. 3, appears imprecisely drafted (N. 4); and (iii) this reference also appears out of place, applying as it does at the end of a complex system of procedures provided for in Articles 65 and 66 and in the Annex to Article 66.
26See the statement in the ILC by Waldock, YBILC 1966 I/2 153, para. 65 (“progressive development”); Gomaa, Suspension 160.
ZACHARIAS
Article 68
Revocation of notifications and instruments provided for in Articles 65 and 67
A notification or instrument provided for in Articles 65 or 67 may be revoked at any time before it takes e ect.
Article 68 Révocation des notifications et des instruments prévus aux articles 65 et 67
Une notification ou un instrument prévus aux articles 65 et 67 peuvent être révoqués
àtout moment avant qu’ils aient pris e et
Artikel 68 Rücknahme von Notifikationen und Urkunden nach den Artikeln 65 und 67
Eine Notifikation oder eine Urkunde nach den Artikeln 65 und 67 kann jederzeit zurückgenommen werden, bevor sie wirksam wird.
ILC Draft 1966
Article 64—Revocation of notifications and instruments provided for in Articles 62 and 63
A notification or instrument provided for in Articles 62 and 63 may be revoked at any time before it takes e ect.
Minutes: OR 1968 CoW 445, 490; OR 1969 Plenary 125, 128 f, 133, 157.
Vienna Conference Vote: 94:0:8
Selected Literature (in addition to the literature mentioned in Article 65):
D. Rouget, Article 68, in: Corten/Klein (eds.) 2469 .
ZACHARIAS
revocation of notifications and instruments
847
CONTENTS
Paras.
A. Background ........................................................................................
1
1.
Introduction (see Article 65, N. 1)
2.
History .............................................................................................
1
B. Interpretation of Article 68 ............................................................
2
C. Context ...............................................................................................
7
1.
Relationship to Other Provisions ......................................................
7
2.
Customary Basis of Article 68 ...........................................................
8
D. Appreciation .......................................................................................
9
A. BACKGROUND
1. Introduction
(see Article 65, N. 1)
2. History
The history of Articles 67 and 68 commenced with Articles 23 and 24 of
1
Waldock Report II in 1963 (Article 67, N. 1).1 Article 24, para. 3 listed the
conditions for revoking a notice of termination, withdrawal or suspension.2
After some debate in 1963, this led to Article 68, para. 2 of the ILC Draft 1963.3 In 1966 the ILC proposed a new and now separate article, leading to Article 64 of the final ILC Draft 1966 which is identical to today’s Article 68.4 No amendment proposals were made in Vienna, and only one State commented on the provision which was adopted by 94 votes to none, with eight abstentions.5
1 Waldock Report II, YBILC 1963 II 85 f.
2 Ibid. 86.
3 ILC Report 1963, YBILC 1963 II 214. For the debate, see YBILC 1963 I 163 , 277 f, 296, 318, and 320.
4ILC Report 1966, YBILC 1966 II 264. For the debate, see YBILC 1966 I/1 95 , 109 , and 133; YBILC 1966 I/2 153 f, 319, and 333.
5Ibid. para. 39. See the observation by the Cameroon delegation, OR 1969 Plenary 157, para. 40, on a matter of translation.
ZACHARIAS
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B. INTERPRETATION OF ARTICLE 68
2Article 68 refers to a notification or instrument provided for in Articles 65 or 67.
The reference to Article 65 relates particularly to the notification in para. 1 (q.v., N. 10–13) and the objection in paras. 2 and 3 (q.v., N. 14–22). Any reference to para. 3 must also include Article 66 (q.v., N. 6). and its Annex (q.v.). The reference to Article 67 relates to the act in para. 2 (q.v., N. 4–6) which the claimant State party will file if and when the other party raises no objection under Article 65, para. 2, or if an objection is raised and one of the means mentioned in Article 65, para. 3 is employed, possibly leading to the procedures in Article 66 and its Annex.
3The main point in Article 68 is that such a notification or instrument may be revoked at any time before it takes e ect. The notification or instrument is thereby recalled or taken back, though no particular form is prescribed herefor.6 Such revocation can be seen as serving pacta sunt servanda in that it confirms the original treaty.7
States are free to choose other forms or procedures of revocation, e.g., attaching a particular condition, or making it subject to a particular time-limit.8
4Revocation is thus only possible: (i) until the other party has received the notification or instrument (which will normally be within a few days); and, cumulatively, (ii) until the other party has started undertaking measures, e.g., initiating domestic legal changes, in view of the imminent termination or suspension of the treaty (which may also happen relatively soon).9 It is irrelevant here whether the claimant State has undertaken any measures. Any other States parties which followed the first State and also gave notice of termination or withdrawal are, under the conditions of Article 68, equally free to revoke their notification or instrument.10
6But see the statement in the ILC by Bartos, YBILC 1966 I/2 154, para. 58 (“an act of revocation must be in solemn form”). See also the ILC Report 1966, YBILC 1966 II 264, para. 2 (“the right to revoke the notice is really implicit in the fact that it is not to become e ective until a certain date”). See also the example of the US notifying Poland of the withdrawal of its denunciation of the 1965 Warsaw Convention for the Unification of Certain Rules Relating to International Transportation by Air, AJIL 60 (1966) 826;
mentioned in Aust, Modern Treaty Law 302 at n. 113.
7See the ILC Report 1966, YBILC 1966 II 264, para. 2 (“the considerations militating in favour of the revocation of notices and instruments of denunciation, termination etc., are so strong that the general rule should admit a general freedom to do so prior to the taking
e ect of the notice or instrument”).
8 See the ILC Report 1966, ibid. 265, para. 2; the ILC Report 1963, YBILC 1966 II 214, para. 3.
9See the statement in the ILC by Waldock, YBILC 1966 I/I 96, para. 56. For Capotorti, RC 134 (1971 III) 571, “taking e ect” implies a treaty’s termination or suspension.
10Statement in the ILC by Waldock, ibid. 52, para. 52. This issue was raised in Article 26, para. 9 of Fitzmaurice Report II, YBILC 1957, 34.
ZACHARIAS
revocation of notifications and instruments
849
Once notification has “taken e ect”, the protection of good faith (N. 5) requires that
the notified State must consent to the revocation in both situations: (i) either it objects
thereto according to para. 3 of Article 65 (q.v., N. 19); (ii) or it raises no objection
within the time-limit according to its para. 2 (q.v., N. 15).
Article 68 e ectively (and e ciently) protects the good faith of the receiving
5
State. Faced with the claimant State’s revocation, it su ces for the receiving
State to demonstrate in reply that it has already taken such measures and
that, therefore, the notification or instrument “has taken e ect” and may no
longer be revoked.11
Even if the notifi cation or instrument “has taken e ect”, it may still be
6
revoked, though now the receiving State party must consent thereto. It may
do so expressly or by acquiescence.
The possibility of subsequent (consensual) revocation makes it possible for the claim-
ant (notifying) party even at a later stage to reconsider its decision to terminate or
suspend the operation of the treaty in view of the subsequent action taken by the
notified party, or if upon second thought it recognises that the measures sought are in
fact non-beneficial.12
C. CONTEXT
1. Relationship to Other Provisions
Article 68 is closely linked with Articles 65 and 67 (N. 2).
7
2. Customary Basis of Article 68
Assuming that Article 68 can reflect general customary international law,
8
it most likely amounted to progressive development upon its adoption in
Vienna, but may now be considered as crystallising into customary interna-
tional law (Article 67, N. 9).
11In the ILC, Verdross wondered whether Article 68 should not read “is received” rather than “takes e ect”, YBILC 1963 I 267, para. 13. Waldock replied “that the words ‘takes e ect’ were correct”, ibid. para. 14.
12Gomaa, Suspension 163.
ZACHARIAS
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article
D. APPRECIATION
9Views are divided as to the relevance of Article 68 for the Convention.13 On the whole, it neatly confirms a further aspect of good faith (N. 5), while leaving the parties much freedom and flexibility to revert, despite notification, to the original treaty regime (N. 6).
13In the ILC, Tunkin considered that Article 24, para. 3 of Waldock Report II (N. 1) “embodied the only rule of significance in the article”, YBILC 1963 I 167, para. 61. Conversely, the ILC Report 1963 referred to Article 68 as containing only “a small point of substance”, YBILC 1963 II 214, para. 3.
ZACHARIAS
Section . Consequences
of the Invalidity, Termination or Suspension of the Operation of a Treaty
Article 69
Consequences of the invalidity of a treaty
1.A treaty the invalidity of which is established under the present Convention is void. The provisions of a void treaty have no legal force.
2.If acts have nevertheless been performed in reliance on such a treaty:
(a)each party may require any other party to establish as far as possible in their mutual relations the position that would have existed if the acts had not been performed;
(b)acts performed in good faith before the invalidity was invoked are not rendered unlawful by reason only of the invalidity of the treaty.
3.In cases falling under Articles 49, 50, 51 or 52, paragraph 2 does not apply with respect to the party to which the fraud, the act of corruption or the coercion is imputable.
4.In the case of the invalidity of a particular State’s consent to be bound by a multilateral treaty, the foregoing rules apply in the relations between that State and the parties to the treaty.
Article 69 Conséquences de la nullité d’un traité
1.Est nul un traité dont la nullité est établie en vertu de la présente Convention. Les dispositions d’un traité nul n’ont pas de force juridique.
2.Si des actes ont néanmoins été accomplis sur la base d’un tel traité:
a)toute partie peut demander à toute autre partie d’établir pour autant que possible dans leurs relations mutuelles la situation qui aurait existé si ces actes n’avaient pas été accomplis;
b)les actes accomplis de bonne foi avant que la nullité ait été invoquée ne sont pas rendus illicites du seul fait de la nullité du traité.
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3.Dans les cas qui relèvent des articles 49, 50, 51 ou 52, le paragraphe 2 ne s’applique pas à l’égard de la partie à laquelle le dol, l’acte de corruption ou la contrainte est imputable.
4.Dans les cas où le consentement d’un Etat déterminé à être lié par un traité multilatéral est vicié, les règles qui précèdent s’appliquent dans les relations entre ledit Etat et les parties au traité.
Artikel 69 Folgen der Ungültigkeit eines Vertrags
1.Ein Vertrag, dessen Ungültigkeit auf Grund dieses Übereinkommens festgestellt wird, ist nichtig. Die Bestimmungen eines nichtigen Vertrags haben keine rechtliche Gültigkeit.
2.Sind jedoch, gestützt auf einen solchen Vertrag, Handlungen vorgenommen worden,
a)so kann jede Vertragspartei von jeder anderen Vertragspartei verlangen, dass diese in ihren gegenseitigen Beziehungen soweit wie möglich die Lage wiederherstellt, die bestanden hätte, wenn die Handlungen nicht vorgenommen worden wären;
b)so werden Handlungen, die vor Geltendmachung der Ungültigkeit in gutem Glauben vorgenommen wurden, nicht schon durch die Ungültigkeit des Vertrags rechtswidrig.
3.In den Fällen des Artikels 49, 50, 51 oder 52 findet Absatz 2 keine Anwendung in bezug auf die Vertragspartei, welcher der Betrug, die Bestechung oder der Zwang zuzurechnen ist.
4.Ist die Zustimmung eines bestimmten Staates, durch einen mehrseitigen Vertrag gebunden zu sein, mit einem Mangel behaftet, so finden die Absätze 1 bis 3 im Verhältnis zwischen diesem Staat und den Vertragsparteien Anwendung.
ILC Draft 1966
Article 66—Consequences of the invalidity of a treaty
1.The provisions of a void treaty have no legal force.
2.If acts have nevertheless been performed in reliance on such a treaty:
ZACHARIAS
consequences of the invalidity of a treaty
855
(a)each party may require any other party to establish as far as possible in their mutual relations the position that would have existed if the acts had not been performed;
(b)acts performed in good faith before the invalidity was invoked are not rendered unlawful by reason only of the invalidity of the treaty.
3.In cases falling under Articles 46, 47, 48 or 49, paragraph 2 does not apply with respect to the party to which the fraud, coercion or corrupt act is imputable.
4.In the case of the invalidity of a particular State’s consent to be bound by a multilateral treaty, the foregoing rules apply in the relations between that State and the parties to the treaty.
Materials:
Waldock Report II: Article 27.
Minutes: YBILC 1963 I 229 , 281 f, 308, 318, 322.
ILC Draft 1963: Article 52.
Waldock Report VI: Article 52.
Minutes: YBILC 1966 I/2 8 , 154 f, 160, 319, 333.
ILC Draft 1966: Article 65.
Minutes: OR 1968 CoW 445 , 490 ; OR 1969 Plenary 125 f.
Vienna Conference Vote: 95:1:1
Selected Literature (in addition to the literature cited in Article 65, q.v.):
Ph. Cahier, Les caractéristiques de la nullité en droit international et tout particulièrement dans la Convention de Vienne sur le droit des traités, RGDIP 76 (1972) 645 ; B. Conforti/ A. Labella, Invalidity and Termination of Treaties: The Role of National Courts, EJIL 1 (1990) 44 ; R.P. Dhokalia, Nullity or Invalidity of Treaties, IJIL 9 (1969) 177 ; J.A. Frowein, Nullity in International Law, EPIL 3 (1997) 743 ; Id. Zum Begri und zu den Folgen der Nichtigkeit von Verträgen im Völkerrecht, in: Festschrift U. Scheuner (1973) 107 ; G. Haraszti, Reflections on the Invalidity of Treaties, in: G. Haraszti (ed.), Questions of International Law (1977) 59 ; Ch. Rozakis, The Conditions of Validity of International Agreements, RHDI 26/27 (1973/74) 221 ; Id., The Law on Invalidity of Treaties, AVR 16 (1974/75) 150 ; J. Verhoeven, Article 69, in: Corten/Klein (eds.) 2481 .
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CONTENTS
Paras.
A. Background ........................................................................................
Situation of Multilateral Treaties (Para. 4) ........................................
21
C. Context ..............................................................................................
22
1.
Relationship to Other Provisions .....................................................
22
2.
Matters Not Dealt With ..................................................................
23
3.
Customary Basis of Article 69 ..........................................................
24
D. Appreciation ......................................................................................
25
A. BACKGROUND
1. Introduction
1 Traditionally, international law distinguished between absolute and relative nullity. In the case of absolute nullity, the treaty was null and void ex tunc as from the outset. However, a distinction was made as to the e ects. In certain cases, e.g., as regards the registration of treaties according to Article 102, para. 2 of the UN Charter, no e ects would arise (Article 80, q.v.). In other cases, the treaty would have been performed until it was declared invalid, and only then would the acts performed in reliance on the treaty also be declared invalid, albeit retroactively. In the case of relative nullity—traditionally in the case of error, fraud and coercion1—the treaty would be declared null and void though not with retroactive e ect: the acts performed would, until then, remain valid (ex nunc).2
1But see Article 51 (q.v., N. 8) on the coercion of a State representative leading to absolute nullity.
2P. Guggenheim, La validité et la nullité des actes juridiques internationaux, RC 74 (1949 I) 195 , 215 . See also J.H.W. Verzijl, La validité et la nullité des actes juridiques interna-
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2. History
Waldock Report II of 1963 contained mainly paras. 1 and 2 of today’s Article
2
69.3 The ensuing discussion in the ILC concentrated on individual grounds
of nullity, in particular jus cogens.4 The ILC Draft 1963, containing the core
elements of paras. 2–4 of today’s Article 69, mentioned good faith for the
first time.5 Seven Governments commented favourably on this draft.6 In 1966
the ILC decided to treat the issue of jus cogens separately (Article 71, N. 1).7
Article 65 of the ILC Draft 1966 largely resembled Article 69.8 Amendments
filed in Vienna were either rejected or referred to the Drafting Committee.9
On the other hand, the Conference took over the second sentence of para.
1 from Article 39 of the ILC Draft 1966 (Article 42, N. 2).10 Article 69 was
adopted by 95 votes to one, with one abstention.11
B. INTERPRETATION OF ARTICLE 69
1. Scope
Article 69 states in para. 1 the rule as to the consequences of the invalidity of
3
a treaty (N. 8–9). Subparas. 2(a) and (b) concern acts performed in reliance
on the treaty (N. 10–19). Para. 3 lists those grounds of invalidity in respect
tionaux, Revue DI 15 (1935) 284 ; A. Verdross, Anfechtbare und nichtige Staatsverträge, ZöR 15 (1935) 289 ; H.W. Baade, Nullity and Avoidance in Public International Law, Indiana LJ 34 (1964) 497 ; R.Y. Jennings, Nullity and E ectiveness in International law, in: Essays in Honour of Lord McNair (1965) 64 .
3YBILC 1963 II 93 f (Article 27). See also Article 15 of Lauterpacht Report I, YBILC 1953 II 155 (“the voidance of contractual agreements whose object is illegal is a general principle of international law”); Article 22 of Fitzmaurice Report III, YBILC 1958 II
28.
4 T he debate is reproduced at YBILC 1963 I 229 . 5 YBILC 1963 II 216 (Article 52).
6 Waldock Report VI (Article 52), YBILC 1966 II 53 . See ibid. 53, the observation by the Swedish Government to the ILC (“problems of great complexity”).
7 T he debate is at YBILC 1966 I/2 8 , 154 f, 160, 319 and 333. 8 YBILC 1966 II 264 (Article 65).
9OR Documents 195, para. 600. Three amendments proposed by Australia, Switzerland and the US concerned para. 1. In respect of subpara. 2(b), the US wished to introduce “acts performed in good faith in reliance upon such provisions” (italics added ); this was rejected at OR 1968 CoW 447, para. 85. Switzerland wished to delete para. 3 (rejected at ibid. 447, para. 86); see also the Bulgarian/Polish amendment on para. 3, aiming at changing the term “imputable” (N. 20). Finally, in para. 4 France wished to exclude restricted multilateral
treaties.
10OR 1968 CoW 481, para. 68.
11OR 1969 Plenary 126, para. 12.
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of which para. 2 does not apply (N. 20). Para. 4 concerns the situation of States parties to a multilateral treaty (N. 21).
In the language of the Convention, the terms invalidity and nullity have the same meaning.12 The term “void treaty” covers all forms of invalidity.13
4Article 69 does not express itself on the grounds of invalidity. These grounds will previously have been established under the present Convention (Article 42, N. 9) and are to be found in Section 2 of Part V,14 i.e.,
–provisions of internal law regarding competence to conclude treaties, as in Article 46 (q.v., N. 11);
–specific restrictions on authority to express the consent of a State, as in Article 47 (q.v., N. 7);
–error, as in Article 48 (q.v., N. 9);
–fraud, as in Article 49 (q.v., N. 6);
–corruption of a representative of a State, as in Article 50 (q.v., N. 7–8);
–coercion of a representative of a State, as in Article 51 (q.v., N. 8–10); and
–coercion of a State by the threat or use of force, as in Article 52 (q.v., N. 13–15).
A further ground of invalidity ( jus cogens) is mentioned in Articles 53 (q.v.). The consequences of such invalidity are dealt with in Article 71 (q.v.).
5Articles 46–52 di erentiate between absolute (automatic) nullity, i.e., where a treaty is without any legal e ect (e.g., in Article 51), and relative nullity, i.e., where the treaty is voidable (e.g., in Article 49). However, no such distinction is made in Article 69 which comes into play at a later stage.15 It proceeds from the assumption that the proceedings in Articles 65–68(q.v.) have been followed and that on whatever grounds the invalidity of the treaty has been established (N. 9).
6Whether or not a State’s conduct after invalidity within the meaning of Articles 46–50 bars it from relying on invalidity will be assessed in the light of Article 45 (q.v.). Only where the party is not excluded from doing so, does the question arise whether para. 2 of Article 69, in particular its subpara. (b), is relevant (N. 17–19).
7Finally, the parties are masters of their own treaties and may at any time agree—formally or informally—to modify the consequences stated in Article
12See the statement in the ILC by Waldock, YBILC 1966 I/2 9, para. 67.
13See the statement in Vienna by Expert Consultant, Sir Humphrey Waldock, OR 1968 CoW 447, para. 82.
14In Vienna, the Drafting Committee unsuccessfully proposed listing all the articles leading to invalidity in para. 1 of Article 69, OR 1968 CoW 490, para. 20; see the statements by various delegations thereto, ibid. 490 f.
15Cahier, RGDIP 76 (1972) 686.
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69 (N. 13) or even to waive the provision altogether and agree on the continuing validity of the treaty (N. 23).16
2. Invalidity of the Treaty (Para. 1)
At the outset para. 1 states the principle that a treaty the invalidity of which
8
is established under the present Convention is void (N. 4). The treaty will
have no legal e ect.17 So as to leave no doubt as to the consequences, the
second sentence repeats that the provisions of a void treaty have no legal
force.18 Para. 1 thus concerns the treaty itself and its provisions, but not the
acts performed in reliance on the treaty which may well have produced e ects
and are the subject of para. 2.19
The treaty is void ab initio and ex tunc, its nullity extending back to its con-
9
clusion. The date when the ground of invalidity arose or was established, i.e.,
whether upon the treaty’s conclusion or subsequently (with retroactive e ect),
is irrelevant, though it may play a part in respect of any acts performed in
reliance on the treaty.20 These consequences di er from those of termination
which occur ex nunc (Article 70, subpara. 1[b], N. 8).
3. Acts Performed in Reliance on the Treaty (Para. 2)
Para. 2 applies to Articles 46–48(N. 4, 20). It concerns, not the invalidity of
10
the treaty (established after conclusion of the treaty, N. 8–9), but the situa-
tion of acts which have nevertheless been performed in reliance of such a treaty.21 The treaty is always void retroactively and ex tunc (N. 8–9),22the acts may nevertheless have certain e ects. Para. 2 may appear as an exception to para. 1, though strictly speaking it concerns a di erent aspect of invalidity (i.e., the validity of acts as opposed to the invalidity of the treaty).23
16Statement in the ILC by Waldock, YBILC 1966 I/2 15, para. 52 (“both or all the parties might agree to allow certain e ects of acts performed under the treaty to continue”); Article 27, subpara. 1(b) of Waldock Report II, YBILC 1963 II 93, in respect of “acts performed and any rights acquired pursuant to a treaty prior to its avoidance”.
17See the statement in the ILC by Bartos, YBILC 1963 I 230, para. 63.
21T he situation is not infrequent; see the observation by the UK Government to the ILC, Waldock Report VI, YBILC 1966 II 54. Note that if invalidity was established upon conclusion, para. 2 has no role to play, since no acts will have been performed.
22See the statement in the ILC by Waldock, YBILC 1966 I/2 231, para. 81.
23But see the statement in the ILC by its Chairman, Yasseen, ibid. 13, para. 33.
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11a) Restoration of Previous Position (Subpara. 2[a])
According to subpara. 2(a), each party may require any other party to establish as far as possible in their mutual relations the position that would have existed if the acts had not been performed.
12As the treaty is invalid (N. 8–9), it no longer needs to be performed. Without subpara. 2(a) pronouncing itself on the matter, it follows that any acts performed thereupon are in principle void ex tunc, i.e., they have no e ect as from the date of the conclusion of the treaty. According to subpara. 2(a) and in order to comply with invalidity, the situation shall be restored to the status quo ante, i.e., as it would have been if the treaty had not existed and in particular if the acts thereupon had not been performed.24 The parties are to be placed in the position which they would have been in, had the treaty not been concluded.
Here, subpara. 2(a) envisages reversible acts. For instance, a boundary line which had been established erroneously will have to be redrawn. Non-perishable goods which had been exchanged on the basis of the treaty may have to be returned, or loans paid back.
13These consequences are not automatic. A party may require restoration to the status quo ante. Subpara. 2(a) thus o ers considerable flexibility. Parties are free to agree to invalidity ex nunc (rather than ex tunc) and to limit the e ects of invalidity to the period after it was established (rather than back to the conclusion of the treaty) or even to waive invalidity altogether.25 Of course, if a party requires restoration, the other party will be bound by the request.26
In the treaty of 1973 between Germany and then Czechoslovakia, declaring void the 1938 Munich Agreement (Article 51, N. 1), it was agreed that the treaty “[should] not a ect the legal e ects on natural or legal persons of the law as applied in the period between 30 September 1938 and 9 May 1945” and “[should] not a ect the nationality of living or deceased persons ensuing from the legal system of either of the two Contracting Parties”.27
14Subpara. 2(a) thus envisages a fragmentation of treaty relations. The restoration to the status quo ante applies between the party requiring it and the addressees of the request in their mutual relations.
24ILC Report 1966, YBILC 1966 II 265, para. 3; Article 27, para. 1 of Waldock Report II, YBILC 1963 II 93.
25See Cahier, RGDIP 76 (1972) 686.
26T he procedures in Articles 65–68must have been followed (N. 5). But see Cahier, ibid.
27ILM 13 (1974) 19. See Frowein, EPIL 3 (1997) 745 f; Ph. Bretton, Les négociations germano-tchécoslovaques sur l’accord de Munich du 29 septembre 1938, AFDI 19 (1973) 189 .
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Restoration to the status quo ante is not always feasible and is only required as
15
far as possible. “No one could be bound to do the impossible”.28 The previous
position has to be established only insofar as the acts are not irreversible.29 If
the situation has been consummated, restoration is no longer possible.30
Examples of irreversible acts arising under a treaty would be: if a State had been entitled
to fish in the territorial Sea of another State, or had undertaken the transport of goods
for another State, or if certain goods had already been used up.31
There remains a further category of (reversible or irreversible) acts with out-
16
standing claims upon establishment of the invalidity of the treaty. In particular,
one treaty party has complied with its part of the treaty obligation by under-
taking the required acts and is awaiting fulfilment by the other treaty party.
Here, it would contradict good faith to declare these acts void and resort to
the original situation, and subpara. 2(b) comes into play (N. 17–19).
b) Implications of Good Faith (Subpara. 2[b])
One party may have performed an act under the treaty and may be awaiting
17
fulfilment by the other party. Invalidity of the treaty may then unbalance the
position of the parties in that one of them derived a benefit or an enrichment
without itself having yet complied with the treaty obligation.32 In this situ-
ation, good faith calls, not for restoration of the status quo ante, but for the
obligation to restore the balance between the parties despite the invalidity
of the treaty.
Subpara. 2(b) responds to this situation at least in part by providing that
18
acts performed in good faith before the invalidity was invoked are not
rendered unlawful by reason only of the invalidity of the treaty. Thus,
invalidating a treaty does not deprive the acts of their lawful character—does
not render them unlawful—if they were performed in good faith in reliance on the treaty which at that time was believed to be valid.33 While the treaty has become invalid, acts committed in good faith remain valid. As a result, a party which derived a benefit from these acts may not refuse fulfilment of its obligations under the treaty on account of the invalidity of the treaty.
If treaty parties have been put on notice of the fact that the treaty is invalid (or that another State wishes to invoke its invalidity) but continue to perform in reliance on the treaty, the acts are no longer committed in good faith (see also Article 45).
28See the statement in the ILC by Yasseen, YBILC 1963 I 229, para. 56.
29ILC Report 1966, YBILC 1966 II 265, para. 3.
30Statement in the ILC by Bartos, YBILC 1963 I 230, para. 66.
31See the statement in the ILC by Jiménez de Aréchaga, YBILC 1966 I/2 230, para. 61.
32Ibid. 11, para. 4.
33See ILC Report 1966, YBILC 1966 II 265, para. 3; ILC Report 1963, YBILC 1963 II 216, para. 2; the statement in the ILC by Waldock, YBILC 1966 I/2 15, para. 51; Zoller, Bonne foi 328 .
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19Thus, subpara. 2(b) “saves” all those acts which have been committed in good faith (similarly Article 70, subpara. 1[b], N. 10).34 It concerns treaty parties which have been deprived upon the treaty’s nullity of a benefit on account of an act performed in good faith. Here, subpara. 2(b) o ers a tool for requesting restoration of the balance of the obligation. However, at this point the provision stops short. Article 69 does not mention how the other party can comply with its part of the treaty, i.e., whether to fulfil its obligations, or by replacement or reparation, or by any other means.35 Indeed, the Convention excludes all issues of the responsibility of States (Article 73, N. 8).36
4. Exceptions: Articles 49–52 (Para. 3)
20Para. 3 provides exceptions to para. 2. In cases falling under Articles 49, 50, 51 or
52, paragraph 2 does not apply with respect to the party to which the fraud, the act of corruption or the coercion is imputable. States responsible for the fraud, corruption or coercion are not entitled to benefit from the advantages deriving from para. 2 (ex iniuria non oritur ius).37 Para. 3 thus has a certain punitive character.38
In Vienna, Bulgaria and Poland considered the term “imputable” too vague and unsuccessfully proposed as an amendment the formulation “a party whose fraud, coercion or corrupt act has been the cause of the nullity of the treaty”.39
5. Situation of Multilateral Treaties (Para. 4)
21In the case of multilateral treaties, para. 4 limits the principles and exceptions stated in paras. 1–3 to the relations between the States concerned. In particular, in the case of the invalidity of a particular State’s consent to be bound by a multilateral treaty, the foregoing rules apply in the relations between that State and the parties to the treaty only.40 Thus, the invalidity of a State’s consent does not a ect the treaty itself.
34Cahier, RGDIP 76 (1972) 686.
35Statement in the ILC by Bartos, YBILC 1963 I 230, para. 67.
36Emphasised in the ILC Report 1966, YBILC 1966 II 264, para. 1.
37Jennings/Watts N. 644; ILC Report 1966, YBILC 1966 II 265, para. 4 (“obvious reasons”).
38Cahier, RGDIP 76 (1972) 687.
39OR Documents 196, subpara. 600(iii)(a). The proposal was referred to the Drafting Committee (OR 1968 CoW 447, para. 84) which did not pursue it.
40ILC Report 1966, YBILC 1966 II 265, para. 5. See also Reuter, Introduction N. 254; Aust, Modern Treaty Law 321.
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C. CONTEXT
1. Relationship to Other Provisions
Article 69 complements Articles 46–52all of which contain grounds of invalidity
22
(N. 4). The consequences of invalidity in Article 53 are dealt with in Article 71 (q.v.,
N. 3–5) which constitutes a lex specialis to Article 69.
The fact that a State has been released from the performance of the provisions of a treaty
does not impair its duty to fulfil any obligations embodied in the treaty which are bind-
ing upon it also under customary international law (Article 43, q.v.).
2. Matters Not Dealt With
Article 69 does not contain a clause on the autonomy of the parties, as for
23
instance Article 70, para. 1 (q.v., N. 7), no doubt because treaties will hardly
pronounce themselves on the possibility of their own invalidity. States are
free to agree otherwise. Moreover, subparas. 2(a) and (b) do not regulate all
the issues raised by a treaty’s invalidity (N. 12, 19). Finally, while Article 69
does not express itself on claims of private persons and third States, these are
protected by Article 43 (q.v.)41 to the extent that the respective rules have a
basis in general customary international law (N. 22 i.f.).
3. Customary Basis of Article 69
General international law distinguished between the consequences of invalid-
24
ity ex tunc and ex nunc of a treaty in a few ways only (N. 1). The embryonic
nature of these rules also pervaded the early debates on the topic within the ILC (N. 2).42 Article 69 for the first time enounced the principle that invalidity operated ex tunc (N. 9). In paras. 2–4 it structured the various consequences and introduced good faith as a guiding principle (N. 18). As such, Article 69 introduced various new elements.43 Given the virtually unanimous support in Vienna and the lack of any criticism thereafter, the provision can be said to be crystallising into customary international law.
41See Frowein, EPIL 3 (1997) 745.
42Zoller, Bonne foi 332 (“un contentieux embryonnaire en l’état actuel du droit des gens”).
43See the statement in the ILC by de Luna, YBILC 1966 I/2 12, para. 19 (“[u]ntil 1900, adherence to the principle of the e cacy of international law and the desire to protect the security of international relations had led to solutions very di erent from those embodied in Article 52 [of the ILC Draft 1963, leading to today’s Article 69]”).
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D. APPRECIATION
25Article 69 belongs to the four provisions (Articles 69–72, q.v.) dealing with the consequences of a party being released from a treaty’s obligations. As such, it appears well coordinated with the other three provisions. Article 69 admirably combines the comparatively rigid principle in para. 1, according to which all treaties are void ab initio, with the flexibility of para. 2 (in particular, the “as far as possible” clause, N. 15). At any time, the treaty parties are free to modify or waive the principle and the conditions in Article 69 (N. 7).44 Upon closer perusal, para. 2 o ers a complex regulation which nevertheless leaves a number of questions unanswered (N. 12, 19).45
44See Cahier, RGDIP 76 (1972) 686.
45See the statement in the ILC by Waldock, YBILC 1966 I/2 10, para. 88 (“much more intricate than appeared at first sight”); contra Reuter, Introduction N. 255 (“[Article] 69 merely laid down a few very general principles”).
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Article 70
Consequences of the termination of a treaty
1.Unless the treaty otherwise provides or the parties otherwise agree, the termination of a treaty under its provisions or in accordance with the present Convention:
(a)releases the parties from any obligation further to perform the treaty;
(b)does not a ect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination.
2.If a State denounces or withdraws from a multilateral treaty, paragraph 1 applies in the relations between that State and each of the other parties to the treaty from the date when such denunciation or withdrawal takes e ect.
Article 70 Conséquences de l’extinction d’un traité
1.A moins que le traité n’en dispose ou que les parties n’en conviennent autrement, le fait qu’un traité a pris fin en vertu de ses dispositions ou conformément à la présente Convention:
a)libère les parties de l’obligation de continuer d’exécuter le traité;
b)ne porte atteinte à aucun droit, aucune obligation ni aucune situation juridique des parties, créés par l’exécution du traité avant qu’il ait pris fin.
2.Lorsqu’un Etat dénonce un traité multilatéral ou s’en retire, le paragraphe 1 s’applique dans les relations entre cet Etat et chacune des autres parties au traité
àpartir de la date à laquelle cette dénonciation ou ce retrait prend e et.
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Artikel 70 Folgen der Beendigung eines Vertrags
1.Sofern der Vertrag nichts anderes vorsieht oder die Vertragsparteien nichts anderes vereinbaren, hat die nach den Bestimmungen des Vertrags oder nach diesem Übereinkommen eingetretene Beendigung des Vertrags folgende Wirkungen:
a)sie befreit die Vertragsparteien von der Verpflichtung, den Vertrag weiterhin zu erfüllen;
b)sie berührt nicht die vor Beendigung des Vertrags durch dessen Durchführung begründeten Rechte und Pflichten der Vertragsparteien und ihre dadurch gescha ene Rechtslage.
2.Kündigt ein Staat einen mehrseitigen Vertrag oder tritt er von ihm zurück, so gilt Absatz 1 in den Beziehungen zwischen diesem Staat und jeder anderen Vertragspartei vom Zeitpunkt des Wirksamwerdens der Kündigung oder des Rücktritts an.
ILC Draft 1966
Article 66—Consequences of the termination of a treaty
1.Unless the treaty otherwise provides or the parties otherwise agree, the termination of a treaty under its provisions or in accordance with the present articles:
(a)releases the parties from any obligation further to perform the treaty;
(b)does not a ect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination.
2.If a State denounces or withdraws from a multilateral treaty, paragraph 1 applies in the relations between that State and each of the other parties to the treaty from the date when such denunciation or withdrawal takes e ect.
Minutes: OR 1968 CoW 266 , 465; OR 1969 Plenary 90.
consequences of the termination of a treaty
867
Vienna Conference Vote: 93:0:4
Selected Literature (in addition to the literature mentioned in Article 65, q.v.):
H. Ascensio, Article 70, in: Corten/Klein (eds.) 2503 ; F. Capotorti, L’extinction et la suspension des traités, RC 134 (1971 III) 419 ; B. Conforti/A. Labella, Invalidity and Termination of Treaties: The Role of National Courts, EJIL 1 (1990) 44 ; A. Nollkaemper, Some Observations on the Consequences of the Termination of Treaties and the Reach of Article 70 of the Vienna Convention on the Law of Treaties, in: I.F. Dekker/H.H.G. Post (eds.), On the Foundations and Sources of International Law (2003) 187 .
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CONTENTS
Paras.
A. Background ........................................................................................
Situation of Multilateral Treaties (Para. 2) ........................................
11
C. Context ..............................................................................................
12
1.
Relationship to Other Provisions .....................................................
12
2.
Matters Not Dealt With ..................................................................
13
3.
Customary Basis of Article 70 ..........................................................
14
D. Appreciation ......................................................................................
15
A. BACKGROUND
1. Introduction
1 The pre-1969 situation appeared to be that termination of a treaty brought about the end of obligations arising therefrom ex nunc, though it did not a ect the validity of rights having arisen in the context of the treaty’s performance.1 This was also the view of the Harvard Draft of 1935.2 Occasionally, multilateral treaties provided that their denunciation by a State did not release the latter from its continuing obligations under that treaty.3 Similarly, case-law
1
See also A. McNair, La terminaison et la dissolution des traités, RC 22 (1928 II) 463 .
nation of treaties puts an end to all executory obligations stipulated in the treaty; it does
not a ect the validity of rights acquired in consequence of the performance of obligations
stipulated in the treaty”.
3Waldock Report II, YBILC 1963 II 94, para. 4. See, e.g., Article 58, para. 2 of the European Convention on Human Rights of 1950, according to which a denunciation of the Convention “shall not have the e ect of releasing the High Contracting Party concerned from its obligations under this Convention in respect of any act which, being capable of constituting a violation of such obligations, may have been performed by it before the date at which the denunciation became e ective”; and Article 40, para. 2 of the European
consequences of the termination of a treaty
869
confirmed that certain treaty obligations continued to exist independently of the treaty’s termination.4 The matter was only marginally addressed by the Institut in its examination in 1967 of the termination of treaties.5
2. History
Article 28 of Waldock Report II of 1963, which drew on the 1935 Harvard 2 Draft (N. 1), embodied in essence today’s Article 70.6 The ILC generally accepted this proposal in 1963, and many States supported the provision in their observations to the ILC.7 The final ILC Draft of 1966 was discussed only briefly at the Vienna Conference and adopted by 101 votes to none in 1969.8
Convention for the Peaceful Settlement of Disputes of 1957 (“[d]enunciation shall not release the High Contracting Party concerned from its obligations under this Convention in respect of disputes relating to facts or situations prior to the date of the notice referred to in the preceding paragraph”).
4See the Northern Cameroons (Cameroon/UK) Case, ICJ Reports 1963 35: “if during the life of the Trusteeship the Trustee was responsible for some act in violation of the terms of the Trusteeship Agreement which resulted in damage to another [UN Member] or to one of its nationals, a claim for reparation would not be liquidated by the termination of the Trust”; the diss. op. of Judge McNair in the Ambatielos (Greece/United Kingdom) Case, ICJ Reports 1962 176: “the desire of both Parties that the expiry of the Treaty of 1886 . . . should not adversely a ect claims ‘based’ upon it . . . [S]uch claims acquire an existence independent of the treaty whose breach gave rise to them. Neither the expiry of the Treaty of 1886, nor the entry into force of the Treaty of 1926, could a ect the survival and validity of claims
‘based’ on a breach of the Treaty of 1886 which had already occurred”. 5 See the Report by Rosenne, Annuaire IDI 52 (1967 I) 5 .
6 YBILC 1963 II 94; Kearney/Dalton, AJIL 64 (1970) 556. See previously Articles 28 of Fitzmaurice Report II, YBILC 1957 II 35 .
7 T he debate is reproduced at YBILC 1963 I 46 , 222, 290 f, 311 f, and 317. The ILC Report 1963 is at YBILC 1963 II 216 (Article 53). See the statement in the ILC by Jiménez de Aréchaga, YBILC 1966 I/2 16l, para. 63. The Swedish Government proposed the formulation in today’s subpara. 1(a), i.e., “releases the party from any obligation further to perform the treaty” (rather than: “releases the parties from any further application of the treaty”), YBILC 1966 II 56 (N. 8).
8T he draft is at YBILC 1966 II 265 f; adopted by 13 votes to none, with one abstention, YBILC 1966 I/2 160, para. 69. Article 70 was adopted at OR 1969 Plenary 126, para. 14. The French delegation proposed to add after the words “multilateral treaty” in para. 2 the words “other than a restricted multilateral treaty”, OR Documents 197, para. 613; this amendment was later withdrawn, OR 1969 CoW 213, para. 3.
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B. INTERPRETATION OF ARTICLE 70
1. Scope
3Article 70 states in subparas. 1(a) and (b) the two main consequences of the termination of a treaty (N. 8–11).9Para. 2 concerns the particular situation of States parties to a multilateral treaty (N. 12).
Morelli has criticised the impreciseness of the term “termination of treaty”: “lorsqu’on parle d’extinction d’un traité on veut indiquer, en réalité, l’extinction ou la suspension des e ets juridiques du traité, c’est-à-dire l’extinction . . . des règles créées par le traité et, par conséquent, des obligations et des droits subjectifs découlant de ces règles”.10
4Article 70 does not express itself on the grounds of termination.11 These will have been established under the provisions of a treaty (N. 7) or occur in accordance with the present Convention (Article 42, N. 10) and are to be found in Section 2 of Part V, i.e.,
–by consent of the parties, in particular in conformity with the provisions of a treaty, as in Article 54 (q.v., N. 4);
–reduction of the parties to a multilateral treaty, as in Article 55 (q.v., N. 4);
–denunciation of or withdrawal from a treaty containing no provision regarding termination, denunciation or withdrawal, as in Article 56 (q.v., N. 4–10);
–conclusion of a later treaty, as in Article 59 (q.v., N. 7);
–breach of treaty, as in Article 60 (q.v., N. 9);
–supervening impossibility of performance, as in Article 61 (q.v., N. 6);
–fundamental change of circumstances, as in Article 62 (q.v., N. 21); and
–severance of diplomatic or consular relations, as in Article 63 (q.v., N. 8).
A further ground of termination ( jus cogens) is mentioned in Article 64 (q.v.). Its consequences are dealt with in Article 71 (q.v., N. 8–9).
5Article 70 proceeds from the assumption that the procedures in Articles 65–68(q.v.) have been followed. Whether or not a State’s conduct after termination according to Articles 60 and 62 bars it from relying on termination will be assessed in the light of Article 45 (q.v.).
6Article 70 concerns treaties under which obligations still remain to be performed at or after termination of the treaty. If all obligations have been
9 Waldock Report II, YBILC 1963 II 94, para. 3 (“[l]argely self-evident”).
10Annuaire IDI 52 (1967 I) 290 f; see also Capotorti, RC 134 (1971 III) 452 .
11Fitzmaurice Report II, YBILC 1957 II 68, para. 207 (“[t]he cause of termination is of course immaterial. It is the fact that counts”). The Israeli Government submitted to the ILC that “[Article 70, para. 1] might be clearer if it were to specify the articles . . . to which the present article relates”, YBILC 1966 II 55.
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performed, nothing remains to be done and the treaty’s termination raises no further issues.12 If only one party has still to perform the treaty, only this party is concerned.
2. Autonomy of the Parties (Para. 1, Opening Sentence)
At the outset Article 70, para. 1 confirms the twofold autonomy of the parties in
7
respect of the consequences of a treaty’s termination. The consequences stated in
Article 70 apply unless (i) the treaty otherwise provides or (ii) the parties other-
wise agree.13 In the first case, the parties decided in advance in the treaty itself how
to resolve the consequences of the termination of the treaty; as a rule, this is stated
in the treaty’s transitional provisions. For instance, the treaty may provide that, if
one party denounces a treaty, it terminates for all other parties. In the second case,
all the parties reach a formal or informal agreement parallel or subsequent to the
treaty as regards the consequences of the termination of the treaty in respect of one
party, or some, or all parties.14
In the ILC the question arose how a treaty could regulate consequences upon or even
after its termination although it had already ceased to exist. Capotorti has suggested
in reply that in respect of any continuing consequences the treaty has not actually
completely terminated.15
3. Release from Obligations (Subpara. 1[a])
In a straightforward formulation, subpara.1(a) of Article 70 states that the
8
termination of a treaty releases the parties from any obligation further
to perform the treaty.16 Release from obligation occurs upon termination (“further to perform”), the latter has, therefore, no retroactive e ect.17 This
12Harvard Draft, AJIL 29 (1935) Supplement 1171 f; but see Fitzmaurice Report II, ibid. 67 f, para. 206, according to which, for the sake of “tidiness”, States may wish to terminate a fully executed treaty “which remains, so to speak, on the statute book. If for reasons of convenience, the parties agree to ‘terminate’ it, this is really no more than a record (constatation) of the fact that its obligations have indeed been fully performed, and that nothing remains to be done under it”.
13ILC Report 1966, YBILC 1966 II 265, para. 2.
14Waldock Report II, YBILC 1963 II 94, para. 4.
15RC 134 (1971 III) 459 f. The problem was raised by Verdross in the ILC, YBILC 1963 I 234, para. 26, and is reminiscent of the discussion whether the law of treaties can itself be regulated by a treaty (Issues of Customary International Law, N. 24–27). See Waldock’s reply, YBILC 1963 I 235, para. 37 (“these obligations were derived from the original consent given by the party”).
16See Article 33, para. (d) of the Harvard Draft, AJIL 29 (1935) 1171 (“[t]he termination of a treaty puts an end to all executory obligations stipulated in the treaty”); Aust, Modern Treaty Law 303 (“somewhat obviously”).
17See the statements in the ILC by Waldock, YBILC 1966 I/2 25, para. 6; and de Luna, ibid. 19, para. 15.
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consequence occurs ex nunc,18 as opposed to the consequence ex tunc upon a treaty’s nullity (Article 69, para. 1, q.v., N. 9). Termination itself has no further consequences for the parties; it does not, as for instance in Article 69, subpara. 2(a) (q.v., N. 11), provide for restitutio in integrum.19
For instance, a treaty exempts the ships of State B from paying fees when using a canal belonging to State A. If the treaty is terminated, this right ceases and A may again collect fees, albeit only pro futuro.20
Fitzmaurice pointed out a misunderstanding that might arise in this context, namely “the idea that the termination of a treaty may somehow revive an antecedent state of a airs”21 (which, as pointed out, is not the case as termination has no retroactive e ect, N. 8). This is to be distinguished from rights which arose before the treaty was terminated and which continue to have an existence of their own (N. 9–10).
Capotorti considers the formulation in subpara. 1(a) imprecise in two respects: (i) it should read “from any obligation to perform the treaty” in case there has not yet been any performance upon the treaty at all; and (ii) that the word “perform” should be substituted with “respect”.22
4. Rights or Obligations Having Arisen Before Termination (Subpara. 1[b])
9Subpara. 1(b) confirms the non-retroactive e ect of termination as in subpara. 1(a), but goes a step further.23 Thus, the termination of a treaty does not a ect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination. In other words, the termination does not a ect the validity of the acts of the parties performed during the treaty’s existence and prior to its termination; a fortiori
18See the Note by the Swiss Directorate of Public International Law of the Foreign Ministry, SZIER 5 (2004) 669.
19Fischer/Köck N. 269.
20Harvard Draft, AJIL 29 (1935) Supplement 1172.
21Fitzmaurice Report II, YBILC 1957 II 67, para. 204. See in particular the example mentioned by Gomaa, Suspension 134 n. 13 (quoted from Whiteman 473), of the French and British Ministers of Foreign A airs at the 100th session of the League of Nations Council in 1938: “[they] reminded the Rumanian [sic] representative . . . ‘that the [Treaty Between the Principle Allied and Associated Powers and Rumania] guaranteeing the rights of minorities in Rumania was the same treaty which had given Rumania both Transylvania and Bessarabia, and had stated that if the Rumanian Government should destroy the integrity of this treaty by attacking the Jewish minority in Rumania, the French and British Governments would regard the entire treaty, including the portions which give Transylvania and Bessarabia to her, annulled by the action of the Rumanian Government itself”.
22RC 134 (1971 III) 453. In respect of the second point, his criticism concerns in particular the French word “executer”.
23Delbrück/Wolfrum III 730; see also Capotorti, ibid. and at 456.
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it will not dissolve rights previously acquired under the treaty.24 The validity of these acts persists, although the treaty which gave them life no longer does.25 Subpara. 1(b) is thus a parallel provision to Article 69, subpara. 2(b) (q.v., N. 18), according to which acts committed in good faith remain valid even if the treaty itself has become invalid.26 A further expression of consent is not required. Whether such rights or obligations have arisen will have to be determined in good faith. In any event, rights and obligations of individuals and of third States not parties to the treaty are not covered.27
For instance, termination will not a ect nationality which has been granted, or payments which have been made. If as part of the performance of a particular treaty, State A cedes territory to State B, and if subsequently the treaty is terminated, A cannot then question the e ectiveness of the cession.28
Subpara. 1(b) does not concern the treaty provisions themselves which grant rights. According to subpara. 1(a) (N. 8), these treaty provisions will lapse with the termination of the treaty.29
Article 70, subpara. 1(b) “saves” all those rights and obligations which have 10 arisen in good faith under the treaty before its termination (similarly Article
69, subpara. 2[a], [q.v., N. 19]). A treaty party with an acquired right under the treaty and deprived, on account of termination, of a benefit, is o ered in Article 70 subpara. 1(b) a tool for requesting restoration of the balance of the obligation. But it is at this point that subpara. 1(b)—purposely—stops short.30 Article 70 does not mention how the other party can comply with its obligations after termination of the treaty, i.e., whether by fulfilling its
24Waldock Report III, YBILC 1963 II 94, para. 3. According to the Harvard Draft, “[termination] in nowise a ects the treaty insofar as its stipulations have already been performed . . . There can be no undoing of what was already done in carrying out the provisions of the treaty while it was in force, and no disturbing of rights vested as a result of such performance”, AJIL 29 (1935) Supplement 1172. See also Capotorti, ibid. 457 (“[c]e qui est arrivé historiquement reste, même juridiquement”).
25Fitzmaurice Report II, YBILC 1957 II 67, para. 204.
26Statement in the ILC by Waldock, YBILC 1966 I/2 25, para. 5.
27ILC Report 1966, YBILC 1966 II 265, para. 3; Aust, Modern Treaty Law 303; see Nollkaemper, in: Dekker/Post passim.
29Statement in the ILC by Briggs, YBILC 1966 I/2 21 f, para. 52.
30ILC Report 1966, YBILC 1966 II 266 para. 4 (“the equitable adjustment demanded by each case would necessarily depend on its particular circumstances . . . Accordingly, . . . the matter should be left to the application of the principle of good faith”). In the Fisheries Jurisdiction (UK/Iceland) Case, the Court found that “Iceland had derived benefits from the executed provisions of the agreement . . . Clearly it then becomes incumbent on Iceland to comply with its side of the bargain”, ICJ Reports 1973 62, para. 34. See also Verdross/ Simma N. 843 (“problematisch”), with reference to Jennings, General Course, RC 121 (1967 II) 578 f (“the loss lies where it falls”).
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obligations, or by replacement or reparation, or by any other means.31 Indeed, the Convention excludes all issues of the responsibility of States (Article 73, N. 8).32
In the 1990 Rainbow Warrior (New Zealand/France) Case, the tribunal held: “it is undisputed that the breaches of obligation incurred by the French Government . . . were committed at a time when the obligations assumed in the First Agreement were still in force. Consequently, the claims advised by New Zealand have an existence independent of the expiration of the First Agreement and entitle New Zealand to obtain adequate relief for these breaches”.33
5. Situation of Multilateral Treaties (Para. 2)
11In the case of multilateral treaties, the treaty itself may regulate the consequences of termination, i.e., if one party denounces or withdraws from the treaty, it will not be released from its obligations (N. 1). It may also state that the treaty terminates for all parties. The majority of treaties is silent on the matter.34 In this case, para. 2 of Article 70 provides that if a State denounces or withdraws from a multilateral treaty, paragraph 1 applies in the relations between that State and each of the other parties to the treaty from the date when such denunciation or withdrawal takes e ect (N. 7–10).
C. CONTEXT
1.Relationship to Other Provisions
12Article 70 complements Articles 54–56 and 59–63all of which mention grounds of termination (N. 4). The consequences of termination in Article
64are dealt with in Article 71 (q.v., N. 6–9) which constitutes a lex specialis to Article 70. Article 44 (q.v.) on the separability of treaty provisions may also play a part in the context of Article 70.35 The relevance of Article 45 has been pointed out above (N. 5).
31See Aust, Modern Treaty Law 303 (“[n]o rule is laid down in the Convention to deal with the situation where a treaty has been terminated because of supervening impossibility of its performance [Article 61], yet has been partially executed by one party only”).
32In respect of Article 70, see the ILC Report 1966, YBILC 1966 II 265, para. 1; and the statement in the ILC by Jiménez de Aréchaga, YBILC 1966 I/2 16, para. 65.
33RIAA 20 (1990) 226, para. 106, with reference to the diss. op. of Judge McNair in the Ambatielos Case (N. 1). See also Crawford Report III on State Responsibility, YBILC 2000 II, para. 262 (“[if] the breach of an international obligation gives right to a secondary right to reparation in favour of an injured State, it is hard to see how such a right would be a ected by the termination of the primary obligation breached”).
34Waldock Report II, YBILC 1963 II 94, para. 4.
35See Capotorti, RC 134 (1971 III) 461.
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The fact that a State has been released from the performance of the provisions of a treaty does not impair its duty to fulfil any obligations embodied in the treaty which are binding upon it also under customary international law (Article 43, q.v.).36
2. Matters Not Dealt With
Subpara. 1(b) does not regulate all issues raised by a treaty’s termination (N.
13
10). While Article 69 does not express itself on claims of private persons
and third States (N. 9), these are protected by Article 43 (q.v.) to the extent
that the respective rules have a basis in general customary international law
(N. 12 i.f.).
3. Customary Basis of Article 70
Article 70 appears declaratory of customary international law.
14
As Nollkaemper has pointed out, the principle underlying Article 70 “was not newly
invented in the International Law Commission. It is closely related to well-established
principles of acquired rights, legal certainty, non-retroactivity of the law and the doctrine
of inter-temporal law”.37
D. APPRECIATION
Article 70 belongs to the four provisions (Articles 69–72, q.v.) dealing with the
15
consequences of a party being released from a treaty’s obligations. As such, it
appears well coordinated with the other three provisions. Article 70, para. 1 (N. 7) leaves much room for the parties to choose alternate solutions upon termination of a treaty. Upon closer perusal, subpara. 1(b) purposely leaves certain issues open and contains a somewhat complex regulation.38 More generally, Capotorti has criticised Article 70 in that it employs imprecise language.39
36See Article 53, para. 4 of the ILC Draft 1963, YBILC 1963 II 216; Verdross/Simma N. 844.
37In: Dekker/Post 187.
38See the statement in Vienna by the Greek delegation, OR 1968 CoW 447, para. 3 (“it seemed to be rather bold to draw a distinction between the release of the parties from any obligation further to perform the treaty and the statement that the termination of a treaty did not a ect the right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination”).
39RC 134 (1971 III) 453; see ibid. at 452 (“la variété [des] conséquences ne ressort pas de l’expression employée à l’article 70, paragraphe 1”).
Article 71
Consequences of the invalidity of a treaty which conflicts with a peremptory norm of general international law
1.In the case of a treaty which is void under Article 53 the parties shall:
(a)eliminate as far as possible the consequences of any act performed in reliance on any provision which conflicts with the peremptory norm of general international law; and
(b)bring their mutual relations into conformity with the peremptory norm of general international law.
2.In the case of a treaty which becomes void and terminates under Article 64, the termination of the treaty:
(a)releases the parties from any obligation further to perform the treaty;
(b)does not a ect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination; provided that those rights, obligations or situations may thereafter be maintained only to the extent that their maintenance is not in itself in conflict with the new peremptory norm of general international law.
Article 71 Conséquences de la nullité d’un traité en conflit avec une norme impérative du droit international général
1.Dans le cas d’un traité qui est nul en vertu de l’art. 53, les parties sont tenues:
a)d’éliminer, dans la mesure du possible, les conséquences de tout acte accompli sur la base d’une disposition qui est en conflit avec la norme impérative du droit international général; et
invalidity of a treaty on account of a peremptory norm
877
b)de rendre leurs relations mutuelles conformes à la norme impérative du droit international général.
2.Dans le cas d’un traité qui devient nul et prend fin en vertu de l’art. 64, la fin du traité:
a)libère les parties de l’obligation de continuer d’exécuter le traité;
b)ne porte atteinte à aucun droit, aucune obligation, ni aucune situation juridique des parties, créés par l’exécution du traité avant qu’il ait pris fin; toutefois, ces droits, obligations ou situations ne peuvent être maintenus par la suite que dans la mesure où leur maintien n’est pas en soi en conflit avec la nouvelle norme impérative du droit international général.
Artikel 71 Folgen der Ungültigkeit eines Vertrags, der im Widerspruch zu einer zwingenden Norm des allgemeinen Völkerrechts steht
1.Im Fall eines nach Artikel 53 nichtigen Vertrags haben die Vertragsparteien
a)soweit wie möglich die Folgen von Handlungen zu beseitigen, die, gestützt auf eine zu der zwingenden Norm des allgemeinen Völkerrechts im Widerspruch stehende Bestimmung, vorgenommen wurden, und
b)ihre gegenseitigen Beziehungen mit der zwingenden Norm des allgemeinen Völkerrechts in Einklang zu bringen.
2.Im Fall eines Vertrags, der nach Artikel 64 nichtig wird und erlischt, hat die Beendigung folgende Wirkungen:
a)sie befreit die Vertragsparteien von der Verpflichtung, den Vertrag weiterhin zu erfüllen;
b)sie berührt nicht die vor Beendigung des Vertrags begründeten Rechte und Pflichten der Vertragsparteien und ihre dadurch gescha ene Rechtslage; solche Rechte, Pflichten und Rechtslagen dürfen danach jedoch nur insoweit aufrechterhalten werden, als ihre Aufrechterhaltung als solche nicht im Widerspruch zu der neuen zwingenden Norm des allgemeinen Völkerrechts steht.
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ILC Draft 1966
Article 67—Consequences of the nullity or termination of a treaty conflicting with a peremptory norm of general international law
1.In the case of a treaty void under Article 50 the parties shall:
(a)Eliminate as far as possible the consequences of any act done in reliance on any provision which conflicts with the peremptory norm of general international law; and
(b)Bring their mutual relations into conformity with the peremptory norm of general international law.
2.In the case of a treaty which becomes void and terminates under Article 61, the termination of the treaty:
(a)Releases the parties from any obligation further to perform the treaty;
(b)Does not a ect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination; provided that those rights, obligations or situations may thereafter be maintained only to the extent that their maintenance is not in itself in conflict with the new peremptory norm of general international law.
Materials:
ILC Draft 1963: Article 53, para 2.
Minutes: YBILC 1966 I/2 160 , 320, 334.
ILC Draft 1966: Article 00.
Minutes: OR 1968 CoW 448 , 483; OR 1969 Plenary 126 f.
Vienna Conference Vote: 87:5:12
Selected Literature (in addition to the literature mentioned in Article 53, q.v.):
F. Crépeau/R. Côté, Article 71, in: Corten/Klein (eds.) 2545 .
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CONTENTS
Paras.
A. Background ........................................................................................
1
1. Introduction (see Article 53, N. 1)
2.
History ............................................................................................
1
B. Interpretation of Article 71 ............................................................
Conflicting Treaty Under Article 53 (Para. 1) ..................................
3
3.
Conflicting Treaty Under Article 64 (Para. 2) ..................................
6
C. Context ..............................................................................................
10
1.
Relationship to Other Provisions .....................................................
10
2.
Customary Basis of Article 71 ..........................................................
11
D. Appreciation ......................................................................................
12
A. BACKGROUND
1. Introduction
(see Article 53, N. 1)
2. History
The subject-matter of Article 71 was raised in the ILC in 1963.1 The result-
1
ing ILC Draft 1963 contained in the provision leading to today’s Article 69
(q.v., N. 2) one clause on the legal consequences of the termination of a treaty, corresponding with today’s Article 71, para. 2 (N. 6–9).2Comments by Governments on this provision concerned mainly the uncertain content of peremptory norms.3 In 1966 the ILC’s Drafting Committee introduced a new article reflecting today’s Article 71. Its purpose was to include in one provision all the consequences of treaties conflicting with jus cogens.4 The ILC
1See the statements by Ago, YBILC 1963 I 234, para. 15; and Waldock, ibid. para. 25. For purposes of this commentary, the terms “jus cogens” and “peremptory norm” are employed
unanimously adopted the new rule.5 At the Vienna Conference, those States which disagreed generally with provisions on jus cogens in the Convention, also expressed themselves against Article 71. The latter was adopted by 87 votes to five, with twelve abstentions.6
B. INTERPRETATION OF ARTICLE 71
1. Scope
2Article 71 expresses itself on the consequences of the invalidity of a treaty which conflicts with a peremptory norm of general international law. The provision is closely linked with, and complements, Articles 53 and 64 (q.v.) dealing with the consequences of existing and supervening jus cogens. Article 71 has an intended pedagogical function in that it emphasises the di erent consequences of the original nullity of a treaty as in Article 53, and the subsequent annulment of the treaty as under Article 64.7 On the whole, Article 71 aims not so much at adjusting the position of the treaty parties in relation to each other as to their obligation to bring their position into conformity with a conflicting rule of jus cogens.8
2. Conflicting Treaty Under Article 53 (Para. 1)
3Para. 1 deals with the case of a treaty which is void under Article 53. Here, the conflicting treaty is void ab initio as from its conclusion (Article 53, N. 20).
4If a treaty conflicts with jus cogens according to Article 53, the parties shall,
first, eliminate as far as possible the consequences of any act performed in reliance on any provision which conflicts with the peremptory norm of general international law (subpara. 1[a]). In fact, the consequences of the treaty’s performance should be limited, since Article 53 presupposes a conflicting treaty “at the time of its conclusion”. Subpara. 1(a) thus verges on the law of State responsibility which lies outside the scope of the Convention (Article 73, N. 8).9
5ILC Report 1966, YBILC 1966 II 266 f (adopted at YBILC 1966 I/2 162, para. 85, by 16 votes to none).
6OR 1969 Plenary 127, para. 4. The UK delegation abstained since it felt that subpara. 1(a) unnecessarily “dealt with questions of State responsibility”, ibid. para. 15; see also the statements by the delegations of Turkey, OR 1968 CoW 449, para. 18; and Switzerland,
ibid. para. 27.
7 ILC Report 1966, YBILC 1966 II 266, para. 2; Delbrück/Wolfrum III 711 f. 8 ILC Report 1966, ibid. para. 1.
9 See the statement in Vienna by the Italian delegation, OR 1968 CoW 450, para. 37.
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Second, the parties shall bring their mutual relations into conformity with
5
the peremptory norm of general international law (subpara. 1[b]). Here,
Article 71 ex abundantia cautela calls on the parties fully to conform with
international law, though there is no obligation to conclude a new treaty.
Indeed, States are free to make their relations directly subject to the norm
of jus cogens.10
3. Conflicting Treaty Under Article 64 (Para. 2)
Para. 2 concerns the case of a treaty which becomes void and terminates
6
under Article 64. This is a special form of invalidity, concerning solely those
treaty provisions which conflict with a jus cogens rule after it emerges, and
thus operating ex nunc rather than ab initio (Article 64, N. 4–6).11Provisions
which are not in conflict remain valid.
Article 71, para. 2, which is a lex specialis, di ers from Article 70 (q.v.) in that in the lat-
ter situation the “parties [may] otherwise agree”. The parties do not enjoy this freedom
under Article 71, para. 2, insofar as the treaty norms conflict with jus cogens rules.12
It follows that Article 71, para. 2 envisages no retroactivity of the jus cogens rule
7
(Article 64, N. 5). The latter cannot render void acts performed under a treaty at a
previous time when they were not contrary to international law. Article 71, para. 2,
and in particular its subpara. 2(b) (N. 9), preserves the legality of such acts.13
Subpara. 2(a) provides that, to the extent that treaty norms conflict with
8
emerging jus cogens and, therefore, become void, the termination of the treaty
releases the parties from any obligation further to perform the treaty. To
this extent, the termination of the treaty is compulsory, and the parties are
not free inter se to agree to confirm the treaty’s validity.14
According to subpara. 2(b), termination of the treaty does not a ect any
9
right, obligation or legal situation of the parties created through the
execution of the treaty prior to its termination; provided that those rights,
obligations or situations may thereafter be maintained only to the extent
that their maintenance is not in itself in conflict with the new peremptory norm of general international law. Acts performed under the treaty before the jus cogens rule emerged remain valid (N. 7), though their further maintenance is only admissible insofar as they are not in conflict with that
10See the statements in the ILC by Waldock, YBILC 1966 I/2 161, para. 78; Jiménez de Aréchaga, ibid. para. 79; Tsuruoka, ibid. 161, para. 75; and Bartos, ibid. 76.
11ILC Report 1966, YBILC 1966 II 266, para. 1.
12Ibid.; see also the ILC Report 1963, YBILC 1963 II 216 f, para. 3; Sztucki, Jus cogens 146.
13Waldock Report VI, YBILC 1966 II 56 f, para. 3.
14See Rozakis, Concept 144.
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rule.15 Here, subpara. 2(b) di ers from Article 70, para. 1(b) (q.v., N. 9–10). Any existing rights, obligations or legal situations of the parties continue to be governed by pacta sunt servanda and good faith (Article 26, N. 8).16 No further expression of consent is required.17
C. CONTEXT
1. Relationship to Other Provisions
10Article 71 in essence complements Articles 53 and 64. It also constitutes a lex specialis to Article 69 (q.v.) which expresses itself generally on the consequences of the invalidity of a treaty in Articles 46–52. To the extent that Article 71 deals with the situations raised in Article 69, the latter no longer appears relevant in the context of jus cogens.18
2. Customary Basis of Article 73
11Like its “parents” Articles 53 (q.v., N. 25) and 64 (q.v., N. 10), it is most likely that Article 71 crystallised into customary law only after its adoption in Vienna in 1969.
D. APPRECIATION
12Article 71 is welcome in that it spells out in some detail the consequences of a treaty conflicting with jus cogens. As such its relevance goes well beyond its intended pedagogical functions (N. 2).
15ILC Report 1966, YBILC 1955 II 266 f, para. 4.
16See the statement in Vienna by the Cuban delegation, OR 1968 CoW 448, para. 15.
17T he Cuban delegation unsuccessfully requested the “express consent of the parties” for the rights, obligations and situations to be maintained, ibid. para. 14.
18ILC Report 1966, YBILC 1966 II 265, para. 4 (“[ jus cogens] is the subject of a special provision in Article [71]”); Sztucki, Jus cogens 145.
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Article 72
Consequences of the suspension of the operation of a treaty
1.Unless the treaty otherwise provides or the parties otherwise agree, the suspension of the operation of a treaty under its provisions or in accordance with the present Convention:
(a)releases the parties between which the operation of the treaty is suspended from the obligation to perform the treaty in their mutual relations during the period of the suspension;
(b)does not otherwise a ect the legal relations between the parties established by the treaty.
2.During the period of the suspension the parties shall refrain from acts tending to obstruct the resumption of the operation of the treaty.
Article 72 Conséquences de la suspension de l’application d’un traité
1.A moins que le traité n’en dispose ou que les parties n’en conviennent autrement, la suspension de l’application d’un traité sur la base de ses dispositions ou conformément à la présente Convention:
a)libère les parties entres lesquelles l’application du traité est suspendue de l’obligation d’exécuter le traité dans leurs relations mutuelles pendant la période de suspension;
b)n’a ecte pas par ailleurs les relations juridiques établies par le traité entre les parties.
2.Pendant la période de suspension, les parties doivent s’abstenir de tous actes tendant à faire obstacle à la reprise de l’application du traité.
884
article
Artikel 72 Folgen der Suspendierung eines Vertrags
1.Sofern der Vertrag nichts anderes vorsieht oder die Vertragsparteien nichts anderes vereinbaren, hat die nach den Bestimmungen des Vertrags oder nach diesem Übereinkommen erfolgte Suspendierung des Vertrags folgende Wirkungen:
a)sie befreit die Vertragsparteien, zwischen denen der Vertrag suspendiert ist, in ihren gegenseitigen Beziehungen während der Suspendierung von der Verpflichtung, den Vertrag zu erfüllen;
b)sie berührt anderweitig die durch den Vertrag zwischen den Vertragsparteien begründeten Rechtsbeziehungen nicht.
2.Während der Suspendierung haben sich die Vertragsparteien aller Handlungen zu enthalten, die der Wiederanwendung des Vertrags entgegenstehen könnten.
ILC Draft 1966
Article 68—Consequences of the suspension of the operation of a treaty
1.Unless the treaty otherwise provides or the parties otherwise agree, the suspension of the operation of a treaty under its provisions or in accordance with the present articles:
(a)relieves the parties between which the operation of the treaty is suspended from the obligation to perform the treaty in their mutual relations during the period of the suspension;
(b)does not otherwise a ect the legal relations between the parties established by the treaty.
2.During the period of the suspension the parties shall refrain from acts tending to render the resumption of the operation of the treaty impossible.
Materials:
Minutes: YBILC 1963 I 242, 282 f, 296, 319, 322.
ILC Draft 1963: Article 54.
WALDOCK Report V: Article 54.
Minutes: YBILC 1966 I/2 26 , 162, 320 f, 334.
ILC Draft 1966: Article 68.
Minutes: OR 1968 CoW 450 f, 484; OR 1969 Plenary 126 f.
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Vienna Conference Vote: 102:1:1
Selected Literature (in addition to the literature mentioned in Article 65, q.v.):
F. Capotorti, L’extinction et la suspension des traités, RC 134 (1971 III) 419 ; Ph. Couvreur/C. Espaliú Berdud, Article 72, in: Corten/Klein (eds.) 2565 ; B. Simma,Termination and Suspension of Treaties: Two Recent Austrian Cases, GYBIL 21 (1978) 74 .
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CONTENTS
Paras.
A. Background ........................................................................................
Autonomy of the Parties (Opening Sentence of Para. 1) ...................
8
3.
Release From Obligations (Subpara. 1[a]) ........................................
9
4.
Other Legal Relations Between Parties (Subpara. 1[b]) ....................
10
5.
Resumption of Operation of Treaty (Para. 2) ...................................
11
C. Context ..............................................................................................
12
1.
Relationship to Other Provisions .....................................................
12
2.
Matters Not Dealt With ..................................................................
13
3.
Customary Basis of Article 72 ..........................................................
14
D. Appreciation ......................................................................................
15
A. BACKGROUND
1.Introduction
1 There appears to be no pre-Convention practice on the consequences of the suspension of a treaty. Neither the Harvard Draft of 1935 nor the Institut in 1967 took up the topic.1
2.History
2 In his early reports Waldock did not touch on the subject of the consequences of the suspension of the operation of a treaty. In 1963 in the context of discussing Articles 54 and 57 (q.v.), Rosenne proposed in the ILC to have “all, or as many as possible, of the provisions on suspension [transferred] to one or two separate articles on that subject”.2 The Drafting Committee then introduced a new article containing the thrust of today’s Article 72.3 In their observations to the ILC, Governments generally endorsed the provision.4 In
1 AJIL 29 (1035) Supplement 657 ; see the Report by Rosenne, Annuaire IDI 52 (1967 I) 5 .
2 YBILC 1963 I 242, para. 54.
3 Ibid. 282, para. 87. See Article 54 of the ILC Report 1963, YBILC 1963 II 217. 4 Waldock Report VI, YBILC 1966 II 57 .
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1966 the ILC discussed the consequences of suspension in relationship to Article 60 (q.v.).5 In Vienna, a Mexican amendment was not pursued.6 The final version was adopted by 102 votes to one, with one abstention.7
B. INTERPRETATION OF ARTICLE 72
1. Scope
“The whole essence of suspension [is] its temporary character”.8 The purpose of
3
suspension is that a treaty becomes inoperative for the parties for a particular time though the treaty regime itself is not a ected. Thus, suspension concerns the operation of a treaty, not the treaty itself which remains in force, albeit suspended.9 The parties themselves will decide when the operation of the treaty is to be resumed. No distinction is made in Article 72 between biand multilateral treaties in respect of the consequences of suspension. However, in the case of multilateral treaties, the e ects of suspension are limited to the parties concerned (Article 58, q.v.).10 Of course, not all treaties can be suspended. The subject-matter of some treaties (e.g., human rights treaties) may militate against a treaty being “parcelled” or “fragmented” in time and later resumed (N. 8).11
In practice, suspension is particularly suitable if relations between the parties should remain amicable.12 Moreover, suspension is less far reaching than termination and may be employed as a proportionate measure, for instance, in the case of breach of treaty (Article 60, N. 9).13
5See, e.g., YBILC 1966 I/2 29 ; a further revised draft was introduced ibid. at 162, para. 87. The ILC adopted the provision by 15 votes to none, with one abstention, ibid. 162,
para. 89.
6Aimed at introducing the words “or to frustrate the object of the treaty” in para. 2, OR Documents 198, para. 628.
7OR 1969 CoW Plenary 127, para. 17. The Conference introduced in subpara. 1(a) the word “releases” instead of “relieves” employed by the ILC Draft 1966, and in para. 2 the
words “obstruct the resumption” instead of “render impossible”.
8 See the statement in the ILC by Rosenne, YBILC 1966 I/2 29, para. 47.
9ILC Report 1963, YBILC 1963 II 217, para. 3; Gomaa, Suspension 153; Capotorti, RC 134 (1971 III) 468, who further considers, ibid., that Article 72 in fact concerns the e ects of a treaty. Note that the temporary nature is further confirmed by the formulation “during the period of suspension” in subpara. 1(a) (N. 9); see the statement in the ILC by Waldock, YBILC 1966 I/2 31, para. 70.
10See the statement in the ILC by its Chairman, Yasseen, YBILC 1966 I/2 29, para. 53; Gomaa, Suspension 135.
11See further Capotorti, RC 134 (1971 III) 469.
12Fischer/Köck N. 262.
13Capotorti, RC 134 (1971 III) 467.
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In 1975, Austria declared its intention to suspend the application of Article 2 of the Austrian/Swiss Treaty of Establishment of 1875 “until such time as the Swiss Confederation may see itself again in a position to resume the application of the said provision of the Treaty in accordance with the aim and purpose of the latter”.14
4Article 72 states in subparas. 1(a) and (b) and in para. 2 three consequences of the suspension of the operation of a treaty (N. 9–11).
The notion of “parties” employed throughout in Article 72 includes all parties of the treaty, except in subpara. 1(a) where only those parties are addressed between which the operation of the treaty is suspended (N. 9).
5However, Article 72 does not express itself on the grounds of suspension.15 These will have been established under the provisions of the treaty or occur in accordance with the present Convention (Article 42, N. 10)16 and are to be found in Section 2 of Part V, i.e.,
–suspension of the operation of a treaty under its provisions or by consent of the parties, as in Article 57 (q.v.);
–suspension of the operation of a multilateral treaty by agreement between certain of the parties only, as in Article 58 (q.v.);
–conclusion of a later treaty, as in Article 59 (q.v.);
–breach of treaty, as in Article (60 q.v.);
–supervening impossibility of performance, as in Article 61 (q.v., N. 8);
–fundamental change of circumstances, as in Article 62 (q.v., N. 21);
–severance of diplomatic or consular relations, as in Article 63 (q.v., N. 8).17
6To the extent that these grounds eventually cease to exist, suspension must terminate and performance of the treaty be resumed.18
Article 72 proceeds from the assumption that the procedures in Articles 65–68(q.v.) have been followed.19 Whether or not a State’s conduct after termina-
14Simma, GYBIL 21 (1978) 87. The application of Article 2 of this treaty remains suspended; see http://www.admin.ch/ch/d/sr/0_142_111_631/a2.html (website visited on 1 March 2008); and the exchange of Notes in SR 0.142.111.631.2.
15T he Israeli Government proposed in its observation to the ILC that Article 72 should specify the Convention articles to which it refers; see Waldock Report VI, YBILC 1966 II 57 f.
16T his answers the point raised by Tunkin in the ILC, i.e., that Article 72 failed to state whether or not the suspension by one treaty party also entitled other parties to suspend the treaty, YBILC 1966 I/2 27 .
17But see here the submissions by the Israeli Government to the ILC, i.e., that the present Article 72 did not deal with the interruption of diplomatic relations, Waldock Report VI, YBILC 1966 II 57 f.
18See the statement in the ILC by Waldock, YBILC 1966 I/2 31, para. 78; Capotorti, RC 134 (1971 III) 470; Gomaa, Suspension 135.
19Insofar as these provisions apply. But see, for instance, Article 57 (N. 5) and Article 58
(N. 9).
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tion according to Articles 60 and 62 bars it from relying on suspension, will be assessed in the light of Article 45 (q.v.).
2. Autonomy of the Parties (Opening Sentence of Para. 1)
At the outset, Article 72, para. 1 confirms the twofold autonomy of the parties
8
in respect of the consequences of the suspension of the operation of a treaty.
The consequences stated in Article 72 apply unless (i) the treaty otherwise
provides or (ii) the parties otherwise agree.20 In the first case, the parties
enshrine in advance in the treaty itself how to resolve the consequences of
the suspension of the operation of the treaty. Conversely, parties are free to
exclude suspension, e.g., in respect of human rights treaties (N. 3).21 In the
second case, all the parties reach a formal or informal agreement parallel or
subsequent to the treaty in respect of the consequences of the suspension
concerning one party, or some, or all parties.
3. Release From Obligations (Subpara. 1[a])
Subpara. 1(a) proclaims the main rule in Article 72 (taken over from Article
9
70, subpara. 1[a], N. 8),22 namely, that the suspension of the operation of
a treaty releases the parties between which the operation of the treaty
is suspended from the obligation to perform the treaty in their mutual
relations during the period of the suspension. In e ect, suspension “paraly-
ses” the operation of the treaty from the moment it is agreed upon. 23 Thus,
suspension has no retroactive e ect.
The formulation “parties between which” employed in subpara. 1(a) ably covers the
situation of both biand multilateral treaties—and in particular the case of the suspen-
sion inter se by some parties to the multilateral treaty (N. 3).24
4. Other Legal Relations Between Parties (Subpara. 1[b])
Subpara. 1(b) confirms the non-retroactive e ect of termination as in subpara.
10
1(a), but goes a step further. Thus, suspension of the operation of a treaty
does not otherwise a ect the legal relations between the parties established by the treaty. As in Article 70, subpara. 1[b] (q.v., N. 9), this rule safeguards rights and obligations established between the parties before suspension of
20ILC Report 1966, YBILC 1966 II 267, para. 2.
21See the statement in the ILC by de Luna, YBILC 1966 I/2 27 f, paras. 23–30.
22Capotorti, RC 134 (1971 III) 468.
23Ibid.
24See the statements in the ILC by Yasseen and Ago, YBILC 1966 I/2 29, paras. 53, and
30, para. 55, respectively.
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article
the operation of the treaty;25 despite suspension, the legal nexus established by the treaty remains intact.26 Whether or not such rights or obligations have arisen, will have to be determined in good faith.
As Bartos pointed out in the ILC, “the provision [is intended] to prevent parties from behaving as if they had been released from their legal obligations, and to make it clear that, even though they were exempted from applying the treaty during the period of suspension, they were not thereby released from their legal obligations”.27
5. Resumption of Operation of Treaty (Para. 2)
11Suspension is only a temporary measure and does not destroy the legal nexus established between the parties (N. 10).28 Resumption of the operation of the treaty must remain one of the options for the parties. The suspension of the operation of the treaty may not, therefore, be employed in order to hinder the subsequent renewed performance under the treaty. In this light, para. 2 provides that during the period of the suspension the parties shall refrain from acts tending to obstruct the resumption of the operation of the treaty. This obligation is implicit in the concept of suspension. It finds its basis in the principle of pacta sunt servanda and the obligation to perform the treaty in good faith (Article 26, q.v.).29 The obligation resembles that in Article 18 (q.v.) not to defeat the object and purpose of a treaty prior to its entry into force.30
The ILC considered, inter alia, the word “calculated” in para.2.31 The word finally chosen, i.e., “tending”, appears more neutral and in particular does not prejudice whether the acts were intentional or negligent.
25See the statements in the ILC by Lachs, Rosenne and Waldock, YBILC 1963 I 283, paras. 92–100.
26ILC Report 1966, YBILC 1966 II 207, para. 3.
27YBILC 1963 I 283, para. 98.
28ILC Report 1966, YBILC 1966 II 207, para. 4; and ILC Report 1963, YBILC 1963 II 217, para. 3.
29ILC Report 1966, ibid.
30T he formulation in para. 2 appears broad enough to accommodate the Mexican proposal at the Conference (N. 2); see the statement in Vienna by the Chairman of the Drafting Committee, Yasseen, OR 1968 CoW 451 para. 55.
31See the statement in the ILC by Ago, YBILC 1966 I/1 334, para. 117.
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C. CONTEXT
1. Relationship to Other Provisions
Article 44 (q.v.) on the separability of treaty provisions may play a part in
12
the context of Article 72.32 The relevance of Article 45 has been pointed out
above (N. 7).
2. Matters Not Dealt With
Matters of State responsibility lie outside the Convention (Article 73, N. 8).33
13
3. Customary Basis of Article 72
As in Article 57 (q.v., N. 2), the ILC appears to have been the first to formu-
14
late rules on the matter (N. 2) which at the outset, therefore, amounted to
progressive development. Given the virtually unanimous support in Vienna
and the lack of any subsequent opposition, it can be assumed that Article 57
has crystallised into customary international law.
D. APPRECIATION
Article 72 belongs to the four provisions (Articles 69–72, q.v.) dealing with
15
the consequences of a party being released from a treaty’s obligations. As
such, even though Article 72 was introduced comparatively late in the ILC in 1963 and attracted little discussion throughout its evolution, it appears well coordinated with the other three provisions. The article was considered “less complex” than the previous ones, and indeed, some ILC members thought that the Convention would “not su er” if Article 72 were omitted altogether.34 Fears expressed in the ILC that the provision might o er States “a new way of avoiding treaty obligations” have not been confirmed.35
32Statement in the ILC by Waldock, YBILC 1966 I/2 28, para. 41.
33ILC Report 1966, YBILC 1966 II 207, para. 1.
34Respectively, the observation by the Swedish Government to the ILC, Waldock Report VI, YBILC 1966 II 58; and the statement by Ago in the ILC, YBILC 1966 I/2 30, para. 54.
35Statement by Jiménez de Aréchaga, ibid. 30, para. 58. See also Waldock, ibid. 31, para. 78 (“suspension must terminate when the causes of suspension ceased to exist”).
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PART VI
MISCELLANEOUS PROVISIONS
Article 73
Cases of State succession, State responsibility and outbreak of hostilities
The provisions of the present Convention shall not prejudge any question that may arise in regard to a treaty from a succession of States or from the international responsibility of a State or from the outbreak of hostilities between States.
Article 73 Cas de succession d’Etats, de responsabilité d’un Etat ou d’ouverture d’hostilités
Les dispositions de la présente Convention ne préjugent aucune question qui pourrait se poser à propos d’un traité du fait d’une succession d’Etats ou en raison de la responsabilité internationale d’un Etat ou de l’ouverture d’hostilités entre Etats.
Artikel 73 Fälle der Staatennachfolge, der Verantwortlichkeit der Staaten und des Ausbruchs von Feindseligkeiten
Dieses Übereinkommen lässt Fragen unberührt, die sich hinsichtlich eines Vertrags aus der Nachfolge von Staaten, aus der völkerrechtlichen Verantwortlichkeit eines Staates oder aus dem Ausbruch von Feindseligkeiten zwischen Staaten ergeben können.
ILC Draft 1966
Article 69—Cases of State succession and State responsibility
The provisions of the present articles are without prejudice to any question that may arise in regard to a treaty from a succession of States or from the international responsibility of a State.
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Materials:
Minutes: YBILC 1966 I/2 297 , 307, 334 .
ILC Draft 1966: Article 69.
Minutes: OR 1968 CoW 199, 451 ; OR 1969 Plenary 1969 125 .
Vienna Conference Vote: 100:0:0
Selected Literature:
General
M. Akehurst, Treaties,Termination, EPIL 4 (2000) 987 ; H. Ballreich,Treaties, E ect on Third States, EPIL 4 (2000) 945 ; S. Nahlik, The Grounds of Invalidity and Termination of Treaties, AJIL 65 (1971) 736 ; R. Provost, Article 73, in: Corten/Klein (eds.) 2591 .
State Succession
B-K
E.G. Bello, Reflection on Succession of States in the Light of the Vienna Convention on Succession of States in Respect of Treaties, GYBIL 23 (1980) 296 ; L.-F. Cheng, State Succession Relating to Unequal Treaties (1974); M. Craven, The Problem of State Succession and the Identity of States under International Law, EJIL 9 (1998) 142 ; J. Crawford, State Practice and International Law in Relation to Succession, BYBIL 69 (1998) 85 ; W. Czaplinski, State Succession and State Responsibility, Canadian YBIL 28 (1990) 339 ; G.E. do Nascimento E Silva, The 1969 and the 1986 Conventions on the Law of Treaties: A Comparison, in: S. Rosenne (ed.), International Law at a Time of Perplexity (1989), 461 ; P. Eisemann/M. Koskenniemi (eds.), State Succession: Codification Tested against the Facts (2000); W, Fiedler, State Succession, EPIL 4 (2000) 641 ; K. Hailbronner, Legal Aspects of the Unification of the Two German States, EJIL 1 (1991) 18 ; M. Kamminga, State Succession in Respect of Human Rights Treaties, EJIL 7 (1996) 469 ; J. Klabbers et al.(eds.), State Practice Regarding State Succession and Issues of Recognition (1999); S.T. Korman, The 1978 Convention on Succession of States in Respect of Treaties: An Inadequate Response to the Issue of State Succession, Su olk TLR 16 (1992) 174 .
O-Z
D.P. O’Connell, Reflections on the State Succession Convention, ZaöRV 39 (1979) 725 ; Id., State Succession in Relation to New States, RC 130 (1970 II) 95 ; Sh. Rosenne, Succession of States and the Codification of the Law of Treaties, in: Essays on International Law in Honour of D.A. de Luna (1968) 268 ; O. Schachter, State Succession: The Once and Future Law, Virginia JIL 33 (1993) 253 ; M. Scharf, Musical Chairs: The Dissolution of States and Membership in the United Nations, Cornell ILJ 28 (1995) 29 ; H. Schiedermair, Der Untergang von Staaten und das Problem der Staatennachfolge, ZöR 59 (2004) 135 ; H.-D. Treviranus, Vienna Convention on Succession of States in Respect of Treaties, EPIL 4 (2000) 1306 ; I. Ziemele, State Continuity and Nationality: The Baltic States and Russia. Past, Present and Future as Defined by International Law (2005); A. Zimmermann, Staatennachfolge in völkerrechtliche Verträge (2000).
State Responsibility
P. Allott, State Responsibility and the Unmaking of International Law, HILJ 29 (1988) 1 ; M. Bedjaoui, Responsibility of States: Fault and Strict Liability, EPIL 4 (2000) 212 ; J. Crawford/S. Olleson, The Continuing Debate on a UN Convention on State Responsibility, ICLQ 54 (2005) 959 ; J. Crawford/J. Peel/S. Olleson, The ILC’s Articles on
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Responsibility of States for Internationally Wrongful Acts: Completion of the Second Reading, EJIL 12 (2001) 963 ; K. Zemanek, Responsibility of States: General Principles, EPIL 4 (2000) 219 .
Outbreak of Hostilities
B. Broms, The E ect of Armed Conflicts on Treaties. Preliminary Reports, Annuaire IDI 59 (1981 I) 224 ; Ch.M. Chinkin, Crisis and the Performance of International Agreements: The Outbreak of War in Perspective, Yale JWPO 7 (1981) 177 ; J. Delbrück, War, E ect on Treaties, EPIL 4 (2000) 1367 ; K. Partsch, Armed Conflict, EPIL 1 (1992) 249 ; A. Randelzhofer, Use of Force, EPIL 4 (2000) 1246 ; A. Remiro Brotons, Los e ectos del conflicto armado sobre los tratados (consideraciones sobre la resolucion aprobada por el Instituto de Derecho Internacional en la session de Helsinki 1985), in: Liber Amicorum J.P. Montero (1988) 1177 .
The basis of this commentary was prepared by Alison Wiebalck.
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CONTENTS
Paras.
A. Background ..........................................................................................
History ..............................................................................................
4
B. Interpretation of Article ..............................................................
5
1.
Areas Mentioned ...............................................................................
5
a)
State Succession ............................................................................
6
b)
State Responsibility ......................................................................
8
c)
Outbreak of Hostilities .................................................................
9
2.
Relationship to the Convention .........................................................
11
C. Appreciation .........................................................................................
14
A. BACKGROUND
1. Introduction
1 State succession. Under the Roman civil law notion of inheritance, later introduced into international law by Grotius,1 the rights and duties of the predecessor passed ipso iure to the successor. General international law accepted universal succession until it was challenged in the 19th century by the “clean slate” or tabula rasa-thesis which held that a new State be free of all rights and obligations (including treaties) save those it assumed anew.2 When the matter of State succession was taken up by the ILC, neither the universal nor the tabula rasa theories had found uncritical favour.3
2State responsibility. In the Middle Ages treaties specified the liabilities and procedures to be followed in case of breach of an international obligation. Later, rules were developed restricting self-help or private reprisals, although the classic notions of reparation and restitution were retained.4 Post-1945 structural changes in international society—from the exponential increase in
1 De jure belli et pacis, lib. II, cap. ix, tit. xii.
2 Craven, EJIL 9 (1998) 142, 147 f.
3State succession was placed on the ILC’s agenda at its first session in 1949 following a recommendation by Lauterpacht, YBILC 1949 I 53. See the statement in the ILC by Elias, YBILC 1963 II 284, para. 7; O’Connell, State Succession II 25 (“the formulae of the ‘clean slate’ and ‘moving treaty boundaries’ tend to transform an interpretative guide
into an inflexible criterion, and hence to prejudge the question”). 4 Brownlie, Principles 436 f.
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States and their growing interdependence to the rise of international decision-
making fora—have also led to the emergence of obligations owed not just to
individual States but to the international community as a whole.5
Outbreak of hostilities. Traditionally, war excluded the continuing operation
3
of law, thus implying that all legal relations between States were disrupted. In
time, the position was reformulated: in cases of war, international law neither
automatically kept nor, conversely, annulled treaties regardless of the e ects
produced. Instead, it dealt with such problems on a case-to-case basis.6
2. History
The ILC discussed issues of State succession in 1963, concluding that the topic
4
lay outside the law of treaties.7 The matter was taken up again in 1966 when, in the context of the validity and continuance of treaties (Article 42, q.v.), it was proposed to include a reservation on the e ects of State succession on treaties.8 A similar reservation was made in respect of State responsibility.9 In both cases, the ILC wished to make clear that it was not prejudging its future work on these subjects.10 On the other hand, ILC members opposed any mention of the e ect of hostilities on treaties since the ILC “was legislating for peaceful relations”.11 A general reservation (going further than Article 42. para. 2, N. 10–11) was favored since the consequences of State succession were not confined to problems of invalidity and termination.12 As a result, Waldock introduced a new draft article referring to State succession and international responsibility, which was adopted without further comment by the ILC in 1966.13 In 1968 the Vienna Conference accepted the proposals of various States to include the terms “outbreak of hostilities between States” on the grounds that the omission of any clause relating to the e ects
5 Zemanek, EPIL 4 (2000) 219 .
6 Delbrück, EPIL 4 (2000) 1367, 1368; McNair, Law of Treaties 693 .
7 See the Report of the Sub-Committee on State Succession, YBILC 1963 II 2609 ; the statements by Rosenne, YBILC 1963 II 265, 288; and Tabibi, ibid. 285.
8 Statement by Jiménez de Aréchaga, YBILC 1966 I/2 297, para. 25. 9 Ago and Waldock, ibid. 302, paras. 16 and 19, respectively.
10Briggs, ibid. para. 20.
11Lachs, ibid. para. 25; Rosenne, Developments 42 at n.33. See also the ILC Report 1963, YBILC 1963 II 189, para. 14 (“[t]he Commission considered that the study of this topic would inevitably involve a consideration of the e ects of the provisions of the Charter concerning the threat or use of force upon the legality of the particular hostilities in question”).
12Statements by Lachs, YBILC 1966 I/2 301, para. 11; and Rosenne, ibid. para. 23.
on treaties of an outbreak of hostilities “could create uncertainty”.14 Article 73 was adopted in 1969 by 100 votes to none.15
B. INTERPRETATION OF ARTICLE 73
1. Areas Mentioned
5 Article 73 concerns three areas of international law, namely the succession of States (N. 6), the international responsibility of a State (N. 8), and the outbreak of hostilities between States (N. 9).
a) State Succession
6According to Article 2, subpara. 1(b) of the Vienna Convention on the Succession of States in Respect of Treaties of 1978, State succession refers to “the replacement of one State by another in the responsibility for the international relations of territory”.16 It occurs in a wide range of situations, including accession, fusion of two or more States creating a new State, annexation, dissolution and dismemberment, division or dismemberment, occupation, re-unification, federation, independence, and separation. As changes of territory vary, so, too, do the legal problems of succession.17
7Common to each set of circumstances is the fact that, when one State succeeds wholly or in part to the legal personality and territory of another, treaties may be a ected.18 The manner in which this occurs depends on the particular circumstances of the succession and the type of treaty itself.19 Issues arise as to what extent successor States are bound by the treaties of their predecessors and as to whether another party to the treaty remains under the same obligation towards successor States, i.e., whether, and if so which, rights and duties based on treaties are transferable.20 The 1978 Vienna Convention seeks to regulate four di erent cases of succession.21 However, subsequent State
14See the statement by Nahlik of the Polish delegation, OR 1968 CoW 452, para. 15; the amendments proposed by Hungary, Poland and Switzerland, OR Documents 199, para. 635; adopted at OR 1968 CoW 453, para. 30.
15OR 1969 Plenary 127, para. 17.
16Of 23 August 1978, entered into force in 1996 (ILM 17 [1978] 1488); see also Article 2, subpara. 1(b) of the Vienna Convention on Succession of States in Respect of State Property, Archives and Debts of 1983, not yet in force (ILM 22 [1983] 306).
17See the statement in the ILC by Castrén, YBILC 1963 II 291.
18Brownlie, Principles 620
19Reuter, Introduction N. 173.
20Statement by Tabibi in the ILC, YBILC 1963 II 285.
21I.e., (i) succession in respect of part of a territory (Article 15, the “moving boundary” principle); (ii) newly independent States (as defined by Article 2, subpara. 1[f]; see Articles 16–30, including the tabula rasa or “clean slate” principle, with the right to choose whether
ZACHARIAS
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901
practice has shown that succession in respect of treaties is in fact dealt with
on a case by case analysis.22
b) State Responsibility
International responsibility is borne by a State for conduct in breach of its
8
international obligations.23 Such breach constitutes an international wrong
from which follow certain legal consequences for the o ending State, the
injured State, and in some circumstances for the international community
as a whole.24 The usual reaction to an international wrong is for the injured
State to compel (in accordance with international law) the o ending State to
fulfill its obligations or to obtain reparation from that State.25 As a corollary
to the increasing interdependence of States, the international responsibility
of a State has developed in the direction of liability without fault: a State’s
act is wrongful if it constitutes a breach of an international obligation, i.e.,
if the act was not in conformity with the law, which is distinct from the
concept of fault.26
The ILC Draft 2001 on Responsibility of States for Internationally Wrongful Acts is
not concerned with defining the content of international obligations the breach of
which gives rise to responsibility (which is the function of the primary rules). Instead,
its emphasis is on the secondary rules, namely, to determine whether that obligation
has been violated, and what should be the consequences of that violation.27 While it
appears unlikely that the Draft will eventually be cast in a convention (Issues of Custom-
ary International Law, N. 21–27), the Court has referred to these articles, as have other
tribunals, all of which suggest their potential long-term influence.28
c) Outbreak of Hostilities
Since 1945 the concept of war has largely been substituted by that of
9
international armed conflict which has a broader, less subjective, field of
to participate in a treaty by “notification of succession” in the case of multilateral treaties or by agreement in the case of bilateral treaties); (iii) uniting of States (Articles 31–33, continuity or universal succession); and (iv) separation of States (Articles 34–37, continuity in respect of all the successors).
22Aust, Modern Treaty Law 369 (“the Convention is largely an example of the progressive development of international law”); also Hailbronner, EJIL 1 (1991) 18, 33 .
23Aust, ibid. 361 f.
24See, e.g., Articles 42 and 48, subpara. 1(b) of the ILC Draft 2001 on Responsibility of States for Internationally Wrongful Acts, YBILC 2001 II 29 , 59 .
25See also Zemanek, EPIL 4 (2000) 219 .
26See Bedjaoui, EPIL 4 (2000) 212 .
27YBILC 2001 II 29 .
28E.g., the Gabcikovo-Nagymaros (Hungary/Slovakia) Case, ICJ Reports 1997 38 f, para. 47; the Rainbow Warrior (New Zealand/France) Case, RIAA 20 (1990) 217; Crawford/Peel/ Olleson, EJIL 12 (2001) 963 at n. 28.
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application.29 Article 2, para. 4 of the UN Charter, prohibiting the use or threat of force in international relations, implies the use of armed force.30 The term “outbreak of hostilities” would cover all such situations. It appears to relate to situations between States which are severe enough to a ect the treaty relations between States.
In 1968 the Vienna Conference preferred the terms “outbreak of hostilities” to “armed conflict of an international character”, though no definition was given.31 Previously, the ILC considered in its Report of 1966 that the words “outbreak of hostilities” referred to a “state of facts [which] may have the practical e ect of preventing the application of the treaty [and] that questions may arise as to the legal consequences of an outbreak of hostilities with respect to obligations arising from treaties”.32
10In general, no rule appears to exist in international law which deals with the e ects of hostilities on treaties.33 The variety of functions which treaties perform implies that the e ect on treaties of hostilities between States will vary depending on the extent and kind of hostilities and the attitudes and intentions of the parties, on the one hand, and according to the type or object and purpose of the treaty involved, on the other.34 Thus, the use of force may render impossible the execution of treaty obligations.35 Or a distinction may have to be drawn between treaties presupposed to apply in normal circumstances (e.g., treaties of friendship) and treaties specifically concluded to apply in the event of hostilities (e.g., humanitarian treaties).36
In 2000 the ILC identified the topic “E ects of Armed Conflicts on Treaties” for inclusion in its long-term programme of work. In 2004 the ILC appointed Ian Brownlie as Special Rapporteur who as from 2005 has so far prepared three reports.37
29Partsch, EPIL 1 (1992) 250 f. Common Article 2 of the four 1949 Geneva Conventions states that the Conventions “shall apply to all cases of declared war or of any other armed conflict [of an international character] even if the state of war is not recognized by one of them”. The term “armed conflict” was referred to in Article 1, para. 2 of the 1977 Protocol II Additional to the Geneva Conventions which does “not apply to situations of internal disturbances and tensions . . . as not being armed conflicts”; see also Klein, Statusverträge 295 , 319.
30Randelzhofer, EPIL 4 (2000) 1249.
31T his term was proposed by the Greek delegation in Vienna, OR 1968 CoW 453, para. 32, though the Drafting Committee preferred “hostilities”, ibid. 484, para. 27.
32YBILC 1966 II 267, para. 2.
33Delbrück, EPIL 4 (2000) 1369. See here also Article 52.
34Broms, Annuaire IDI 59 (1981 I) 226; di erently Capotorti, RC 134 (1971 III) 437 .
35Delbrück, EPIL 4 (2000) 1371.
36Statement in Vienna by Nahlik of the Polish delegation, OR 1968 CoW 452, para. 16.
37See Brownlie Report III of 2007, YBILC 2007 II 154, paras. 266 . See the text of the draft articles on E ects of Armed Conflicts or Treaties adopted by the ILC on first reading, YBILC 2008 II 82 ff.
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903
2. Relationship to the Convention
The provisions of the present Convention shall not prejudge the three areas 11 of international law mentioned, i.e., State succession, State responsibility and
the outbreak of hostilities. These matters lie outside the Convention. While they may, and often do, pertain to treaties in general and to the Convention provisions in particular, the Convention will not take them into account. The reasons are: (i) that the Convention applies specifically to the form of treaties and not to the e ects of other areas of international law on them;38 and (ii) because these areas raise questions of principle which the ILC considered should be discussed elsewhere.
The term “prejudge” is employed in the Convention only in Article 73, the Vienna Conference considering that it was closer to the terms used in the other language versions and “more suitable in the context”.39 Other Convention provisions prefer the terms “without prejudice” (e.g., Article 30, para. 5, N. 16), thereby implying that they are establishing one rule without interfering with another.
The Convention shall not prejudge any question that may arise in regard 12 to a treaty from the three areas mentioned (N. 5). Article 73 leaves open which legal e ects these areas may have on a treaty between State parties. From the point of view of the Convention, and having regard to Article 42, para. 2 (q.v. N. 10–11), it is in particular not possible to claim that State succession, State responsibility or the outbreak of hostilities can serve as a ground to terminate a particular treaty or suspend its operation (unless the treaty specifically provides therefore).40
Apart from Part V, State succession may concern various other Convention topics, such as reservations (Articles 19–23, q.v.);41 the legal relations of third States to a given treaty with either the predecessor State or the successor State (Articles 34–37, q.v.);42 or the ability of a State to discharge its international obligations in case of a substantial loss or gain of territory (Article 62, q.v.).43
Issues of State responsibility arise, e.g., in respect of a State’s conclusion or application of a treaty which is incompatible with its obligations towards another State under another treaty (Article 30, N. 16); or as regards the termination or suspension of the operation of a treaty as a consequence of its breach (Article 60, N. 26). In respect of the relation with Part V, the Court has more generally distinguished in the Gabcikovo-Nagymaros(Hungary-Slovakia) Case as follows: the determination whether or not a treaty is in force,
38Statement in the ILC by Ago, YBILC 1966 I/2 302, para. 31.
39Statement in Vienna by the Chairman of the Drafting Committee, Yasseen, OR 1968 CoW 484, para. 28.
40See the situation in the Gabcikovo-Nagymaros (Hungary/Slovakia) Case, ICJ Reports 1997 38, para. 47, regarding State responsibility.
41See the statement in the ILC by Rosenne, YBILC 1966 I/2 302, para. 23.
42Id., YBILC 1963 II 288.
43See the statement in the ILC by Castren, YBILC 1963 II 291.
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or whether it has been properly suspended or denounced, is to be made pursuant to the law of treaties. But the evaluation of the extent to which the suspension or denunciation of a treaty contrary to the law of treaties involves the responsibility of the o ending State is to be made under the law of State responsibility.44
The outbreak of hostilities may lead to the termination of treaties on the grounds of an impossibility of performance (Article 61, q.v.) or of a fundamental change of circumstances (Article 62, q.v.).45 Such hostilities do not appear to be a ground on which a treaty can be terminated per se, at least there is no presumption that hostilities have the e ect of terminating the operation of treaties between the parties to the conflict.46
13The eighth preambular para. (Preamble, N. 16) contains a reservation clause according to which the rules of customary law will continue to govern questions not regulated by Convention. These include the areas referred to in Article 73.
C. APPRECIATION
14It would have been overtaxing the Convention to provide exhaustively for all the consequences for the law of treaties of the matters mentioned in Article 73. The distinctions established therein, while possibly appearing artificial in their absolute nature, were based on entirely practical reasons.47
44ICJ Reports 1997 38 f, para. 47.
45Conforti/Labella, EJIL 1 (1990) 58.
46See the statement in the ILC by Ago, YBILC 1966 I/2 298, para. 44; Aust, Modern Treaty Law 310. See Article 2 of the Resolution of the Institut, Annuaire IDI, 61 (1986 II) 279 .
Diplomatic and consular relations and the conclusion of treaties
The severance or absence of diplomatic or consular relations between two or more States does not prevent the conclusion of treaties between those States. The conclusion of a treaty does not in itself a ect the situation in regard to diplomatic or consular relations.
Article 74 Relations diplomatiques ou consulaires et conclusion de traités
La rupture des relations diplomatiques ou des relations consulaires ou l’absence de telles relations entre deux ou plusieurs Etats ne fait pas obstacle à la conclusion de traités entre lesdits Etats. La conclusion d’un traité n’a pas en soi d’e et en ce qui concerne les relations diplomatiques ou les relations consulaires.
Artikel 74 Diplomatische und konsularische Beziehungen und der Abschluss von Verträgen
Der Abbruch oder das Fehlen diplomatischer oder konsularischer Beziehungen zwischen zwei oder mehr Staaten steht dem Abschluss von Verträgen zwischen diesen Staaten nicht entgegen. Der Abschluss eines Vertrags ist als solcher ohne Wirkung in bezug auf diplomatische oder konsularische Beziehungen.
Materials:
Minutes: OR 1968 CoW 480 f, 382 , 481 f; OR 1969 Plenary 108, 122, 125 .
Vienna Conference Vote: 88:2:10
Selected Literature (in addition to the literature mentioned in Article 63, q.v.):
N. Angelet/C. Clavé, Article 74, in: Corten/Klein (eds.) 2639 ; R. Bot, Non-Recogni- tion and Treaty Relations (1968); V. Epps, Review Essay (on: Th.D. Grant, The Recognition of States: Law and Practice in Debate and Evolution [1999]), AJIL 95 (2001) 252 ;
906
article
J.Frowein, Non-Recognition, EPIL 3 (1997) 627 ; Id., Recognition, EPIL 4 (2000) 33 ; C. Hillgruber, The Admission of New States to the International Community, EJIL 9 (1998) 491 ; S. Murphy, Democratic Legitimacy and the Recognition of States and Governments, ICLQ 48 (1999) 545 .
The basis of this commentary was prepared by Alison Wiebalck.
diplomatic and consular relations and the conclusion of treaties
907
CONTENTS
Paras.
A. Background ........................................................................................
even if diplomatic relations had been severed.4 The Conference considered that the provision should be separated from Article 63 and included in the Miscellaneous Provisions of Part VI, though a number of delegations feared that this could prejudice issues of non-recognition. This explains the sizeable number of abstentions in the final vote: Article 74 was adopted in 1969 by 88 votes to two, with ten abstentions.5
B. INTERPRETATION OF ARTICLE 74
3As in Article 63 (q.v., N. 3), diplomatic and consular relations lie at the center of Article 74. These terms would, therefore, appear to have the same meaning in both articles.
It is through implied or express recognition that the entity concerned acquires the legal status of a sovereign State under international law.6 One of the privileges pertaining to recognised States is the right to establish diplomatic relations (though there is no obligation to do so).7 Thus, diplomatic relations normally imply recognition. Nonrecognition, on the other hand, bars the establishment or continuance of diplomatic relations. There can be a duty of non-recognition,8though there is no corresponding duty of recognition.
4The severance of pre-existing diplomatic or consular relations has been discussed in Article 63 (q.v. N. 4). The absence of such relations between two or more States (in fact any State)9 can be the result of non-recognition, or it can be for other, e.g., political or economic reasons.10 It is in this situation of inexistent relations where Article 73 assumes that such States may be desirous to conclude a bior multilateral treaty.
5Thus, the absence of such relations does not prevent the conclusion of treaties (as in Articles 11–16, q.v.) between those States.11
4OR 1968 CoW 383, para. 49. The amendment at OR Documents 185, para. 549, stated: “[t]he severance of diplomatic relations between two or more States does not prevent the conclusion of treaties between those States. The conclusion of a treaty does not a ect the
situation in regard to diplomatic relations”.
5OR 1969 Plenary 127, para. 17. At the Conference, the provision was numbered Article 69bis. For the debate, see OR 1968 CoW 383, para. 49 ; and 480 f (in particular the state-
ments by the delegations of the then United Arab Republic, Iraq, Algeria, Syria and Kenya).
6 Hillgruber, EJIL 9 (1998) 492 .
7 Frowein, EPIL 4 (2000) 35; Denza, Diplomatic Law 20. Briggs, Recognition of States, AJIL 43 (1949) 119.
8 See the Namibia Advisory Opinion, ICJ Reports 1971 16 .
9As opposed to Article 63 (q.v., N. 3), concerning the severance of relations between treaty parties.
10Denza, Diplomatic Law 400.
11See E. Vierdag, The Time of the “Conclusion” of a Multilateral Treaty: Article 30 of the Vienna Convention on the Law of Treaties and Related Provisions, BYBIL 59 (1988) 89,
diplomatic and consular relations and the conclusion of treaties 909
In practice, States will more often than not refrain from concluding treaties when diplomatic or consular relations are absent, though it is not excluded that they will do so, not least as a new treaty might contribute to the easing of the tension.12 On the other hand, concluding a treaty may be factually impossible on account of the circumstances surrounding the severance of diplomatic or consular relations, e.g., the outbreak of hostilities (see Article 73, N. 9–10),13or if the diplomatic channels required
for conclusion are missing.14
In its second sentence, Article 74 provides that the conclusion of a treaty
6
does not in itself a ect the situation in regard to diplomatic or consular relations which will depend on other, in particular political conditions. It follows—this was indeed the purpose of the second sentence15—that in the absence of an unequivocal intention to the contrary, the conclusion of a treaty cannot imply a State’s recognition.16 In other words, States are at liberty to enter into legal treaty relations despite political di erences. Put di erently, even unrecognised States are not outside the Convention.17
The two sentences in Article 74 appear as the inverse of one another, the first stating what the severance of diplomatic or consular relations does not do as regards conclusion; and the second stating what conclusion cannot do as regards diplomatic or consular relations.18 It has been argued that the second sentence is implicit in the first.19
where it is argued that conclusion in the context of Article 74 must refer “to the whole process of treaty-making, including the expression of consent to be bound”.
12See the statement in Vienna by the Polish delegation, OR 1968 CoW 385, para. 74; Bot, Non-Recognition 3; the examples given by James, Diplomatic Relations 378, 385, e.g., ibid. 378, the citation by Sir Winston Churchill, according to which a State concludes a treaty “to secure a convenience not confer a compliment”.
13See Article 25 of the Harvard Draft, AJIL 29 (1935) Supplement 1058: “if the severance of [diplomatic] relations is followed by the outbreak of war . . . it is the e ect of war and not of the severance of diplomatic relations which then must determine the status of the treaties between the belligerent parties”.
14See the statement in the ILC by Ago, YBILC 1966 I/2 108, para. 61.
15See the statement in Vienna by the Chilean delegation, OR 1968 CoW 383, para. 50. But see the Syrian delegation, OR 1969 Plenary 127, para. 18 (“the words ‘or absence’ [might] inject the highly political question of recognition into the legal question of concluding treaties”).
16State practice suggests that this can apply even when that agreement relates to the establishment of consulates, Lee, Consular Law 76 f.
17See Frowein, EPIL 4 (2000) 35.
18See the statement in Vienna by the Chilean delegation which referred to the second sentence as a “necessary compliment” to the first, OR 1968 CoW 383, para. 49.
19See the statement in Vienna by the Malaysian delegation, OR 1968 CoW 384, para. 59. For Cuendet of the Swiss delegation, ibid. para. 63, “the second idea expressed . . . seemed to belong rather to the law of diplomatic relations”.
910
article
C. RESERVATIONS
7Various States have made statements in this context, though it is not clear whether they amount to reservations within the meaning of Article 2, subpara. 1(d) (q.v., N. 33–37).20According to these statements, the participation of these States “does not mean in any way recognition of Israel . . . and that furthermore, no treaty relations will arise [with] Israel”. Israel has filed objections to these statements (Reservations and Declarations to the Convention and Objections Thereto, q.v.).21
D. CONTEXT
1. Relationship to Other Provisions
8Article 74 is the logical extension to Article 63 (q.v.). If, as in Article 63, the severance or absence of diplomatic or consular relations between parties to a treaty does not e ect the legal relations established between them by that treaty, then it follows, as in Article 74, that the establishment of new legal relations by the conclusion of a new treaty must also be possible.
2. Customary Basis of Article 74
9Article 74 reflects the well established rule that the conclusion of a treaty is not incompatible with non-recognition of a State (N. 1).22 The abstaining votes at the Conference (N. 2), rather than calling this customary basis into question, would indicate some uncertainty as regards the meaning and scope of Article 74.
E. APPRECIATION
10Article 74, which usefully complements Article 63, makes it clear that the conclusion of a treaty does not depend on diplomatic or consular relations. It thereby extricates the law from politics in the freedom it gives States to entertain legal relationships with each other.23
20Namely Morocco, Syria, Algeria and Kuwait. The UK made a statement in respect of
Guatemala.
21In particular in respect of the Moroccan declaration.
22See the statements in Vienna by the delegations of Chile, OR 1968 CoW 383, para. 49; Ivory Coast, OR 1968 CoW 480, para. 62 (“article 69bis . . . was in conformity with the practice of his country”); and the United Arab Republic, ibid. para. 54.
23See the statement in Vienna by the Colombian delegation, OR 1968 CoW 385, para. 80.
Article 75
Case of an aggressor State
The provisions of the present Convention are without prejudice to any obligation in relation to a treaty which may arise for an aggressor State in consequence of measures taken in conformity with the Charter of the United Nations with reference to that State’s aggression.
Article 75 Cas d’un Etat agresseur
Les dispositions de la présente Convention sont sans e et sur les obligations qui peuvent résulter à propos d’un traité, pour un Etat agresseur, de mesures prises conformément à la Charte des Nations Unies au sujet de l’agression commise par cet Etat.
Artikel 75 Fall eines Angreiferstaats
Dieses Übereinkommen berührt keine mit einem Vertrag zusammenhängenden Verpflichtungen, welche sich für einen Angreiferstaat infolge von Massnahmen ergeben können, die auf den Angri des betre enden Staates hin im Einklang mit der Charta der Vereinten Nationen getro en wurden.
ILC Draft 1966
Article 70—Case of an aggressor State
The present articles are without prejudice to any obligation in relation to a treaty which may arise for an aggressor State in consequence of measures taken in conformity with the Charter of the United Nations with reference to that State’s aggression.
Minutes: OR 1968 CoW 453 , 484; OR 1969 Plenary 127 f.
Vienna Conference Vote: 100:0:4
Selected Literature (in addition to the literature mentioned in Articles 34 and 52, q.v.):
R. Bindschedler, Völkerrechtliche Verträge und Zwang, Revista 2 (1968) 309 ; D. Blumenwitz, Die Ostverträge im Lichte des internationalen Vertragsrechts ( ); M. Bothe, Consequences of the Prohibition of the Use of Force—Comments on Arts. 49 and 70 of the ILC’s Draft Articles on the Law of Treaties, ZaöRV 27 (1967) 507 ; H. Brosche, Zwang beim Abschluss völkerrechtlicher Verträge (1974); B. Ferencz, Aggression, EPIL 1 (1992) 58; S.S. Malawer, Imposed Treaties (1977); Ch. Tomuschat, Article 75, in: Corten/Klein (eds.) 2657 .
The basis of this commentary was prepared by Alison Wiebalck.
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case of an aggressor state
913
CONTENTS
Paras.
A. Background .........................................................................................
History .............................................................................................
2
B. Interpretation of Article 75 .............................................................
3
C. Reservation .........................................................................................
7
D. Context ...............................................................................................
8
1.
Relationship to Other Provisions ......................................................
8
2.
Matters Not Dealt With ...................................................................
10
3.
Customary Basis of Article 75 ...........................................................
11
E. Appreciation ........................................................................................
12
A. BACKGROUND
1. Introduction
Prior to the League of Nations Covenant of 1919 and the Kellogg-Briand Pact
1
of 1928 the threat or use of force was a valid instrument for the settlement of
international disputes, and a treaty forced upon a State was considered bind-
ing regardless of consent.1 With the change articulated, for example, in the
Covenant evolved the notion that such treaties should not be recognised as
legally valid (Article 52, N. 1). Nevertheless, certain classes of treaties, namely
those imposed on a State within the framework of collective international
security, were treated as exceptions distinct from those procured by coercion
for securing some national objective.2
2. History
In the context of discussions on Article 52 (q.v., N. 2) on the coercion of
2
a State by the threat or use of force, ILC members considered the imposi-
tion of certain obligations on a State guilty of aggression as an exception to the general rule that a treaty did not create obligations for third States (as
1McNair, Law of Treaties 207 . The General Treaty for the Renunciation of War is at LNTS 94, 57 . See also J. Delbrück, Structural Changes in the International System
and its Legal Order: International Law in the Era of Globalization, SZIER 11 (2001) 9. 2 Delbrück, ibid.
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in Articles 34–38, q.v.).3 The topic was taken up by Governments in their observations to the ILC on Article 35 (q.v., N. 2).4 Waldock Report VI included a first provision which aroused misgivings in the ILC in 1966, including whether the question was one of responsibility and hence beyond the scope of the draft;5 whether the reservation should be general or refer to specific articles only;6 and even whether the issue concerned “third States” at all.7 The ILC Draft 1966 contained a revised provision largely resembling today’s Article 75.8 Amendments in Vienna in 1968 to delete any reference to the term “aggression” were criticised by the Eastern European States and eventually rejected.9 Article 75, which received a politically divided welcome at the Conference,10 was nevertheless adopted in 1969 by 100 votes to none, with four abstentions.11
B. INTERPRETATION OF ARTICLE 75
3Article 75 concerns the case of an aggressor State. No definition is given of the term “aggression” which is indeed quite fluid in international law.12
3See the statements by Lachs, YBILC 1964 I 71, para. 46, and 79, paras. 60 ; and Tunkin, ibid. 71, para. 53; also Rosenne, Law of Treaties 380. On the history, see Brosche, Zwang
202 .
4I.e., Hungary, US, and the then USSR and Ukrainian SSR; Waldock Report VI, YBILC 1966 II 68 .
5YBILC 1966 I/2 60 , paras. 59 . See, e.g., the statements by de Luna, YBILC 1966 I/2 60, para. 59; Tunkin, ibid., 61, para. 69 f; and Reuter, ibid. 63, para. 91.The matter became topical as it was being alleged that the treaties concluded by the Allied Powers at the end of World War II were without e ect for Germany which was not a party to them; see Tunkin and Jiménez de Aréchaga in the ILC, YBILC 1966 I/2 61, para. 69, and at
6 See the statement by Waldock, ibid. 182, para. 40; contra Castren and Reuter at 180, para. 11, and 182, para. 31, respectively.
7 Statement by Ago, ibid. 182, para. 34, and at 67, para. 44. 8 YBILC 1966 II 268.
9Amendments by Japan and Thailand, OR Documents 200, subparas. 645(a) and (b). See the debate at OR 1968 CoW 453 .
10In the debate, Article 75 was supported, inter alia, by the delegations of Thailand, the then Ukrainian SSR, Cuba, Congo (Brazzaville and Democratic Republic), Bulgaria, the then USSR, Poland, Romania, United Arab Republic, Kenya and Iraq. It was criticised, inter alia, by Germany, UK, Switzerland, US, and Canada, ibid., 453 .
11OR 1969 Plenary 127, para. 19.
12Article 1 of the UN Charter includes “the suppression of acts of aggression” among its purposes, the determination of which falls to the Security Council according to Article 39. Note that the Rome Statute of the International Criminal Court of 1998 mentions aggression among the four most serious crimes while reserving the definition of this crime (Article 5). On the subject generally, see Ferencz, EPIL 1 (1992) 58 ; Frowein/Krisch, Article 39, in: Simma (ed.), Charter of the United Nations N. 13 .
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915
For present purposes, it appears su cient to state that aggression covers any
“threat or use of force against the territorial integrity or political independence
of any State” within the meaning of Article 2, para. 4 of the UN Charter.
Whether in a given case a State is committing such aggression will depend
on the UN Security Council which according to Article 39 of the Charter is
called upon to determine any “act of aggression”.13
Furthermore, Article 75 relates to any obligation in relation to a treaty
4
which may arise for that aggressor State (N. 3). It is left open whether a
treaty was concluded with that State—e.g., a peace treaty—or whether one
or more treaty obligations are being imposed on the aggressor State without
it being a party.14 The State in question is required to accept, not the treaty
as such, but an obligation arising out of it.
Article 75 therefore calls in question two important principles of the Convention: (i)
the peace treaty may involve some form of coercion of the vanquished by the victor
and thus contravene Article 52 (q.v.) prohibiting coercion of a State by the threat or
use of force; and (ii) the aggressor State may find a treaty obligation being imposed on
it without having consented thereto—in breach of Articles 34–37 (q.v.).
This treaty obligation is qualified in that it arises for the aggressor State solely
5
in consequence of measures taken in conformity with the Charter of the
United Nations. Such measures are a priori ordered under Chapter VII of the UN Charter, in particular binding decisions of the Security Council.15 They may also comprise individual or collective measures of self-defence taken under Article 51 of the Charter.16 The measures must have been taken with reference to that State’s aggression, thereby further limiting the scope of Article 75.17
Thus, there are limits on the imposition of treaty obligations without the consent of an aggressor State.18 Article 75 does not give a State victim of an aggression a free hand to
13Statement in Vienna by Vallat of the UK delegation, OR 1968 CoW 454, para. 47. See also the statement in the ILC by Bartos, YBILC 1966 I/2 70, para. 73 (“the aggression [had to be determined] beyond doubt and [that] there was no dispute regarding the identity of the aggressor”).
14Aust, Modern Treaty Law 328.
15See the Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya/USA) (Provisional Measures) Case, ICJ Reports 15, para. 39 (“Libya and the United Kingdom . . . are obliged to accept and carry out the decisions of the Security Council in accordance with Article 25 of the Charter”).
16See the statements in Vienna by the delegations of Germany, OR 1968 CoW 454, para. 45; Switzerland (Bindschedler), ibid. 454, para. 49; and the US (Kearney), ibid. 456, para. 64.
17See the statements in the ILC by Jiménez de Aréchaga and Reuter, YBILC 1966 I/2 64, para. 7 , and 183, para. 33, respectively.
18Statements by Castren and Jiménez de Aréchaga, ibid. para. 3, and at 64, para. 11, respectively.
ZACHARIAS
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deal with the aggressor State.19 If force is employed or threatened contrary to the UN Charter, the treaty will be rendered void according to Article 52 (q.v.).20
6The core of Article 75 is that the provisions of the present Convention are without prejudice to these obligations imposed on the aggressor State: all such measures taken in conformity with the UN Charter are generally exempted from the obligations arising under the Convention and have their own, independent existence.21
For instance, commercial sanctions may be imposed on an aggressor State in accordance with Article 41 of the UN Charter; other States may then be obliged no longer to implement certain treaties concluded with this State, or even to bring about their termination.22
Article 75 thus not only excludes the application of Articles 34–37and 52 (N. 4), but also of Articles 4 and 28 (q.v.) governing the retroactive application of treaties insofar as the “obligation” under Article 75 may relate to treaties concluded by the aggressor State with other States before the “measures [were] taken in conformity with the Charter of the United Nations”.23
C. RESERVATION
7Germany made a statement in this context, though it is not clear whether it amounts to a reservation (Reservations and Declarations to the Convention and Objections Thereto, q.v.).24 The statement reflects the view that Article 75 has no retroactive e ect qua contractual obligation (N. 9).
19But see R. Wetzel, Verträge zugunsten und zu Lasten Dritter nach der Wiener Vertragsrechtskonvention (1973) 181.
20Statements in the ILC by Verdross and el-Erian, YBILC 1966 I/2, 62, para. 77, and at 65, para. 20, respectively.
21See the statement in Vienna by the Polish delegation, OR Plenary 1969 127 f, para. 20; also of the German delegation, ibid. 454, para. 44 (“[Article 75] should [not] create a convenient loophole for the termination of treaties”); the statement in the ILC by Waldock, YBILC 1966 I/2 182, para. 41 (“[i]f the article . . . were . . . to confine the reservation to particular draft articles, it would encourage a search for other methods of evasion . . . [such] as a fundamental change of circumstances”).
22Capotorti, RC 134 (1971 III) 441.
23See the statement in Vienna by the Polish delegation, OR Plenary 1969 128, para. 20, according to which “[Article 75] covered two kinds of treaties, those which might be imposed upon an aggressor State and those previously concluded by an aggressor State”.
24“The Federal Republic of Germany interprets ‘measures taken in conformity with the Charter of the United Nations’, as referred to in Article 75, to mean future decisions by the Security Council of the United Nations in conformity with Chapter VII of the Charter for the maintenance of international peace and security”.
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D. CONTEXT
1. Relationship to Other Provisions
Article 75 is an exception both to Articles 34–37(q.v.), i.e., in those cases where
8
the aggressor State is not a party to the treaty obligations, and to Article 52
(q.v., N. 15), where the aggressor State, albeit unwillingly, is a party.25
Virtually all States have ratified the UN Charter, for which reason it has been argued
that Article 75 does not contradict the pacta tertiis-rule, since UN members (including
the aggressor State) have accepted in advance any measures imposed in the context of
Chapter VII.26 However, in view of the strict conditions required, e.g., by Article 35 (q.v.,
N. 4) for the imposition of obligations on third parties, it appears doubtful whether
ratification of the UN Charter by the aggressor State qua UN member in itself implies
acceptance by that State of an undetermined number of treaty obligations (N. 4). To
the contrary, therefore, treaty obligations within the meaning of Article 75 remain res
inter alios acta for the aggressor State—and Article 75 remains an exception to Articles
34–38.
To the extent that Article 75 is not declaratory of customary international law
9
(N. 11), it must be read together with Articles 4 and 28 (q.v.) in that it has
no retroactive e ect and cannot serve to justify a new or further “obligation”
based on earlier measures under Chapter VII of the UN Charter. Rather, the
“obligation” under Article 75 can only arise for a State in respect of aggressions
committed after it has established its consent to be bound by the Conven-
tion.27 Conversely, once Article 75 is applicable, it may retroactively a ect
treaties concluded by the aggressor State with other States (N. 6 i.f.).
2. Matters Not Dealt With
Article 75 does not express itself on the nature, validity and execution of the
10
treaty from which the “obligation” arises for the aggressor State.28 While the
application of the Convention is ex hypothesi excluded for such purposes (N. 6),
it appears di cult in this respect to resort to general treaty law since the latter
largely corresponds with the Convention (Issues of Customary International
Law, N. 52–61).
25See the statements in the ILC, inter alia, by Lachs, Ago and Waldock, YBILC 1966 I/2 69 ; see also Verdross/Simma N. 751.
26Cahier, RC 143 (1974 III) 651; Neuhold, BDGVR 28 (1988) 160 (“die Problematik . . . lässt sich . . . mit . . . der Unterwerfung der Mitgliedstaaten unter das System der Vereinten Nationen durch ihre Zustimmungserklärung zur Charta lösen”).
27Ress, Festschrift Doehring 844 f; Ress/Bröhmer, Article 53, in: Simma (ed.), Charter of the United Nations N. 94 f.
28See, e.g., the statements in the ILC by Jiménez de Aréchaga, Castren, Rosenne and Waldock, YBILC 1966 I/2 64, para. 10; at 180, paras. 10 and 19; and at 183, para. 42, respectively.
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article
3. Customary Basis of Article 75
11As an exception to the pacta tertiis-rule in Articles 34–37and to Article 52—all of which are well-established in international law—Article 75 would require a sound basis of State practice in order to qualify as a customary rule. While in past practice treaty obligations may have arisen for aggressor States as a result of measures imposed under Chapter VII of the UN Charter, it is difficult to assess whether or not such obligations conformed to the later Article 75.29 Much will depend on the nature of the measure imposed in a given case by the Security Council (N. 5). On the whole, it would appear at most that Article 75 is crystallising into a new customary rule.30
E. APPRECIATION
12Article 75 is inextricably bound up with the UN Charter. It depends in particular on the Security Council which enjoys complete freedom in examining in the light of all relevant circumstances of a case whether a State has committed aggression.31 As such, Article 75 has a rather limited scope. As one of the obviously “political” provisions of the Convention, it has attracted much criticism;32 in particular, it has been regarded as “unnecessary”33 and “obscure”.34 Indeed, as Waldock pointed out in the ILC, Articles 35 and 52 (q.v.) in fact su ciently covered the principle in Article 75.35 Still, stripped of the highly charged political context in which it arose, the principle which could be said to underlie Article 75 is that an aggressor State should not be able to gain any profit (in this case in the form of the provisions of the Convention) from the aggression it has committed. Nemo commodum capere potest de iniuria sua propria.
29See also Tomuschat, RC 241 (1993 IV) 243 f.
30See Ress, Festschrift Doehring 844, for whom Article 75 is not part of customary international law; Tomuschat, Article 75, N. 7 (“[l]’article 75 ne codifie point une règle coutumière préexistante”).
31Capotorti, RC 134 (1971 III) 441 (“la priorité . . . de toute mesure prise à l’égard d’un Etat agresseur sur la base de la Charte des Nations Unies”).
32Verdross/Simma N. 773 at n. 34 (“wie ein erratischer Block die politische Neutralität der Wiener Konvention durchbricht”); Blumenwitz, BDGVR 28 (1988) 137 f.
33See the statements in Vienna by the delegations of Switzerland (Bindschedler), OR 1968 CoW 454, para. 49; the UK (Vallat), ibid. para. 47; and Canada, ibid. 456, para. 68; also in the ILC by Briggs, YBILC 1966 I/2 223, para. 77; Tsuruoka, ibid. para. 81; and Waldock, ibid. 224, para. 82. See also Brosche, Zwang 209.
34Tomuschat, RC 241 (1993 IV) 244.
35YBILC 1964 I 79, para. 67; and YBILC 1966 I/2 72, para. 8.
ZACHARIAS
PART VII
DEPOSITARIES, NOTIFICATIONS, CORRECTIONS AND REGISTRATION
Article 76
Depositaries of treaties
1.The designation of the depositary of a treaty may be made by the negotiating States, either in the treaty itself or in some other manner. The depositary may be one or more States, an international organisation or the chief administrative o cer of the organisation.
2.The functions of the depositary of a treaty are international in character and the depositary is under an obligation to act impartially in their performance. In particular, the fact that a treaty has not entered into force between certain of the parties or that a di erence has appeared between a State and a depositary with regard to the performance of the latter’s functions shall not a ect that obligation.
Article 76 Dépositaire des traités
1.La désignation du dépositaire d’un traité peut être e ectuée par les Etats ayant participé à la négociation, soit dans le traité lui-même, soit de toute autre manière. Le dépositaire peut être un ou plusieurs Etats, une organisation internationale ou le principal fonctionnaire administratif d’une telle organisation.
2.Les fonctions du dépositaire d’un traité ont un caractère international et le dépositaire est tenu d’agir impartialement dans l’accomplissement de ses fonctions. En particulier, le fait qu’un traité n’est pas entré en vigueur entre certaines des parties ou qu’une divergence est apparue entre un Etat et un dépositaire en ce qui concerne l’exercice des fonctions de ce dernier ne doit pas influer sur cette obligation.
Artikel 76 Depositär von Verträgen
1.Der Depositär eines Vertrags kann von den Verhandlungsstaaten im Vertrag selbst oder in sonstiger Weise bestimmt werden. Einzelne oder mehrere Staaten, eine internationale Organisation oder der leitende Verwaltungsbeamte einer internationalen Organisation können Depositär sein.
2.Die Aufgaben des Depositärs haben internationalen Charakter; der Depositär ist verpflichtet, diese Aufgaben unparteiisch wahrzunehmen. Insbesondere wird
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diese Verpflichtung nicht davon berührt, dass ein Vertrag zwischen einzelnen Vertragsparteien nicht in Kraft getreten ist oder dass zwischen einem Staat und einem Depositär über die Erfüllung von dessen Aufgaben Meinungsverschiedenheiten aufgetreten sind.
ILC Draft 1966
Article 71—Depositaries of treaties
1.The depositary of a treaty, which may be a State or an international organisation, shall be designated by the negotiating States in the treaty or in some other manner.
2.The functions of a depositary of a treaty are international in character and the depositary is under an obligation to act impartially in their performance.
Minutes: OR 1968 CoW 457 , 465 , 485 f, 488; OR 1969 Plenary 129 f.
Vienna Conference Vote: 105:0:0
Selected Literature:
C-H
L. Caflisch, Article 76, in: Corten/Klein (eds.) 2679 ; J.A. Frowein, Some Considerations Regarding the Function of the Depositary, ZaöRV 27 (1967) 533 ; S. Gamma, Les conventions de la CIEC [Commission Internationale de l’Etat civil] et leur dépositaire: détour par les “clauses de style”, in: Mélanges à l’occasion de la 50ème Assemblée générale de la Commission Internationale de l’Etat civil (1997) 17 ; L. Griesbach, Die Stellung des Depositars von Kollektivverträgen (1973); H.H. Han, The UN Secretary-General’s Treaty Depositary Function: Legal Implications, Brooklyn JIL 14 (1988) 549 ; L.L. Hazou, A Survey of Depositary Functions in Respect of the Caracas Convention on the Law of the Sea, Journal MLC 1 (1981) 485 ; F. Horn, Certain Questions Relating to the Functions of Depositaries of Treaties, Finnish YBIL 1 (1990) 286 .
I-S
P.H. Imbert, A l’occasion de l’entrée en vigueur de la Convention de Vienne sur le droit des traités—réflexions sur la pratique suivie par le Secrétaire Général des Nations Unies dans
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depositaries of treaties
923
l’exercice de ses fonctions de dépositaire, AFDI 26 (1980) 524 ; P.T.B. Kohona, Some Notable Developments in the Practice of the UN Secretary-General as Depositary of Multilateral Treaties: Reservations and Declarations, AJIL 99 (2005) 433 ; T. Modeen, The Deposit and Registration of Treaties of International Organizations: Possible Application of the Rules of the Vienna Convention on the Law of Treaties, Acta Academiae Aboensis 39 (1971); Sh. Rosenne, The Depositary of International Treaties, AJIL 61 (1967) 923 ; Id., More on the Depositary of International Treaties, AJIL 64 (1970) 838 ; J. Stoll, Depositary, EPIL 1 (1992) 1010 .
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article
CONTENTS
Paras.
A. Background .........................................................................................
Designation of the Depositary (Para. 1) ............................................
6
3.
Impartiality of the Depositary (Para. 2) ............................................
11
C. Context ...............................................................................................
16
1.
Relationship to Other Provisions ......................................................
16
2.
Matters Not Dealt With ...................................................................
17
3.
Customary Basis of Article 76 ...........................................................
18
D. Appreciation .......................................................................................
19
A. BACKGROUND
1. Introduction
1 The depositary in international law has probably no analogy in domestic private law, thus reflecting the particular position of States vis-à-vistreaties in international law.1 Traditionally, signatory States exchanged among themselves the documents of ratification of the treaty. However, in view of the growing complexity of procedures arising from the ratification and entry into force of multilateral treaties, States followed the simpler practice of depositing these instruments in one place—either with a particular treaty party, namely with its Ministry of Foreign A airs, or with an international organisation, e.g., the League of Nations and later the United Nations.2 Treaties on certain topics
1Rosenne, AJIL 61 (1967) 925. On pre-ILC literature, see J. Dehaussy, Le dépositaire des traités, RGDIP 56 (1952) 489 ; M. Diez de Velasco, Naturalleza juridica y funciones de depositario de tratados, RDI 41 (1958) 390 ; W.K. Geck, Die Registrierung und Verö entlichung völkerrechtlicher Verträge, ZaöRV 22 (1962) 113 ; D. Kappeler, Praxis der Depositare multilateraler Staatsverträge gegenüber Vorbehalten, SJIR 20 (1963) 21 ; A.-C. Kiss, Les fonctions du Secrétaire général du Conseil de l’Europe comme dépositaire des conventions européennes, AFDI 2 (1956) 680 . For examples of depositary functions, see Blix/Emerson 246 . Note that the spelling is depositary and not depository which
means a “storehouse”, Aust, Modern Treaty Law 324.
2United Nations, Summary of Practice 3, n. 11; Imbert, AFDI 26 (1980) 524 ; Stoll, EPIL 1 (1992) 1010 f. See N. 10.
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925
were routinely negotiated in certain cities and countries—e.g., humanitarian treaties in Geneva in Switzerland—and it was common for the host State subsequently to act as depositary to the treaty. Today, the depositary of a treaty plays an essential procedural role in the smooth operation of a multilateral treaty.3
2. History
Early ILC Rapporteurs referred only incidentally to the role and functions of
2
depositaries in their drafts and appeared to take the institution for granted.4 Waldock broached the subject in his first Report in 1962,5 though he pointed out in the ILC that “not much information was available on the subject”.6 The ILC Report 1962 provided in Article 28 for a residuary rule on the depositary of multilateral treaties.7 In 1965 there was much debate in the ILC as to whether the article was at all necessary;8 for the first time, the more open formulation in para. 1 (“may”) was employed, and it was also decided no longer to define a “depositary” in the introductory article.9 The resulting Article 71 of the ILC Draft 1966 led to an intense debate in Vienna in 1968 in particular on the issue of the impartiality of the depositary.10 After further
3 See the statement in the ILC by Waldock, YBILC 1965 I 195, para. 20; also the ILC Report 1966, YBILC 1966 II 269, para. 1.
4 See, e.g., Article 9, paras. 2 and 3 of Brierly Report I, YBILC 1950 II 238, and ibid. para. 83 (“[t]he practice of designating a depositary for a multipartite treaty is now so invariable”); Article 31, para. 2 of Fitzmaurice Report I, YBILC 1956 II 113; Rosenne, AJIL 61 (1967) 926 f. For the history see also Id., AJIL 61 (1967) 923 , and AJIL 64 (1970) 838 ; Kearny/Dalton, AJIL 64 (1970) 558 .
5Article 1, subpara. 1(m) (“the State or international organisation designated in a treaty to be the custodian of the authentic text and of all instruments relating to the treaty and to perform with reference to such treaty and instruments the functions set out . . . below”)
and Article 26 of Waldock Report II, YBILC 1962 II 32 and 81 f.
6YBILC 1962 I 185, para. 97. The minutes are at YBILC 1962 I 185 f, 214, 217 f, 239 f, 260, and 278.
7Article 1, subpara. 1(g) and Article 28 (“where a multilateral treaty fails to designate a depositary of the treaty and unless the States which adopted it shall have otherwise determined, the depositary shall be . . .”), YBILC 1962 II 161 and 185. Few States commented on this draft, and no amendments were suggested; see the observations by Governments
of Sweden and the US, Waldock Report IV, YBILC 1965 II 63.
8 Jiménez de Aréchaga pointed out that “to jettison the article . . . might create doubts about the existence of the rule”, YBILC 1965 I 192, para. 85.
9Article 28 of the ILC Report 1965, YBILC 1965 II 163; Waldock in the ILC, YBILC 1965 I 277, para. 25. The minutes are at YBILC 1965 I 190 , 195 f, 277 f, and 307.
10For the debate, see OR 1968 CoW 457 , 465 , 485 f, and 488. The ILC Draft 1966 is at YBILC 1966 II 268 f.
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amendments proposed by the Drafting Committee, Article 76 was adopted in 1969 by 105 votes to none.11
B. INTERPRETATION OF ARTICLE 76
1. Scope
3Depositaries play an essential role in the internal administration of a treaty, in particular of ensuring the necessary formalities and procedures during a treaty’s life.12 A depositary is considered a “trustee” and “instrument” of the parties to the treaty.13 Over the years, the role of depositary has evolved.14
An early view regarded the depositary as acting in the parties’ name and standing, so to say, “in their shoes”.15 Thus, it was assumed that communication or notification of an act to the depositary was the equivalent of communication or notification of that act directly to the other States. According to the more modern view, the depositary has an independent function with its own rights and duties.16 For instance, receipt by the depositary of a notification or communication is not regarded automatically as also constituting receipt by every State for which it is intended. This is the approach of the Convention, as confirmed, for instance, by Article 78, para. (c) (q.v., N. 10).17
4Most articles of the Convention, including Article 77 on the Functions of Depositaries (q.v., N. 4), are residuary in that they are mandatory and apply if the parties do not decide di erently. Exceptionally, paragraph 1 of Article
11OR 1969 Plenary 130, para. 25; for the debate see OR 1969 Plenary 129 f. Various amendments to Article 71 of the ILC Draft 1966 were put forward, inter alia: by China proposing to include the word “multilateral”, OR Documents 201, subpara. 657 (i)(a) (rejected); by Malaysia to delete the words “are international in character”, ibid. subpara.
(b) (withdrawn); by Finland to include in para. 1 “one or more States”, ibid. subpara. (ii)(b) (adopted); by Mexico to include in para. 1 “international organisation or the chief administrative o cer of the organisation”, ibid. (ii)(c) (adopted); and the six-State amendment by Bulgaria, the then Byelorussian SSR, Cambodia, Guinea, Mali and Mongolia for an amendment to para. 2 (“impartiality . . . irrespective of the state and character of the relations between the depositary State and the State transmitting the notifications and communications”), ibid. (iii) (rejected).
12Aust. Modern Treaty Law 325; Waldock Report II, YBILC 1962 II 82, para. 2 (“a great convenience”).
13Respectively, Rosenne, AJIL 61 (1976) 938; and the ILC Report 1966, YBILC 1966 II 272, para. 4.
14See here Rosenne, AJIL 61 (1976) 926 .
15Ibid. .
16See, e.g., Articles 10 and 12 of the Havanna Convention of 1928, AJIL 29 (1935) Supplement 658 f and 1206; also the Reservations to Genocide Advisory Opinion, ICJ Reports 1951 15; and the Right of Passage (Portugal v. India) Case, ICJ Reports 1957 145.
17Waldock Report I, YBILC 1962 II 83, para. 3 (“not a mere postbox”): de Luna in the ILC, YBILC 1962 I 190, para. 36 (“[t]he postbox theory was a legacy of bilateralism”).
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927
76 (N. 6–10) is not residuary, it is expository,18 i.e., it explains the possibilities
open to treaty parties when negotiating and concluding a treaty. Thus, the
States may design a depositary; this may be made either in the treaty itself
or in some other manner; and the depositary may be one or more States, an
international organisation or its chief administrative o cer.19 If States do
not do so (which would be rare in practice), there will be no depositary to
the treaty. Conversely, para. 2 (N. 11–15) is residuary in the regular sense
in that its provisions apply to the extent that the parties have not agreed
otherwise.20
In practice, depositaries are designated mainly in respect of multilateral trea-
5
ties with a large number of parties. However, Article 76 applies to all treaties
within the meaning of Article 2, subpara. 1(a) (q.v., N. 4–23). While it may appear unusual, Article 76 nevertheless also covers the case where States designate a depositary in respect of bilateral treaties (in particular a third State or an international organisation), of informal agreements, e.g., an exchange of notes between two or more States, or of multilateral treaties with a limited number of parties.21
Article 24, para. 4 (q.v., N. 12) provides, inter alia, that clauses on the functions of the depositary apply as from the time of the adoption of the text of the treaty, thus referring
18T he term was employed by Sinclair of the UK delegation in Vienna, OR 1968 CoW 462, para. 53.
19See the observations in Vienna by the delegations of Canada, ibid. para. 24 (“‘may’ in para. 1 confirms that Article [76] is not truly residuary, it does not state in a mandatory manner who is the depositary if States do not choose one”); India, ibid., para. 23; Israel, ibid. 460, para. 29 (“purely descriptive”); Austria, ibid. 461, para. 34; and Greece, ibid. 466, para. 44 (“optional”); and by the Expert Consultant, Sir Humphrey Waldock, ibid. 467, para. 51; also the comment in the ILC by Yasseen, YBILC 1965 I 193, para. 98 (“it was not necessary to formulate a residual rule concerning the designation of a depositary”); the ILC Report 1966, YBILC 1962 II 269, para. 1 (“the matter should be left to the States which drew up the treaty to decide”); Rosenne, AJIL 61 (1967) 935; contra Stoll, EPIL 1 (1992) 1011 (“rules of customary law outlining the functions of the depositary, applicable in so far as a treaty between contracting States is silent on this matter, are codified in [Article] 76”). Originally, the ILC postulated a residuary rule; see Article 28 of the ILC Draft 1962, YBILC 1962 II 185.
20Di erently Caflisch, Article 76, N. , for whom the entire Article 76 has a “caractère potestatif”.
21See the observations in Vienna by the delegations of India, OR CoW 459, para. 23 (“all written international agreements, bilateral and multilateral, formal and informal”); and Israel, ibid. 460, para. 31; and the statement by the Expert Consultant, Sir Humphrey Waldock, ibid. 459, para. 23; Rosenne in the ILC, YBILC 1962 I 185, para. 99; Aust, Modern Treaty Law 324. This follows also from the rejection of the Chinese amendment in Vienna which proposed limiting Article 76 to “multilateral” treaties; see OR Documents 201, subpara. (i) 657(a); rejected at OR 1968 CoW 468, para. 63.
ZACHARIAS
928
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to Article 76, para. 2 (N. 11–15) and Article 77 (q.v.). The early application of para. 1 of Article 76 is regulated, not by Article 24, but in para. 1 itself (N. 6).22
2. Designation of the Depositary (Para. 1)
6States are free to designate the depositary of a treaty either in the treaty itself (which is the rule) or in some other manner, i.e., agreement may also be reached informally and even implicitly. They can do so at any moment. Article 76, para. 1 refers to the beginning of a treaty’s life by pointing out that already negotiating States, i.e., when drawing up and adopting the text of a treaty, may agree to designate a depositary (Article 2, subpara. 1[e], q.v., N. 40–42).23Of course, a depositary may also be designated at any later stage. If no agreement is established or if the chosen depositary declines, Article 76, para. 1, being expository rather than residuary, does not apply and there will be no depositary (N. 4).
7As a rule, the designated depositary will agree to its new tasks.24 In the course of its duties the depositary—as “trustee” of the parties of the treaty (N. 3)—remains responsible to the States which have instituted it (in the sense that Article 76 embodies mainly a duty to report back to the States rather than establishing an international responsibility).25 The depositary shall perform its obligations, in particular as regards impartiality (N. 11–15), in good faith.26 If the depositary eventually wishes to cease its functions, a new designation will be called for.27 States are moreover free at any time to agree to transfer the functions of a depositary from one State or international organisation to another.28 Termination of a treaty implies the end of the depositary’s functions per se once the final formalities have been performed.
8Article 76 lists various traditional examples as to the choice of the depositary, in particular one or more States (N. 9), an international organisation or the chief administrative o cer of the organisation (N. 10). However,
22Di erently Caflisch, Article 76, N. , for whom Article 24, para. 4 covers the entire Article 76.
23Contra Stoll, EPIL 1 (1992) 1010 f (“contracting States”). The ILC Draft 1965 mentioned “contracting States”, YBILC 1965 II 163, but reverted to “negotiating States” in 1966, YBILC 1966 II 268.
24United Nations, Summary of Practice 6 f, N. 28 .
25See the statements in the ILC by Rosenne, YBILC 1962 I 188, para. 18; and Waldock, YBILC 1965 I 202, para. 100 (“should act as an international organ”).
26Statement in the ILC by Gros, YBILC 1962 I 190, para. 44.
27Lachs in the ILC, YBILC 1962 I 185 f, para. 103.
28Rosenne, AJIL 61 (1967) 944; the statement in the ILC by Waldock, YBILC 1965 I 196, para. 22. See the examples in United Nations, Summary of Practice 4, N. 20 f.
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929
Article 76 does not exclude other entities.29 The principles in Articles 76 and
77 apply to all types of depositaries.30
The depositary is usually one State. While there is no presumption as to a
9
particular State (it may even be one which has no connexion with the treaty),31
the practice is to designate the State in whose territory the conference for
the preparation of a multilateral treaty has been convened.32 Article 76 also
envisages the possibility of more States acting as common depositary to one
treaty.
Entrusting the function of depositary to many States was employed in the Cold War
as a means of ensuring the e ective operation of treaties. All depositaries were placed
on an equal level. A State wishing to express consent to be bound by a treaty could do
so in respect of any one of the depositaries, thus avoiding the embarrassment caused
by di erences between the State in question and one particular depositary, e.g., as to
that State’s recognition.33
If the treaty is adopted within an international organisation or at a confer-
10
ence convened under its auspices, it is the usual practice to designate the
international organisation, its chief administrative o cer or an organ of the organisation as the depositary34 (though, as with States, there is no presumption in this respect, N. 9).35
The most important depositary on the international level today is the UN Secretary General (N. 1) who performs such functions in over 500 multilateral treaties.36 His practice takes into account the provisions of the Convention as regards the functions of a depositary. In particular, in the performance of his depositary duties he is guided by the provisions of the treaty, customary treaty law, insofar as it is codified by conventions
29See Aust, Modern Treaty Law 325.
30See the statement in the ILC by Rosenne, YBILC 1962 I 187, para. 12.
31In which case this State would have to consent separately to its new functions. Di erently Caflisch, Article 76, N. and .
32ILC Report 1966, YBILC 1966 II 269, para. 1; see the statements in the ILC by Waldock, YBILC 1965 I 277, para. 16; and Ago, ibid. 191, para. 69 (“why should it follow that, if nobody had designated the host country as depositary, it must be the host country, simply because the conference had been held in its territory”); see also Aust, Modern Treaty Law 326.
33See the examples in United Nations, Summary of Practice 3, N. 15 ; e.g., the Partial Test Ban Treaty of 1963, UNTS 43 480; and the Outer Space Treaty of 1967, UNTS 205 610; the statements in Vienna by the delegations of Sweden (Blix), OR 1968 CoW 458, para. 9 (“novel practice”); and Romania, ibid. 467, para. 49; Rosenne, AJIL 64 (1970) 844; Aust, Modern Treaty Law 326 f; Verdross/Simma N. 715.
34ILC Report 1966, YBILC 1966 II 269, para. 1; Aust, Modern Treaty Law 327 f.
35Statement in the ILC by Waldock, YBILC 1965 I 277, para. 16.
36Aust, Modern Treaty Law 328 f.
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on the matter, and general principles flowing from resolutions or decisions of the UN General Assembly and other organs.37
The formulation “international organisation or the chief administrative o cer of the organisation” may appear less elegant (in majore minus) but is pertinent. Treaties contain diverse solutions, and the depositary may well be the organisation itself, its secretarygeneral and/or an(other) organ.38
According to Article 85 (q.v., N. 2), the UN Secretary General is the depositary of the Convention.
3. Impartiality of the Depositary (Para. 2)
11Article 76, para. 2 expresses itself on the depositary’s functions and thus in fact pertains to Article 77 (q.v.) concerning functions of depositaries.39
12At the outset, para. 2 provides that the functions of the depositary of a treaty are international in character. The international character implies, on the one hand, that Article 76 is concerned with the depositary’s functions vis-à-visother States and international organisations within the framework of international law rather than towards its own domestic authorities under its domestic law. On the other hand, the depositary shall consider, inter alia, the sovereign nature of States and, therefore, that all States are equal. From this derives the second part of para. 2, namely that the depositary is under an obligation to act impartially in the performance of its functions (N. 13–15).40
13Impartiality in para. 2, applying to all the depositary’s obligations,41 is to be interpreted broadly and beyond the notion of strict equality of the parties to the treaty. Thus, the depositary must perform its functions objectively and neutrally (“formally”, “notarially”)42 without making any substantive
37United Nations, Summary of Practice 3, N. 13 f; Rosenne, Develoments 415 ; see also Kohona AJIL 99 (2005) 433 ; Han, Brooklyn JIL 14 (1988) 549 .
38See the statement in Vienna by the Mexican delegation, OR 1968 CoW 458, para. 7 (“in the practice of the United Nations, the depositary is the Secretary-General and not the organization itself”). For instance, in the Council of Europe the Secretariat is not an organ; see the statement in Vienna by the Greek delegation, OR 1968 CoW 466, para. 44.
39See the statement in Vienna by the delegation of Malaysia, OR 1968 CoW 458 f, para.
40See the statements by the delegations of India, ibid. 462, para. 51 (“ostensibly all the parties to the treaty would have identical status regarding their rights and obligations”); Israel, ibid. 460, para. 30 (“the two elements . . . went together”); and Mongolia, ibid. 458 f, para.
15.For the ILC Report 1966, the depositary’s impartiality emphasised its “representative character”, YBILC 1966 II 269, para. 2.
41See the statement in Vienna by the Expert Consultant, Sir Humphrey Waldock, OR 1968 CoW 476, para. 55; Rosenne, AJIL 64 (1970) 841.
42See the statements in Vienna by the delegations of Greece, OR 1968 CoW 466, para. 45 (“restricted to formalities”); and France, ibid. 461, para. 34.
ZACHARIAS
depositaries of treaties
931
or political appreciation.43 The relations between a depositary and the State
transmitting a notification or communication will not play a role in the
performance of the depositary’s functions (N. 15).44 A fortiori, a depositary
cannot undertake “binding” action towards other States (Article 77, N. 2). Of
course, a depositary State—as a rule itself a treaty party—is entitled to have
its own policies vis-à-visother States and the implementation of the treaty,45
but they will not a ect its depositary functions. A State should refuse to take
over (and indeed should not be o ered) the position of a depositary if this
would expose it to the risk of no longer being impartial.46 In other words,
the two positions of the State must be carefully distinguished, namely as a
treaty party and as a depositary.47
Para. 2 is not exclusive in that it mentions in particular two examples dem-
14
onstrating impartiality.48 For instance, the fact that a treaty has not entered
into force between certain of the parties or that a di erence has appeared
between a State and a depositary with regard to the performance of the
latter’s functions shall not a ect that obligation.49
Further examples given in Vienna in 1968 were: “when the depositary was an interna-
tional organization of which the State making the notification was not a member; or the
depositary might be a State which did not have diplomatic relations with the notifying
State, either because relations had been broken o or because they had never existed, the
depositary State not having recognized the notifying State. Or again, relations between
the two States might be going through a period of crisis”.50
Where the depositary State maintains no diplomatic relations with a State
15
filing a communication or notification, the obligation of impartiality may
43See the Indian delegation, ibid. 462, para. 49; Aust, Modern Treaty Law 329 f; Verdross/ Simma N. 715.
44See the statements in Vienna by the delegations of Bulgaria, OR 1968 CoW 458, para. 13; and Poland, ibid. 465 f, para. 36. See the example given by Aust, Modern Treaty Law 329 f, concerning the Permanent Observer of Palestine to the UN.
45ILC Report 1966, YBILC 1966 II 269, para. 2; the statement in Vienna by the delegation of the then Byelorussian SSR, OR 1968 CoW 458, para. 9; the statement in the ILC by Gros, YBILC 1962 I 190, para. 43.
46See the Greek delegation, OR 1968 CoW 466, para. 45.
47Caflisch, Article 76, N. 30.
48See the statement in Vienna by the Chairman of the Drafting Committee, Yasseen, OR 1968 CoW 488, para. 3, and at OR 1969 Plenary 129, para. 18. For further examples, see the six-State-amendment rejected at the Conference above N. 2 at n. 11; the statement by the delegation of Israel, OR 1968 CoW 460, para. 30.
49See the Indian delegation, OR 1968 CoW 462, para. 49 (“impartial in regard to . . . whether that State was entitled to be counted for the purposes of bringing the treaty into force”).
50Statement by the delegation of Guinea, ibid. 466 f, para. 47.
ZACHARIAS
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impose on the depositary the duty to receive or transmit the document through the UN Secretary-General or a third State.51
C. CONTEXT
1. Relationship to Other Provisions
16The Convention provisions relating to depositaries and their functions are listed in Article 77 (q.v., N. 5–12). Article 24, para. 4 (q.v., N. 12) concerns the early entry into force of a treaty’s provisions concerning the functions of the depositary and, therefore, both Article 77 and Article 76, para. 2 of Article 76 (N. 5).
2.Matters Not Dealt With
17Article 76 does not regulate the international responsibility of a depositary.52 Para. 1, dealing with the appointment of depositaries (N. 11), provides for considerable flexibility and allows States to regulate in detail the modalities of the appointment and situations such as the transfer of depositary from one State to another.
3.Customary Basis of Article 76
18Article 76, para. 1 indubitably refers to established practices concerning the appointment of depositaries. However, this provision is expository, not residuary, and therefore not applicable (and binding) if States have failed to regulate the matter in their treaty (N. 4).53 This aspect is exceptional and provides an innovatory element to Article 76 and indeed to the Convention. In fact, it is questionable whether para. 1 constitutes a rule at all. Para. 2, on the other hand, is an established rule of customary international law.54
51See the statements in Vienna by the delegations of Australia, ibid. 461 f, para. 41; and
the UK (Sinclair), ibid. 462, para. 54; and the statement in the ILC by Jiménez de Aréchaga, YBILC 1962 I 189, para. 26. See also Aust, Modern Treaty Law 329 f.
52Di erently, Caflisch, Article 76, N. 32.
53See the statement in Vienna by Sinclair of the UK delegation, OR 1968 CoW 462, para. 53. See the observation by the US Government to the ILC in 1965, Waldock Report IV, YBILC 1965 II 63 (“well-accepted practice”); the ILC Report 1962, YBILC 1962 II 185 (“existing practice”).
54See the statement in Vienna by the delegation of Israel, OR 1968 CoW 460, para. 30 (“essential rule of law”); by the Swiss Government in Parliament, SZIER 47 (1990) 127 (“pratique internationale codifiée dans la Convention”); Aust, Modern Treaty Law 329.
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depositaries of treaties
933
D. APPRECIATION
Originally, Article 76 faced only lukewarm reception in the ILC (N. 2),55 19 though today its position in the Convention is undisputed.56 The article gives
the depositary a legal status and reflects its important position in the successful operation of a modern multilateral treaty.57 The flexibility of this provision is useful in view of the increasing number of instruments and the manifold problems which they may bring about.58 Article 76, para. 1 is exceptional in that it is expository, not residuary, and would not, therefore, appear to qualify as a true rule (N. 4).
55See the statements in the ILC by Tunkin, YBILC 1965 I 191, para. 67 (“for practical purposes . . . useless”); Ago, ibid., para. 68 (“not convinced that the article was either necessary or desirable”); and Waldock, ibid. 195, para. 19.
56Rosenne, AJIL 61 (1967) 926 (“not among the less important”); the statement in the ILC by Waldock, YBILC 1965 I 197, para. 29 (“of help to States which acted for the first time as a depositary”), and at 202, para. 100.
57See the statements in Vienna by the delegation of Romania, OR 1968 CoW 467, para. 49; and in the ILC by Waldock, YBILC 1965 I 95, para. 19.
58Observation by the Polish delegation, OR 1968 CoW 465, para. 36; United Nations, Summary of Practice 1, n. 3.
ZACHARIAS
Article 77
Functions of depositaries
1.The functions of a depositary, unless otherwise provided in the treaty or agreed by the contracting States, comprise in particular:
(a)keeping custody of the original text of the treaty and of any full powers delivered to the depositary;
(b)preparing certified copies of the original text and preparing any further text of the treaty in such additional languages as may be required by the treaty and transmitting them to the parties and to the States entitled to become parties to the treaty;
(c)receiving any signatures to the treaty and receiving and keeping custody of any instruments, notifications and communications relating to it;
(d)examining whether the signature or any instrument, notification or communication relating to the treaty is in due and proper form and, if need be, bringing the matter to the attention of the State in question;
(e)informing the parties and the States entitled to become parties to the treaty of acts, notifications and communications relating to the treaty;
(f)informing the States entitled to become parties to the treaty when the number of signatures or of instruments of ratification, acceptance, approval or accession required for the entry into force of the treaty has been received or deposited;
(g)registering the treaty with the Secretariat of the United Nations;
(h)performing the functions specified in other provisions of the present Convention.
2.In the event of any di erence appearing between a State and the depositary as to the performance of the latter’s functions, the depositary shall bring the question to the attention of the signatory States and the contracting States or, where appropriate, of the competent organ of the international organisation concerned.
functions of depositaries
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Article 77 Fonctions des dépositaires
1.A moins que le traité n’en dispose ou que les Etats contractants n’en conviennent autrement, les fonctions du dépositaire sont notamment les suivantes:
a)assurer la garde du texte original du traité et des pleins pouvoirs qui lui seraient remis;
b)établir des copies certifiées conformes du texte original et tous autres textes du traité en d’autres langues qui peuvent être requis par le traité, et les communiquer aux parties au traité et aux Etats ayant qualité pour le devenir;
c)recevoir toutes signatures du traité, recevoir et garder tous instruments, notifications et communications relatifs au traité;
d)examiner si une signature, un instrument, une notification ou une communication se rapportant au traité est en bonne et due forme et, le cas échéant, porter la question à l’attention de l’Etat en cause;
e)informer les parties au traité et les Etats ayant qualité pour le devenir des actes, notifications et communications relatifs au traité;
f)informer les Etats ayant qualité pour devenir parties au traité de la date à laquelle a été reçu ou déposé le nombre de signatures ou d’instruments de ratification, d’acceptation, d’approbation ou d’adhésion requis pour l’entrée en vigueur du traité;
g)assurer l’enregistrement du traité auprès du Secrétariat de l’Organisation des Nations Unies;
h)remplir les fonctions spécifi ées dans d’autres dispositions de la présente Convention.
2.Lorsqu’une divergence apparaît entre un Etat et le dépositaire au sujet de l’accomplissement des fonctions de ce dernier, le dépositaire doit porter la question à l’attention des Etats signataires et des Etats contractants ou, le cas échéant, de l’organe compétent de l’organisation internationale en cause.
Artikel 77 Aufgaben des Depositärs
1.Sofern der Vertrag nichts anderes vorsieht oder die Vertragsstaaten nichts anderes vereinbaren, hat ein Depositär insbesondere folgende Aufgaben:
a)Die Urschrift des Vertrags und die dem Depositär übergebenen Vollmachten zu verwahren;
936
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b)beglaubigte Abschriften der Urschrift sowie weitere Texte des Vertrags in den nach dem Vertrag erforderlichen zusätzlichen Sprachen zu erstellen und sie den Vertragsparteien und den Staaten zu übermitteln, die berechtigt sind, Vertragsparteien zu werden;
c)Unterzeichnungen des Vertrags entgegenzunehmen sowie alle sich auf den Vertrag beziehenden Urkunden, Notifikationen und Mitteilungen entgegenzunehmen und zu verwahren;
d)zu prüfen, ob die Unterzeichnung und jede sich auf den Vertrag beziehende Urkunde, Notifikation oder Mitteilung in guter und gehöriger Form sind, und, falls erforderlich, den betre enden Staat darauf aufmerksam zu machen;
e)die Vertragsparteien sowie die Staaten, die berechtigt sind, Vertragsparteien zu werden, von Handlungen, Notifikationen und Mitteilungen zu unterrichten, die sich auf den Vertrag beziehen;
f)die Staaten, die berechtigt sind, Vertragsparteien zu werden, von dem Zeitpunkt zu unterrichten, zu dem die für das Inkrafttreten des Vertrags erforderliche Anzahl von Unterzeichnungen oder von Ratifikations-, Annahme-, Genehmigungsoder Beitrittsurkunden vorliegt oder hinterlegt wurde;
g)den Vertrag beim Sekretariat der Vereinten Nationen registrieren zu lassen;
h)die in anderen Bestimmungen dieses Übereinkommens bezeichneten Aufgaben zu erfüllen.
2.Treten zwischen einem Staat und dem Depositär über die Erfüllung von dessen Aufgaben Meinungsverschiedenheiten auf, so macht dieser die Unterzeichnerstaaten und die Vertragsstaaten oder, wenn angebracht, das zuständige Organ der internationalen Organisation darauf aufmerksam.
ILC Draft 1966
Article 72—Functions of depositaries
1.The functions of a depositary, unless the treaty otherwise provides, comprise in particular:
(a)keeping the custody of the original text of the treaty, if entrusted to it;
(b)preparing certified copies of the original text and any further text in such additional languages as may be required by the treaty and transmitting them to the States entitled to become parties to the treaty;
(c)receiving any signatures to the treaty and any instruments and notifications relating to it;
functions of depositaries
937
(d)examining whether a signature, an instrument or a reservation is in conformity with the provisions of the treaty and of the present articles and, if need be, bringing the matter to the attention of the State in question;
(e)informing the States entitled to become parties to the treaty of acts, communications and notifications relating to the treaty;
(f)informing the States entitled to become parties to the treaty when the number of signatures or of instruments of ratification, accession, acceptance or approval required for the entry into force of the treaty has been received or deposited;
(g)performing the functions specified in other provisions of the present articles.
2.In the event of any di erence appearing between a State and the depositary as to the performance of the latter’s functions, the depositary shall bring the question to the attention of the other States entitled to become parties to the treaty or, where appropriate, of the competent organ of the organisation concerned.
Materials:
Waldock Report I: Article 27.
Minutes: YBILC 1962 I 187 , 235 , 260 f, 278 f.
ILC Draft 1962: Article 29.
Waldock Report IV: Article 29.
Minutes: YBILC 1965 I 196 , 278 f.
ILC Draft 1965: Article 29.
Minutes: YBILC 1966 I/2 293, 295, 334, 337.
ILC Draft 1966: Article 72.
Minutes: OR 1968 CoW 457 , 465 , 486 f; OR 1969 Plenary 130 f.
Vienna Conference Vote: 99:0:0
Selected Literature (in addition to the literature mentioned in Article 76, q.v.):
F. Ouguergouz/S. Villapando, Article 77, in: Corten/Klein (eds.) 2697 .
938
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CONTENTS
Paras.
A. Background .........................................................................................
1
1.
Introduction (see Article 76, n. 1)
2.
History ...............................................................................................
1
B. Interpretation of Article 77 .............................................................
Informing States of Entry Into Force (Subpara. 1[f]) ..................
10
g)
Registering the Treaty (Subpara. 1[g]) .........................................
11
h)
Other Functions in the Convention (Subpara. 1[h]) ...................
12
3.
Settlement of Di erences (Para. 2) ...................................................
13
C. Context ...............................................................................................
14
1.
Relationship to Other Provisions ......................................................
14
2.
Matters Not Dealt With ...................................................................
15
3.
Customary Basis of Article 77 ...........................................................
16
D. Appreciation .......................................................................................
17
A. BACKGROUND
1. Introduction
(see Article 76, n. 1)
2. History
1 Article 27 of Waldock Report I, a very detailed precursor to Article 77, was introduced in the ILC in 1962 together with Article 76 (q.v., N. 2). It emphasised the safe custody of the various documents for which the deposi-
functions of depositaries
939
tary was responsible.1 A separate and disputed part concerned the depositary’s functions in respect of reservations.2 Originally no provision was made for dispute settlement as in today’s para. 2 of Article 77 (N. 13), though this was included during the ILC deliberations in 1962.3 Article 29 of the ILC Draft 1962 attracted some observations by Governments.4 The ILC Draft 1965 was again discussed in the ILC in 1965 and 1966.5 The ILC Draft 1966 gave rise to various amendments in Vienna;6 most were adopted by the Conference, though they were not always retained by the Drafting Committee (with little further explanation as to the reasons).7 The Conference dropped the clause on reservations, introduced subpara. 1(g) (N. 11), and made further changes to the text.8 In 1969 Article 77 was adopted by 99 votes to none.9
B. INTERPRETATION OF ARTICLE 77
1. Scope
The functions in subparas. 1(a)–(h) (N. 5–12)—inter alia, keeping custody
2
of the treaty text, preparing certain documents, receiving treaty signatures,
1Article 27, YBILC 1962 III 82 f. See the statement by Waldock in the ILC, YBILC 1962 I 187, para. 2 (“somewhat long”). The debate is at YBILC 1962 I 187 , 235 , 260 f, and 278 f. For the history, see Rosenne, AJIL 61 (1967) 923 , and AJIL 64 (1970) 838 ;
Kearny/Dalton, AJIL 64 (1970) 558 .
2 See, e.g., the statements in the ILC by Yasseen and Castren, YBILC 1962 I 187, paras. 5 .
3 See the revised Article 27, YBILC 1962 I 235, para. 72; previously the statement by Waldock in the ILC, YBILC 1962 I 191, para. 60.
4 T he ILC Draft 1962 is at YBILC 1962 I 185 f. For the observations, see Waldock Report IV, YBILC 1965 II 63 .
5 T he ILC Draft 1965 is at YBILC 1965 II 163. For the debate, see YBILC 1965 I 196 , and 278 f; and YBILC 1966 I/2 293, 295, 334, and 337.
6 T he ILC Draft 1966 is at YBILC 1966 II 269 f. The amendments by the US, Mexico, the then Byelorussian SSR, Finland and Mongolia are at OR Documents 201 f; they were adopted at OR 1968 CoW 468, paras. 66 f.
7 See, e.g., the amendment by the then Byelorussian SSR, ibid. 202, para. 657 (v) (“[i]f the treaty does not enter into force as between certain of the parties thereto, this shall not a ect the obligation of the depositary to perform its functions in relation to all States parties to the treaty”). This was adopted at OR 1968 CoW 468, para. 67, though subsequently—without further explanation—not retained, ibid. 492, paras. 45–50.
8T he debate is at OR 1968 CoW 457 , 465 , and 486 f; and OR 1969 Plenary 130 f. For instance, in subpara. 1(a) the terms “if entrusted to it” were deleted (it being unlikely that a depositary would not be entrusted to the original text); in subpara. 1(c), the term “communications” was included (N. 7); a new subpara. 1(g), concerning registration with the UN was introduced (N. 11); and para. 2 now refers to “signatory States and the contracting
States” instead of “States entitled to become parties” (N. 13). 9 OR 1969 Plenary 131, para. 25.
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examining the form of certain acts, informing the parties—imply no real power of the depositary; the latter cannot adjudicate, and its acts have no binding force vis-à-visother States,10 all of which is in conformity with the international character of the depositary (Article 76, N. 12). It follows that there is little room in Article 77 for an incorrect exercise of these functions or even an abuse of powers. In any event, depositaries are presumed to be acting in good faith.11 Article 78 (q.v., N. 7–11) lists certain consequences of the accomplishment (or lack thereof) of notification or communications. On the whole, Article 77 relies only to some extent on the practice of the UN Secretary General.12
The various functions listed in Article 77 may appear more burdensome to perform for a State acting as a depositary than for an international organisation which as a rule is well-versed in multilateral communications.13
3Subparas. 1(b), (e) and (f) of Article 77 (N. 6, 9 and 10) refer as addressees to parties and States entitled to become parties. Since all States are potentially entitled to become parties to multilateral treaties but not all States are necessarily concerned by the administration of the treaty, the latter group appears overly broad. Article 77 thus provides an onerous task for the depositary. In 1968 in Vienna the Expert Consultant, Sir Humphrey Waldock, advised against this formulation,14 though for unknown reasons both the Drafting Committee and eventually the Conference insisted on maintaining it (N. 1). On the other hand, para. 2, concerning signatory States and the contracting States, appears pertinent since both groups of States have a direct interest in the settlement of any di erences.
4Article 77 di ers from Article 76, para. 1 (q.v., N. 4) in that it is truly—and doubly—residuary. As stated in the opening sentence, the various functions apply unless otherwise provided in the treaty. In addition, any
10See the statements in Vienna by the delegations of Canada, OR 1968 CoW 460, para. 26; and Australia, ibid. 462, para. 45; the statement by Rosenne in the ILC, YBILC 1962 I 188, para. 16 (“any decision would be purely provisional”). But see the discussion in respect of subpara. 1(f) in N. 10.
11See the statements in the ILC by Gros, YBILC 1962 I 190, para. 42; also ibid. para. 47 (“[t]here had never been any case in which the depositary had taken an abusive final decision”); and Rosenne, YBILC 1965 I 279, para. 52.
12See the statement in the ILC by Castren, YBILC 1962 I 187, para. 48 (“[t]he Commission should not feel bound by the practice of the Secretary General of the United Nations . . . The Commission was attempting to codify the law applicable to all depositaries, whether secretariats of international organizations or States”). At the outset, Waldock Report I relied heavily on United Nations, Summary of Practice; see Waldock Report I, YBILC 1962 II 82 f para. 1.
13Statement in the ILC by Waldock, YBILC 1962 I 187, para. 3.
14OR 1968 CoW 467, para. 58 (“this expression . . . was too broad”); Aust, Modern Treaty Law 332 (“which formula is not always easy to apply”).
functions of depositaries
941
further functions may be agreed by the contracting States, both formally and informally. These clauses avoid requiring an amendment of the treaty whenever new functions of a depositary arise or existing ones fall away.15 At first glance, this residuary character applies solely to para. 1. Para. 2 does not a priori envisage any superseding agreements, though naturally States are free to decide otherwise also in respect of the procedure for the settlement of di erences (N. 13). It follows that Article 77 is not exhaustive, and indeed, in para. 1 it is stated that the depositary’s functions comprise in particular those mentioned in subparas. 1(a)-(h).
In the travaux préparatoires the following additional functions were mentioned which are not expressly mentioned in Article 77 or indeed elsewhere in the Convention (N. 12): preparing the original text for signature in the languages specified;16 drawing up a procès-verbalof the entry into force of the treaty;17 for the depositary to return, upon termination of its functions, the text which it had received;18 o ering information to other States as to the parties to the treaty.19 Aust mentions as a further example the convening of a review conference.20
Article 24, para. 4 (q.v., N. 11) on the Entry Into Force of Treaties provides that the provisions of a treaty regulating, inter alia, the functions of the depositary shall apply from the time of the adoption of its text.
2. Functions
a) Custody of Treaty Text (Subpara. 1[a])
At the outset, subpara. 1(a) mentions the classic and essential function of 5 any depositary, namely keeping custody of the original text of the treaty
and of any full powers delivered to the depositary, as a rule in the archives of the State or the international organisation concerned.21 The original text includes any o cial text prepared in one or more languages.22 In addition to the full powers, such custody includes instruments of ratification, accession,
15See the statement in Vienna by the US delegation, OR 1968 CoW 459, para. 17.
16Statement in Vienna by the Chairman of the Drafting Committee, Yasseen, ibid. 486, paras. 45 and 47.
17See Article 27, subpara. 7(b) of Waldock Report I, YBILC 1962 I 1962 II 82 f.
18Statement in the ILC by Reuter, YBILC 1965 I 200, para. 86.
19Rosenne, ibid., para. 39.
20Modern Treaty Law 333. For a further example (Article 63 of the ICJ Statute), see also Rosenne, Developments 424.
21Article 16, para. 1 of Waldock Report I, YBILC 1962 II 81; statement in the ILC by Waldock, YBILC 1965 I 202, para. 99.
22Statement in Vienna by the Chairman of the Drafting Committee, Yasseen, OR 1969 Plenary 130, para. 19.
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acceptance and approval and also any amendment of the treaty communicated to the depositary.23
The Convention text itself is deposited with the UN Secretary-General (Article 85,
N.2).
b)Preparing Further Copies and Translations (Subpara. 1[b])
6Subpara. 1(b) lists three functions: (i) the depositary shall prepare qua
Convention certified copies of the original text; (ii) by way of example, as a function possibly required by the treaty, the depositary may also have to prepare any further text of the treaty in such additional languages as may be required; (iii) in both cases the depositary will be called upon to transmit copies and any further text to the parties and to the States entitled to become parties to the treaty (N. 3).24
c) Receiving Notifications and Communications (Subpara. 1[c])
7 Subpara. 1(c) provides that the depositary shall receive any signatures to the treaty and receive and keep custody of any instruments, notifications and communications relating to it.25
d) Examining Notifications and Communications (Subpara. 1[d])
8Upon receipt of the document concerned, the depositary shall examine whether the signature or any instrument, notification or communication relating to the treaty is in due and proper form and, if need be, bring the matter to the attention of the State in question. The document has to be submitted to the depositary in due and proper form, in particular correctly drawn up in form.26 If need be, for instance, if there is any flaw (e.g., imprecision, incompleteness, contradiction, error), the depositary shall bring the latter to the attention of the State in question. Thus, the depositary has a certain duty to examine the document and to draw preliminary conclusions (N. 2),27 though if any di culty is encountered, it falls to the treaty parties
23See the amendments proposed by the US and Mexico at the Conference, OR Documents 202, subparas. 657 (iv)(b) and (c); the statement by Yasseen in Vienna, OR 1968 CoW 486, para. 49. “Full powers” are defined in Article 2, subpara. 1(c), N. 29–30.
24See the observation hereupon by the US Government to the ILC, Waldock Report IV, YBILC 1965 II 63 (“[s]uch a State . . . might even be o ended and protest against the communication of the copy”).
25For the ILC Report 1966, this subpara. required “no comment”, YBILC 1966 II 269, para. 3.
26See the amendment proposed by the then Byelorussian SSR at the Conference, OR Documents 202, subpara. 657 (iv)(4), which was adopted by the Conference, though not pursued (N. 1); see the statement in the ILC by Waldock, YBILC 1962 I 191, para. 59 (“minor errors or faults due to inadvertence”).
27ILC Report 1966, YBILC 1966 II 269, para. 4; see also Waldock Report I, YBILC 1962 II 82 f (“verify”); the statement in the ILC by Jiménez de Aréchaga, YBILC 1962 I 189, para. 31 (“preliminary verification”).
functions of depositaries
943
generally rather than to the depositary to determine its validity. Subpara.
1(d) is thus closely linked with para. 2 (N. 13): if a di erence arises, that
procedure shall apply. Of course, a State unhappy with the outcome of the
examination remains free to settle the matter directly with the depositary,
rather than having the di erence communicated to the other States.28
e) Informing States of Notifications and Communications (Subpara. 1[e])
Once the depositary has received a document and verified its due and proper
9
form (N. 8), it shall inform the parties and the States entitled to become
parties (N. 3) to the treaty of acts, notifications and communications
relating to the treaty (subpara. 1[e]). This provision does not express itself
on how speedily this function should be performed; it is assumed, also on the
basis of good faith (N. 2), that the depositary shall carry it out diligently.29
Documents not concerning the treaty need not be brought to the attention
of other States.30
Article 78 (q.v.) equally expresses itself on the transmittal of notifications and commu-
nications; its para. (c) provides a safeguard if the depositary lacks diligence (q.v., N. 10).
On the other hand, para. 6 of the Annex to Article 66 (q.v., N. 16) implies functions of
the UN Secretary-General which are independent of Article 77.31
f) Informing States of Entry Into Force (Subpara. 1[f])
According to subpara. 1(f), the depositary shall inform the States entitled
10
to become parties to the treaty (N. 3) when the number of signatures or
of instruments of ratification, acceptance, approval or accession required for the entry into force of the treaty has been received or deposited. The depositary shall receive the various instruments and, as with the examination of notifications and communications (N. 8), shall examine the issue of the entry into force and inform the States concerned of its conclusions. Its appreciation, which remains preliminary, has no direct influence on the treaty’s entry into force.32
28See the statement in the ILC by Bartos, YBILC 1962 I 237, para. 100 (“[a] State might not necessarily wish to have a di erence with the depositary communicated to other interested States. It might feel that its di erence was not worth bringing to the attention of other States. In that case its wish should be respected”).
29Waldock Report IV, YBILC 1965 II 64, para. 9 (“due diligence”). See the observation by the Government of Israel to the ILC, ibid. 63 (“observance of the normal administrative processes”); the statement in the ILC by Rosenne, YBILC 1962 I 189, para. 22 (“promptly”). But see Article 27, para. 5 of Waldock Report I, YBILC 1962 II 82 f (“as soon as possible”).
30In particular not “communications of a purely political nature”; see the statement by the Swiss delegation in Vienna, OR 1968 CoW 462, para. 48.
31Rosenne, Developments 316.
32Waldock Report I, YBILC 1962 II 83, para. 6; the statements in the ILC by Lachs, YBILC 1962 I 191, para. 55; and Tunkin, ibid. 200, para. 71.
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g) Registering the Treaty (Subpara. 1[g])
11The depositary shall also register the treaty with the Secretariat of the United Nations.33 Of course, this does not imply that the UN or its Secretary-General thereby themselves become a depositary.34
Subpara. 1(g) partly coincides with Article 80, para. 1 (q.v., N. 7–8) which states the same duty though regardless of whether or not there is a depositary to the treaty. The lack of coordination between the two provisions can most likely be explained by the fact that subpara. 1(g) was only introduced at a very late stage at the Vienna Conference (N. 1).35
h) Other Functions in the Convention (Subpara. 1[h])
12Finally, the depositary shall perform the functions specified in other provisions of the present Convention. These are listed in particular in Articles 76, para. 2 and 78–80(q.v.). Among other functions stated in the Convention may be mentioned:
–Article 16, para. 3 (q.v., N. 7) provides for the consent of a State to be bound by a treaty, inter alia, upon the deposit of instruments of ratification, acceptance, approval or accession with the depositary;
–Article 23 (q.v.) concerns the formulation of a reservation, the express acceptance of a reservation and the objection to a reservation, and their communication—viathe depositary, if there is one—to the contracting States and other States entitled to become parties to the treaty;
–Article 47 (q.v., N. 7) stipulates that specific restrictions on the authority to express the consent of a State must have been notified—viathe depositary, if there is one—to the other negotiating States prior to its expressing such consent;
–Article 74 (q.v.) stipulates that the severance or absence of diplomatic or consular relations between States does not prevent the conclusion of treaties between those States, nor does such conclusion a ect the situation in regard to the diplomatic or consular relations
–Article 85 (q.v.) mentions the Secretary-General as depositary for the present Convention (N. 5).
3.Settlement of Di erences (Para. 2)
13Para. 2 concerns the event of any di erence appearing between a State and the depositary as to the performance of the latter’s functions. Such dif-
33See the statement in Vienna by the US delegation, OR 1968 CoW 459, para. 20 (“it was
customary for the depositary to perform all the registration functions and . . . the United Nations Secretariat had informally indicated its preference that registration of a treaty be e ected by the depositary”).
34Aust, Modern Treaty Law 327 f.
35In fact, subpara. 1(g) was first mentioned in the observation by the Government of Israel to the ILC, Waldock Report IV, YBILC 1965 II 63.
functions of depositaries
945
ferences may arise in particular in respect of the depositary’s functions under subparas. 1(d) and (f) (N. 8, 10) where it has a certain duty of appreciation and of informing the other treaty parties and States thereof, but may not exercise any acts with binding force vis-à-visother States and may not adjudicate.36
If such a di erence arises, the depositary shall bring the question to the attention of the signatory States and the contracting States (N. 3) or, where appropriate, of the competent organ of the international organisation concerned. It falls to the signatory and contracting States as a whole finally to settle the dispute.37 Para. 2 makes no mention of the procedure; the means chosen—consultations, negotiations etc.—may be informal. The appearance of a di erence does not a ect the depositary’s duty to continue to exercise all its functions impartially (Article 76, N. 11–13).38
C. CONTEXT
1. Relationship to Other Provisions
The relationship to other provisions is mentioned above (N. 12).
14
2. Matters Not Dealt With
Article 77 lists examples of the depositary’s functions and is not exhaustive
15
(N. 4).
3. Customary Basis of Article 77
Article 77 appears generally codifi catory of general international law,39
16
though most likely introducing innovatory details, e.g., in subparas. 1(d)–(e)
(N. 8–10).
36See the statement in Vienna by the Expert Consultant, Sir Humphrey Waldock, OR 1968 CoW 467, para. 57.
37See the statement in the ILC by Gros, YBILC 1962 I 190, para. 48.
38See the Mongolian amendment in Vienna, OR Documents 202 subpara. 657 (vi)(a) which was adopted by the Conference, though not pursued (N. 1).
39See the statements in Vienna by the delegations of Cambodia, OR 1968 CoW 461, para. 38; and Switzerland, ibid. 462, para. 48; also the message of the Swiss Government to Parliament upon accession of Switzerland to the Convention, BBl 1989 II 787; see also the statements in the ILC by Castren, Jiménez de Aréchaga and Gros, YBILC 1962 I 187 ; and Reuter, YBILC 1965 I 201, para. 84; Aust, Modern Treaty Law 333 (“largely codified in the Convention”).
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D. APPRECIATION
17Article 77 provides a detailed and technical, though nevertheless convenient list of the main functions of a depositary relating to the conclusion and entry into force of treaties as established in international practice. Even inexperienced depositaries can orientate themselves easily.40 As a particular di culty for depositaries, Article 77 calls on them to exercise certain functions towards the wide range of States “entitled to become parties” (N. 3).
40Waldock Report I, YBILC 1962 II 82 f, para. 1; Reuter, Introduction 69 (“([t]he essential functions of the depositary have thus been reduced to nearly automatic ones as reflected in Article 77”); Rosenne, AJIL 64 (1970) 844 (“largely of a highly technical . . . character which do not raise serious questions of principle”). But see the observation by the Japanese Government to the ILC, Waldock Report IV, YBILC 1965 II 63 (“a little out of place as well as out of proportion to provide for procedural details of a depositary in a general convention”).
Article 78
Notifications and communications
Except as the treaty or the present Convention otherwise provide, any notification or communication to be made by any State under the present Convention shall:
(a)if there is no depositary, be transmitted direct to the States for which it is intended, or if there is a depositary, to the latter;
(b)be considered as having been made by the State in question only upon its receipt by the State to which it was transmitted or, as the case may be, upon its receipt by the depositary;
(c)if transmitted to a depositary, be considered as received by the State for which it was intended only when the latter State has been informed by the depositary in accordance with Article 77, paragraph 1 (e).
Article 78 Notifications et communications
Sauf dans les cas où le traité ou la présente Convention en dispose autrement, une notification ou communication qui doit être faite par un Etat en vertu de la présente Convention:
a)est transmise, s’il n’y a pas de dépositaire, directement aux Etats auxquels elle est destinée ou, s’il y a un dépositaire, à ce dernier;
b)n’est considérée comme ayant été faite par l’Etat en question qu’à partir de sa réception par l’Etat auquel elle a été transmise ou, le cas échéant, par le dépositaire;
c)si elle est transmise à un dépositaire, n’est considérée comme ayant été reçue par l’Etat auquel elle est destinée qu’à partir du moment où cet Etat aura reçu du dépositaire l’information prévue à l’alinéa (e) du paragraphe 1 de l’article 77.
Artikel 78 Notifikationen und Mitteilungen
Sofern der Vertrag oder dieses Übereinkommen nichts anderes vorsieht, gilt für Notifikationen und Mitteilungen, die ein Staat auf Grund dieses Übereinkommens abzugeben hat, folgendes:
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a)ist kein Depositär vorhanden, so sind sie unmittelbar den Staaten zu übersenden, für die sie bestimmt sind; ist ein Depositär vorhanden, so sind sie diesem zu übersenden;
b)sie gelten erst dann als von dem betre enden Staat abgegeben, wenn sie—je nach Lage des Falles—der Staat, dem sie übermittelt werden, oder der Depositär empfangen hat;
c)werden sie einem Depositär übermittelt, so gelten sie erst in dem Zeitpunkt als von dem Staat, für den sie bestimmt sind, empfangen, zu dem dieser nach Artikel 77 Absatz 1 lit. e von dem Depositär unterrichtet wurde.
ILC Draft 1966
Article 73—Notifications and Communications
Except as the treaty or the present articles otherwise, provide, any notification or communication to be made by any State under the present articles shall:
(a)if there is no depositary, be transmitted directly to the States for which it is intended, or if there is a depositary, to the latter;
(b)be considered as having been made by the State in question only upon its receipt by the State to which it was transmitted or, as the case may be, upon its receipt by the depositary;
(c)if transmitted to a depositary, be considered as received by the State for which it was intended only upon the latter State’s having been informed by the depositary in accordance with Article 72, paragraph 1(e).
Transmittal to the Addressee (Para. [a]) ............................................
6
4.
Accomplishment (Paras. [b] and [c]) ................................................
7
a)
Sending the Act (Para. [b]) ...........................................................
8
b)
Receiving the Act (Paras. [b] and [c]) ...........................................
9
C. Context ..............................................................................................
12
1.
Relationship to Other Provisions ......................................................
12
2.
Matters Not Dealt With ...................................................................
13
3.
Customary Basis of Article 78 ..........................................................
14
D. Appreciation ......................................................................................
15
A. HISTORY
While discussing the functions of a depositary (Article 77, N. 1) in 1965,
1
it was proposed in the ILC to lay down in a separate article the modalities
of all communications and notifications concerning a treaty.1 This led first to today’s para. (a), later to para. (b).2 In 1966 the ILC discussed the point in time when notification could be considered as having been “made”, and today’s para. (c) was inserted.3 Article 73 of the ILC Draft 1966 was adopted in Vienna by 104 votes to none, virtually without a change.4
1 ILC Report 1966, YBILC 1966 II 170, para. 1.
2 YBILC 1965 I 176, para. 67; 200, para. 72; and 280, para. 61 (Article 29bis); see also YBILC 1965 II 163.
3Proposed by Tunkin, ibid. 138, para, 47. The debate is at YBILC 1966 I/2 134 , and 274 .
4OR 1969 Plenary 131, para. 32. See OR Docs 204, para. 668; the statement by the Chairman of the Drafting Committee, Yasseen, OR 1968 CoW 487, para. 55 (“neither the Committee of the Whole nor the Drafting Committee had made any change”). In fact, a minor change was made: Article 73 of the ILC Draft Report spoke in the opening sentence of “the present articles”, whereas Article 78 speaks of “the present Convention”. The ILC Draft 1966 is at YBILC 1966 II 270 f.
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B. INTERPRETATION OF ARTICLE 78
1. Scope
2The terms may loosely be distinguished as follows: communication indicates the process of exchanging information, whereas notification indicates the formality through which a State undertakes the communication.5 Article 78 concerns all notifications or communications occurring during a treaty’s life, such as establishing a State’s consent to be bound by the treaty, making reservations or objections, thereto and giving notice regarding invalidity or termination. It lays down the point of time at which a notification or communication may be considered as having been accomplished by the State making it—and as being operative with respect to the State for which it was intended.6 As such, Article 78 distinguishes three stages: (i) the transmittal of notifications or communications to the addressee (para. [a], N. 6); (ii) the point in time at which they are to be regarded as having been made (para. [b], N. 7); and (iii) the time at which they shall be considered as having been received and being operative (paras. [b] and [c], N. 8–11).7
Article 78 does not deal with the situation where a State refuses to receive a notification or communication.8 In such a situation the act cannot be considered as having been made.
3Article 78 concerns any notification or communication (or similar act, even if it is not so named)9 to be made by a State under the present Convention. Mention in the Convention expressis verbis can be found, inter alia, as follows:
Notification
–a State notifying other contracting States or the depositaries on the exchange or deposit of instruments of ratification, acceptance, approval or accession (Article 16, para. [c], N. 7);10
–a State having been notified of a reservation by another State (Article 20, para. 5, N. 17);
5 T he word “or” in “notification or communication” is intended cumulatively (rather than alternatively), i.e., one does not exclude the other.
6 ILC Report 1966, YBILC 1966 II 270, paras. 2 f.
7Statement in the ILC by Waldock, YBILC 1966 I/2 134, paras. 3 f. See, e.g., Article 20, para. 5 (q.v., N. 17), as to the time-limit for a State for filing an objection after having
been notified thereof; also Aust, Modern Treaty Law 334. 8 Waldock in the ILC, ibid.
9For instance, the conveyance of information by depositaries is occasionally referred to in di erent terms; see Article 77, subparas. 1(b) (q.v., N. 6) (“transmitting”); 1(d) (q.v., N. 8) (“bringing the matter to the attention of the State in question”); and 1(e) (q.v.,
N. 9) (“informing”). 10 But see N. 5 below.
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notifications and communications
951
–a State having been notified of the withdrawal of a reservation or an objection thereto (Article 22, subparas. 3[a] and [b], N. 8–9);
–a State notifying other parties of its intention to conclude an agreement temporarily and inter se to suspend the operation of provisions of the treaty (Article 58, para. 2, N. 7);
–a State notifying other parties of a defect in a State’s consent to be bound by a treaty or a ground for impeaching the validity of a treaty, terminating it, withdrawing from it, or suspending its operation; the notification shall include the concomitant measure proposed (Article 65, paras. 1 and 5, N. 12–13 and 23); Article 67 (q.v., N. 2) provides further details as to such notifications, and Article 68 (q.v.) on their revocation;
–a depositary notifying signatory and contracting States of an error in the treaty (Article 79, para. 2, N. 11).
Communication
–a State communicating a reservation to the contracting States and other States entitled to become parties to the treaty, or the acceptance of a reservation or an objection to a reservation (Article 23, para. 1, N. 3);
–a State communicating the instrument by which it carries out the measure proposed in Article 65, para. 1, (Article 67, para. 2, N. 4–6);
–a depositary communicating to the treaty parties and to the States entitled to become parties to the treaty the procès-verbalcontaining the rectification of the erroneous treaty text; or, conversely, communicating to the signatory and contracting States any objection which has been raised against a proposed correction of an error; and finally communicating to the signatory and contracting States a procès-verbalcontaining a rectification of the certified copy of a treaty (Article 79, subparas. 2(a) and (b) and para. 6, N. 12–13, 17).
Article 78 does not specify in what form notifications and communications
4
shall be made. By comparison, Article 67, para. 1 (q.v., N. 3) stipulates that
notification according to Article 65, para. 1 must be in writing. This permits
the conclusion that Article 78 leaves open which form is to be employed.
In practice notifications and communications are mostly made in writing.
Exceptionally—e.g., among the parties to a bilateral treaty—they may be
made orally.
2. Residuary Nature
The various rules in Article 78 shall apply except as the treaty or the present
5
Convention otherwise provide. Thus, Article 78 contains a double residuary
exception: (i) a treaty may contain di ering provisions regulating the mak-
ing of any notifications or communications required under its clauses. Any
such provisions will prevail over Article 78 whereupon the procedure to be
followed is a matter of the interpretation and application of that treaty; and
(ii) the Convention itself contains provisions where the e ects of notification and communication may di er from those stipulated in Article 78, namely in
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Articles 16 (q.v., N. 9) and 24 (q.v.).11 Notification in these provisions is not a substantive part of the transaction by which the depositing State establishes treaty relations with other States.12
As the Court held in the Land and Maritime Boundary (Cameroon/Nigeria) Case, “Article 78 . . . does not govern the conditions in which a State expresses its consent to be bound by a treaty and those under which a treaty comes into force, those questions being governed by Articles 16 and 24 of the [1969 Vienna] Convention. . . . [T]he deposit of instruments of ratification, acceptance, approval or accession to a treaty establishes the consent of a State to be bound by a treaty; the treaty enters into force as regards that State on the day of the deposit”.13
3. Transmittal to the Addressee (Para. [a])
6Para. (a) explains to whom a notification or communication shall be sent. Thus, if there is no depositary, the act is to be transmitted direct to the State for which it is intended; or if there is a depositary, it is to be transmitted to the latter whose function under Article 77, subpara. 1(e) will be to inform the other States of the notification or communication (N. 10).14
4. Accomplishment (Paras. [b] and [c])
7Paras. (b) and (c) concern the accomplishment of a notification or communication, i.e., the point in time when the act can be considered as having been “made” and, therefore, as being legally in operation with regard to both the sending and the receiving State. Paras. (b) and (c) address separately the di ering points of view and interests of the parties involved in the chain of events of sending and receiving the notifications and communications. In particular, there is a danger that the intended recipients may be unaware of any communication underway and may take action which they would not otherwise have done.15
Paras. (b) and (c) do not explain how the intended recipient will confirm receipt. Since no form is prescribed for notification or communication, it can be assumed that receipt, too, may be made either in writing (which will be the rule) or orally.
a) Sending the Act (Para. [b])
8Para. (b) addresses the point of view of the sending State. In particular, any notification or communication shall be considered as having been made by the State in question only upon its receipt by the State to which it was
11ILC Report 1966, YBILC 1966 II 270, para. 2.
12Aust, Modern Treaty Law 334.
13ICJ Reports 1998 293 f, para. 31.
14ILC Report 1966, YBILC 1966 II 270, para. 2.
15See the statements in the ILC by Waldock, YBILC 1966 I/2 139, para. 66; and Lachs,
ibid. 137 f, para. 44.
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953
transmitted or, as the case may be, upon its receipt by the depositary. In
other words, once the notifying State has transmitted its notification or com-
munication, e.g., an objection to a reservation, and the latter has reached either
the other State or the depositary, the notifying State can do no more.16
b) Receiving the Act (Paras. [b] and [c])
The matter must also be seen from the point of view of the receiving State
9
whose good faith is to be protected. In particular, the question arises when
notifications or communications can be considered as having been received
and, therefore, as becoming operative. When they are sent directly to the
other State or States, they will be considered as having been accomplished
upon their receipt by the other State or States.17 This is stated in the first
part of para. (b) (N. 8).
Para. (c) concerns the rather di cult issue at what point in time notifications
10
or communications can be considered as having been sent to other States via
the depositary of the treaty. Here, Article 78 assumes that the depositary’s
function is no more than that of a “convenient mechanism”,18 not a represen-
tative of the receiving State.19 Thus, receipt by the depositary of a notification
or communication is not regarded automatically as also constituting receipt
by every State for which it is intended. Rather, the act is only accomplished
once it has been received by the other State or States.20 Accordingly, para.
(c) provides that any notification or communication, if transmitted to a
depositary, shall be considered as received by the State for which it was
intended only when the latter State has been informed by the depositary
in accordance with Article 77, subpara. 1 (e) (q.v., N. 9). In other words,
if the depositary lacks diligence and does not forward the notification or
communication, Article 78 protects the good faith of the intended recipient
State which remains una ected.
Inevitably, there will be an interval before the notification or communication
11
is received by the intended recipient, since it will have to be retransmitted by
the depositary. Article 78 does not regulate this period of time during which
a notifi cation or communication cannot have any legal e ects. Delicate
questions may arise as to the mutual rights and obligations of the parties. Generally, this period of time is governed by good faith.21
16See Ago in the ILC, ibid. 135, paras. 11 f; ILC Report 1966, YBILC 1966 II 271, para. 6.
17ILC Report 1966, ibid. 270, para. 3.
18Ibid. 270 f, para. 4.
19See the statement in the ILC by its Chairman, Yasseen, YBILC 1966 I/2, 136, para. 7.
20ILC Report 1966, YBILC 1966 II 270 f, para. 4; statement in the ILC by Tunkin, YBILC 1966 I/2 136, para. 22. For an exception, see Article 22, N. 9.
21ILC Report 1966, ibid. 271, para. 5ZACHARIAS.
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C. CONTEXT
1. Relationship to Other Provisions
12Article 78 provides further details as to the profile and the functions of the depositary and thus complements Articles 76 and 77, in particular Article 77, subpara. 1(e) (q.v., N. 9) which is expressly mentioned in para. (c) (N. 10).
2.Matters Not Dealt With
13Article 78 does not deal with the following issues: (i) how is the intended recipient to confirm receipt (N. 7); (ii) what is the situation, if the intended recipient refuses to confirm receipt (N. 2); and (iii) how are the parties’ rights and obligations to be assessed in the interval after notifications or communications have been sent, but before they have been received (N. 11).
3.Customary Basis of Article 78
14The travaux préparatoires disclose that the ILC most likely codified existing customary law in para. (a),22 whereas paras. (b) and (c) introduced novel elements.23 The various rules are based on good faith and were not called into question by the Court in the Land and Maritime Boundary Case (N. 5). Today it can be assumed that the entire article has hardened into a customary rule.
D. APPRECIATION
15Article 78 appears quite technical, though in fact it reflects principles of good faith. The rules in paras. (a)–(c) settle a number of issues which were not regulated previously in such detail in international law. The clarity gained appears important in view of the many notifications and communications which are made during a treaty’s life.24 Article 78 is special in that it reserves not only the position of rules in other treaties, but also of di ering rules in the Convention itself (N. 5).
22Ibid. 270, para. 2.
23See the statements in the ILC by Waldock, YBILC 1966 I/2 338, para. 43 (“progres-
sive provision, given the prevailing uncertainty over the exact position of depositaries in the matter of notifications and communications”); and Tusuroka, ibid. 139, para. 73 (“international custom was not clear on the point”).
24See the statement in the ILC by its Chairman, Yasseen, YBILC 1966 I/2, 277, para. 36.
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Article 79
Correction of errors in texts or in certified copies of treaties
1.Where, after the authentication of the text of a treaty, the signatory States and the contracting States are agreed that it contains an error, the error shall, unless they decide upon some other means of correction, be corrected:
(a)by having the appropriate correction made in the text and causing the correction to be initialled by duly authorised representatives;
(b)by executing or exchanging an instrument or instruments setting out the correction which it has been agreed to make; or
(c)by executing a corrected text of the whole treaty by the same procedure as in the case of the original text.
2.Where the treaty is one for which there is a depositary, the latter shall notify the signatory States and the contracting States of the error and of the proposal to correct it and shall specify an appropriate time-limit within which objection to the proposed correction may be raised. If, on the expiry of the time-limit:
(a)no objection has been raised, the depositary shall make and initial the correction in the text and shall execute a procés-verbalof the rectification of the text and communicate a copy of it to the parties and to the States entitled to become parties to the treaty;
(b)an objection has been raised, the depositary shall communicate the objection to the signatory States and to the contracting States.
3.The rules in paragraphs 1 and 2 apply also where the text has been authenticated in two or more languages and it appears that there is a lack of concordance which the signatory States and the contracting States agree should be corrected.
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4.The corrected text replaces the defective text ab initio, unless the signatory States and the contracting States otherwise decide.
5.The correction of the text of a treaty that has been registered shall be notified to the Secretariat of the United Nations.
6.Where an error is discovered in a certified copy of a treaty, the depositary shall execute a procés-verbalspecifying the rectification and communicate a copy of it to the signatory States and to the contracting States.
Article 79 Correction des erreurs dans les textes ou les copies certifiées conformes des traités
1.Si, après l’authentification du texte d’un traité, les Etats signataires et les Etats contractants constatent d’un commun accord que ce texte contient une erreur, il est procédé à la correction de l’erreur par l’un des moyens énumérés ci-après, à moins que lesdits Etats ne décident d’un autre mode de correction:
a)correction du texte dans le sens approprié et paraphe de la correction par des représentants dûment habilités;
b)établissement d’un instrument ou échange d’instruments où se trouve consignée la correction qu’il a été convenu d’apporter au texte;
c)établissement d’un texte corrigé de l’ensemble du traité suivant la procédure utilisée pour le texte originaire.
2.Lorsqu’il s’agit d’un traité pour lequel il existe un dépositaire, celui-ci notifie aux Etats signataires et aux Etats contractants l’erreur et la proposition de la corriger et spécifie un délai approprié dans lequel objection peut être faite à la correction proposée. Si, à l’expiration du délai:
a)aucune objection n’a été faite, le dépositaire e ectue et paraphe la correction dans le texte, dresse un procès-verbal de rectification du texte et en communique copie aux parties au traité et aux Etats ayant qualité pour le devenir;
b)une objection a été faite, le dépositaire communique l’objection aux Etats signataires et aux Etats contractants.
3.Les règles énoncées aux par. 1 et 2 s’appliquent également lorsque le texte a été authentifié en deux ou plusieurs langues et qu’apparaît un défaut de concordance qui, de l’accord des Etats signataires et des Etats contractants, doit être corrigé.
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correction of errors in texts or in certified copies of treaties 957
4.Le texte corrigé remplace ab initio le texte défectueux, à moins que les Etats signataires et les Etats contractants n’en décident autrement.
5.La correction du texte d’un traité qui a été enregistré est notifiée au Secrétariat de l’Organisation des Nations Unies.
6.Lorsqu’une erreur est relevée dans une copie certifiée conforme d’un traité, le dépositaire dresse un procès-verbal de rectification et en communique copie aux Etats signataires et aux Etats contractants.
Artikel 79 Berichtigung von Fehlern im Text oder in den beglaubigten Abschriften von Verträgen
1.Kommen die Unterzeichnerstaaten und die Vertragsstaaten nach Festlegung des authentischen Textes eines Vertrags übereinstimmend zu der Ansicht, dass er einen Fehler enthält, so wird dieser, sofern die genannten Staaten nicht ein anderes Verfahren zur Berichtigung beschliessen, wie folgt berichtigt:
a)Der Text wird entsprechend berichtigt und die Berichtigung von gehörig ermächtigten Vertretern paraphiert;
b)über die vereinbarte Berichtigung wird eine Urkunde errichtet oder werden mehrere Urkunden ausgetauscht oder
c)ein berichtigter Text des gesamten Vertrags wird nach demselben Verfahren hergestellt wie der ursprüngliche Text.
2.Ist für einen Vertrag ein Verwahrer vorhanden, so notifiziert dieser den Unterzeichnerstaaten und den Vertragsstaaten den Fehler und den Berichtigungsvorschlag und setzt eine angemessene Frist, innerhalb welcher Einspruch gegen die vorgeschlagene Berichtigung erhoben werden kann. Ist nach Ablauf dieser Frist
a)kein Einspruch erhoben worden, so nimmt der Verwahrer die Berichtigung am Text vor und paraphiert sie; ferner fertigt er eine Niederschrift über die Berichtigung an und übermittelt von dieser je eine Abschrift den Vertragsparteien und den Staaten, die berechtigt sind, Vertragsparteien zu werden;
b)Einspruch erhoben worden, so teilt der Verwahrer den Unterzeichnerstaaten und den Vertragsstaaten den Einspruch mit.
3.Die Absätze 1 und 2 finden auch Anwendung, wenn der Text in zwei oder mehr Sprachen als authentisch festgelegt wurde und sich ein Mangel an Übereinstimmung herausstellt, der nach einhelliger Au assung der Unterzeichnerstaaten und der Vertragsstaaten behoben werden soll.
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4.Der berichtigte Text tritt ab initio an die Stelle des mangelhaften Textes, sofern die Unterzeichnerstaaten und die Vertragsstaaten nichts anderes beschliessen.
5.Die Berichtigung des Textes eines registrierten Vertrags ist dem Sekretariat der Vereinten Nationen zu notifizieren.
6.Wird in einer beglaubigten Abschrift eines Vertrags ein Fehler festgestellt, so fertigt der Verwahrer eine Niederschrift über die Berichtigung an und übermittelt den Unterzeichnerstaaten und den Vertragsstaaten von dieser je eine Abschrift.
ILC Draft 1966
Article 74—Correction of Errors in Texts or in Certified Copies of Treaties
1.Where, after the authentication of the text of a treaty, the contracting States are agreed that it contains an error, the error shall, unless they decide upon some other means of correction, be corrected:
(a)by having the appropriate correction made in the text and causing the correction to be initialled by duly authorised representatives;
(b)by executing or exchanging a separate instrument setting out the correction which it has been agreed to make; or
(c)by executing a corrected text of the whole treaty by the same procedure as in the case of the original text.
2.Where the treaty is one for which there is a depositary, the latter:
(a)shall notify the contracting States of the error and of the proposal to correct it if no objection is raised within a specified time-limit;
(b)if on the expiry of the time-limit no objection has been raised, shall make and initial the correction in the text and shall execute a procés-verbalof the rectification of the text, and communicate a copy of it to the contracting States;
(c)if an objection has been raised to the proposed correction, shall communicate the objection to the other contracting States.
3.The rules in paragraphs 1 and 2 apply also where the text has been authenticated in two or more languages and it appears that there is a lack of concordance which the contracting States agree should be corrected.
4.(a) The corrected text replaces the defective text ab initio, unless the contracting States otherwise decide;
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(b)The correction of the text of a treaty that has been registered shall be notified to the Secretariat of the United Nations.
5.Where an error is discovered in a certified copy of a treaty, the depositary shall execute a procés-verbalspecifying the rectification and communicate a copy of it to the contracting States.
Materials:
WALDOCK Report I: Articles 24 f.
Minutes: YBILC 1962 I 182 , 212 , 217 f, 259 f, 277 f.
ILC Draft 1962: Articles 26 f.
WALDOCK Report IV: Articles 26 f.
Minutes: YBILC 1965 I 185 , 276 f.
ILC Draft 1965: Articles 26 f.
Minutes: YBILC 1966 I/2 293, 295, 334 f, 337 f.
ILC Draft 1966: Article 74.
Minutes: OR 1968 CoW 468 f, 487; OR 1969 Plenary 130, 132.
Vienna Conference Vote: 105:0:0
Selected Literature (in addition to the literature mentioned in Article 76, q.v.):
R. Kolb, Article 79, in: Corten/Klein (eds.) 2781 .
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CONTENTS
Paras.
A. Background ........................................................................................
E ects of the Corrected Text (Para. 4) ..............................................
15
6.
Notification to the UN Secretariat (Para. 5) .....................................
16
7.
Errors in Certified Copies of the Treaty (Para. 6) ..............................
17
C. Context ..............................................................................................
18
1.
Relationship to Other Provisions .....................................................
18
2.
Customary Basis of Article 79 ..........................................................
19
D. Appreciation ......................................................................................
20
A. BACKGROUND
1. Introduction
1 Pre-1969 State practice on the topic was sparse.1 From the few instances available, it transpires that, in order to correct an error in a treaty, consent of all States for which the treaty was signed was required.2 For the rest, treaty parties themselves were free to choose the concomitant procedures.3
1 T he Harvard Draft of 1935 did not mention the topic, AJIL 29 (1935) Supplement 657 . On the subject, see also Oraison, Erreur 47 ; Elias, RC 134 (1971 III) 368 .
2 See the materials in Hackworth, Digest, vol V, 93 . These materials provided the basis for Articles 24 f of Waldock Report I, YBILC 1962 II 80, para. 1 (N. 2).
3 Tunkin in the ILC, YBILC 1962 I 184, para. 82.
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2.
History
Up until 1962 the ILC Rapporteurs did not deal with the subject. Waldock
2
Report I took up the topic and divided it into two provisions: one on error
in a treaty where there was a depositary, and one where there was not.4 In
1962 the ILC discussed which types of errors should fall under the provision,
which methods should be employed to rectify them, and what the e ects
of the correction of texts should be.5 The ILC Draft 1962 was criticised as
being too detailed.6 In 1965 it was proposed to deal with the entire matter
in a single provision.7 Further debate concerned the delimitation between
the correction of errors and Article 48, para. 3 (q.v., N. 12), and which States
should be included in the procedures concerning error.8 The single Article
74 of the ILC Draft 1966, after undergoing further changes, was adopted in
Vienna by 105 votes to none.9
B. INTERPRETATION OF ARTICLE 79
1.
Scope
a)
Notion of Error
The purpose of Article 79 is to indicate the procedure in the event of discover-
3
ing an error in the treaty so as to correct (rectify) the o ending text.10 However,
4
Articles 24 f, YBILC 1962 II 80 .
5
See, e.g., statements by Yasseen, YBILC 1962 I 183, para. 70 (“the article should be
broadened so as to provide for the correction not only of typographical errors or omissions
but also of errors of substance”); Bartos, ibid. 213, para. 17 (“no retroactive e ect”). See
also Article 10 of Waldock Report I, YBILC 1962 II 50 on Errors in Expression of the
Agreement which later became Article 48, para. 3 (q.v., N. 12). Articles 26 f of the ILC
Draft 1962 are reproduced at YBILC 1962 II 183 .
6See the observation by the Japanese Government to the ILC, reproduced in Waldock Report IV, YBILC 1965 II 60. The revised single Article 26 was adopted by the ILC by 16
votes to none, YBILC 1965 I 277, para. 14, and is reproduced at YBILC 1965 II 163.
See the statements by Ago, Jiménez de Aréchaga, Reuter,Tunkin, Bartos (Chairman),
Yasseen, Pal, and Waldock, YBILC 1965 I 188 f. For the discussion generally in 1965,
see YBILC 1965 I 185 , and 276 f; in 1966, see YBILC 1966 I/2 293, 295, 334 f, and
337 f.
9OR 1969 Plenary 132, para. 32. The US amendment proposed replacing “contracting States” with the words “signatory [States] and contracting States”, OR Documents 205, subpara. 676(i); the Austrian amendment proposed adding to the entering sentence of para. 2: “shall specify an appropriate time-limit within which objection may be made”, ibid. subpara. 676(iii); both amendments were adopted at OR 1968 CoW 469, para. 79. A further change in subpara. 1(b) was the use of “an instrument or instruments” instead
of “separate instrument”. The ILC Report 1966 is at YBILC 1966 II 272 f. 10 ILC Report 1966, YBILC 1966 II 272, para. 3.
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the notion of error is not explained (other than that the error occurs before authentication of the treaty text, N. 10), though Article 48, para. 3 (error as a ground for invalidating a treaty; q.v., N. 12) indicates that an error may relate to the “wording of the text of a treaty”, thus also raising a question as to the delimitation between the two provisions (N. 6).
4Three types of error are usually distinguished: (i) physical error in typing, printing, spelling, punctuation, numbering, cross-referencing, omitting or including a negative (e.g., “not” or “no”), etc.; (ii) a lack of conformity of the original of the treaty with the o cial records of the diplomatic conference which adopted the treaty; and (iii) a lack of concordance (also among di erent languages) between the di erent authentic texts constituting the original of the treaty.11 In multilateral treaties errors are on the increase on account of the often lengthy texts and the time-pressure under which treaties are often prepared.12 Logically errors can only arise before authentication of the text.
Examples of errors: Attachments to the Comprehensive Nuclear Test Ban Treaty of 1996 incorrectly stated the location and names of some monitoring stations, and in some cases the location itself had proved to be unsuitable.13 In its Article 35, para. 1, the European Convention for the Peaceful Settlement of Disputes of 1957 erroneously referred to “clearly specified special matters” instead of “clearly specified subject-matters”.14The Agreement on the Settlement of Pre-War Debts between Yugoslavia and France of 1958 referred to US Dollars where then French Francs had been intended.15 In an Annex to one the Agreements Concerning Minor Frontier Tra c between Yugoslavia and Italy of 1949, the list of the communes excluded from that tra c had erroneously been substituted for a list of those between which tra c was allowed.16 In the Warsaw Convention for the Unification of Certain Rules Relating to International Carriage by Air of 1929 the French word “transporteur” had been confused with “expéditeur”.17
5The open formulation of the word “error” in Article 79 (N. 2) permits the conclusion that it aims at including all types of errors.18 Indeed, it appears di cult to distinguish, for example, between “formal” and “substantial” errors concerning merely its text or the content, respectively, since even “minor” typographical errors, e.g., of punctuation, may have far reaching e ects on the substance of a treaty provision.19
11United Nations, Summary of Practice 12 f, N. 48. Aust, Modern Treaty Law 335; statement in the ILC by Bartos, YBILC 1962 I 183, para. 65.
12Aust, ibid. 336.
13Ibid.
14Blix/Emerson 253.
15See the statement in the ILC by Bartos, YBILC 1962 I 183, para. 65.
16Ibid.
17Schulte-Beerbühl, Irrtum 53 f; Lachs in the ILC, YBILC 1962 I 183, para. 64.
18Statements in the ILC b y Pal, YBILC 1965 I 189, para. 47; and Lachs, YBILC 1962 I 184, para. 80.
19ILC Report 1966, YBILC 1966 II 272, para. 1 (“the correction may a ect the substantive meaning of the text”); Aust, Modern Treaty Law 335.
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b) Role of Agreement
It appears unnecessary to specify the types of error falling within the scope of
6
Article 79 (N. 5),20 since its applicability—and its delimitation from Article
48—depends on another criterion, namely on whether States are agreed
that the treaty text contains an error. Article 79 solely concerns cases where
there is no dispute as to the existence of an error or inconsistency and as to
the procedures to be followed. If States disagree, the error is considered as
a ecting the validity of the treaty and shall be examined according to Article
48.21 The agreement required for the applicability of Article 79 obviously has
a contractual implication and can be reached through any particular means,
i.e., written or oral and even impliedly tacit conduct.22
Of course, States will find the required agreement to proceed along the lines of Article
79 more easily in respect of formal rather than of substantive errors. Still, Article 48,
para. 3 (q.v., N. 12), referring to errors in the “wording of the text of a treaty” (N. 3),
appears imprecise, since even typographical errors fall outside Article 79, if States can-
not agree on them.
In fact, agreement as the distinguishing criterion between Articles 48 and 79 appears
eminently practical. The dispute settlement in Articles 65–69(which follow Article 48,
N. 9) is intended precisely to settle di erences in agreement, whereas the straightforward
procedures in Article 79 clearly presuppose consensus. Still, Article 79 also contains a
trap in that a State may against the will of the other signatory and contracting States
declare the treaty to be inaccurate, using this as a pretext for not accepting the treaty
(N. 13).23
c) States Involved in the Procedures
Article 79 involves both signatory States and contracting States in its proce-
7
dures.24 The former have by means of their signature provisionally indicated
their intention to be bound by the treaty (signature subject to ratification;
Article 11, N. 7); the latter have consented to be bound by the treaty, whether or not the treaty has entered into force (Article 2, subpara. 1[f], N. 45). It is these States which need to agree that Article 79 is applicable; they will be
20Statement in the ILC by Ago, YBILC 1965 I 189, para. 39.
21ILC Report 1966, YBILC 1966 II 272, para. 1 (“if there is a dispute as to whether or not the alleged error or inconsistency is in fact such, the question is not one simply of correction of the text but becomes a problem of mistake which falls under Article [48]. The present Article [sc. 79] only concerns cases where there is no dispute as to the existence of the error”); see the statements in the ILC by Jiménez de Aréchaga, YBILC 1965 I 188, para. 27 (“all the parties had to agree”); and Ago, ibid. (“the essential point was that Article [79] covered errors which States were prepared to correct”).
22See the statement in the ILC by Tunkin, YBILC 1962 I 183, para. 63 (“exchange of notes between the parties”).
23Waldock in the ILC, YBILC 1962 I 213, para. 20.
24Article 74 of the ILC Draft 1966 only referred to contracting States (N. 1), considering that only the latter had a “right” to a voice in any decision regarding a correction, YBILC 1966 II 273, para. 7.
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notified by the depositary of any error as well as of any objection; they shall receive any rectified certified copy of the treaty; and they may decide on alternative procedures (N. 6–17). Interestingly, subpara. 2(a) envisages that the depositary shall communicate a copy of the procès-verbalof rectification not only to the signatory and contracting States but also to the States entitled to become parties to the treaty (N. 12); the latter will after all be interested in the new and corrected treaty text to which they may eventually adhere.25 Finally, it follows from all this that paras. 1 and 2 of Article 79 apply even if the treaty is not yet in force.26
It seems natural that a signatory State is involved in these proceedings since it has bound itself according to Article 18, para. (a) (q.v., N. 15) and must, therefore, be allowed to express an opinion on proposed corrections to a text which is, possibly, in the process of being incorporated in its domestic law.27
d) Discovering the Error
8Article 79 does not state who will detect the error.28 It may go unnoticed by the depositary in the case of a multilateral treaty and be discovered by a signatory or contracting State or even a third State or an individual, e.g., in a learned article. It would indeed be futile to try to define who could, and who could not, discover the error.29 In the case of a multilateral treaty, once the depositary has been alerted to the error, it is his duty to initiate the procedure under para. 2 (N. 11).
e) Residuary Nature
9The Convention provisions are generally of a residuary nature (only rules jus cogens may not be altered; Article 53, N. 6), and it is therefore unnecessary to provide in individual articles that States “can decide otherwise”. For this reason, Article 79 essentially leaves it to States to agree on how to proceed in case of error.30 This possibility is expressly mentioned on various occasions in Article 79 (“unless they decide”). However, its provisions remain residuary
25Statement in Vienna by the Australian delegation, OR 1968 CoW 469, para. 77.
26Aust, Modern Treaty Law 336 f.
27United Nations, Summary of Practice 14, N. 54. See also the statement in Vienna by the US delegation, OR 1968 CoW 469, para. 72. In practice, the UN Secretary General as depositary will communicate proposed corrections to all States which participated in the elaboration of the treaty (N. 10), even though only the signatory and contracting States have the right to object, United Nations, ibid. N. 51; Aust, Modern Treaty Law 337.
28Waldock Report IV, YBILC 1965 II 62, para. 1 (“the language . . . is completely neutral as to who discovers or draws attention to the error or lack of concordance in the text”); statement in the ILC by Bartos, YBILC 1962 I 218, para. 2.
29But see the observation by the Bolivian Government to the ILC, Waldock Report IV, YBILC 1965 II 61 (“the article . . . does not provide for cases where the error goes unnoticed by the depositary but is pointed out by a State”).
30ILC Report 1966, YBILC 1966 II 272, para. 3.
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even where, as in para. 2, no reference to an alternative decision is made.31 Still, Article 79 (and all other Convention provisions) are more than a mere “guide” to State practice: Where States have not decided otherwise, the procedures enshrined in Article 79 are binding upon them.32
For instance, the General Assembly of the OAS has issued a Resolution on the Procedure for Correcting Errors in Treaties or Conventions for Which the Organization of American States is Depositary,33
The terminology in Article 79 distinguishes between where States agree, i.e., in respect of the error (N. 6) and the means of its correction, on the one hand (e.g., the opening sentence of para. 1; subpara. 1(b); and para. 3); and where States decide otherwise, i.e., on alternate means of procedure on the agreed error, on the other (e.g., the opening sentence of para 1; and para. 4).
2. Errors in Treaties With No Depositary (Para. 1)
Para. 1 concerns the case of the correction of a treaty text with no depositary. It 10 provides that, where, after the authentication of the text of a treaty (Article
10, q.v.), the signatory States and the contracting States are agreed that it contains an error (N. 6), the error shall, unless they decide upon some other means of correction (N. 9), be corrected according to one of three methods listed in subparas. 1(a)–(c), i.e.,
(a) by having the appropriate correction made in the text and causing the correction to be initialled by duly authorised representatives;
(b)by executing or exchanging an instrument or instruments setting out the correction which it has been agreed to make; or
(c)by executing a corrected text of the whole treaty by the same procedure as in the case of the original text.
In practice, the regular methods appear to be those in subparas. 1(a) and (b ). Subpara. 1(c) would be called for where a whole series of errors transpires and States wish to start afresh with a new, revised text.34
31Contra Aust, Modern Treaty Law 337 (“[p]aragraph 2 . . . does not lay down a residuary rule”).
32See the firm reply in Waldock Report IV, YBILC 1965 II 61, para. 1, to the suggestions by the Governments of the US and Sweden according to which Article 79, respectively, “served a useful purpose as a guide” and amounted to “recommended practices”, ibid. 60.
33Resolution 1484 (XXVII-O/97) of 5 June 1997.
34ILC Report 1966, YBILC 1966 II 272, para. 3. On treaty practice in this respect, see Aust, Modern Treaty Law 336, with reference to an appendix.
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3. Errors in Treaties With a Depositary (Para. 2)
11Para. 2 concerns the case where the treaty is one for which there is a depositary (Articles 76–77, q.v.).35 Once the latter has found the error or has been alerted to it,36 it is his responsibility to notify the signatory States and the contracting States of the error and of the proposal to correct it.37 In the case of the UN Secretary-General acting as depositary, the proposed corrections (deletions, additions, rectifications, etc.) are sent to all States which participated in the Conference or the meeting adopting the treaty as well as all signatory and contracting States.38 Then, together with the notification, the depositary shall specify an appropriate time-limit within which objection to the proposed correction may be raised. The UN Secretary-General regularly fixes a time-limit of 90 days for objections, but may set a shorter one, if the errors were well known to the States.39
According to the practice of the UN Secretary-General as depositary, an objection received after the time-limit has elapsed will have no legal e ects. The parties will simply be informed of the receipt of the objection, which is characterised as a mere “communication” and not as an objection.40
12Once the error and the proposal to correct it have been notified (N. 11), para. 2 distinguishes between two situations, namely whether or not an objection has been filed against the proposed correction. According to subpara. 2(a), if, on the expiry of the time-limit no objection has been raised, the corrections are considered as having been adopted. The depositary shall then make and initial the correction in the text and shall execute a procès-verbalof the rectification of the text and communicate a copy of it to the parties and to the States entitled to become parties to the treaty (N. 7).41 The document will normally be dated as of the expiry of the time-limit.42
13In the converse situation, an objection is raised either because a State finds the proposed correction unjustified or because it considers the correction procedure inappropriate, e.g., if it objects to the time-limit for making its
35ILC Report 1966, ibid. para. 4.
36United Nations, Summary of Practice 13, N. 49 (“if in the depositary’s opinion the modification proposed does not seem wholly justified or is opened to dispute . . . the depositary shall endeavor to persuade, through consultations, the State which proposed the correction to withdraw its proposal”).
37Ibid.
38Ibid. N. 51.
39Ibid. N. 55 f. Aust, Modern Treaty Law 337.
40United Nations, Summary of Practice 14, N. 56.
41YBILC 1966 II 272, para., 4. For the examples of such procès-verbaux, see Blix/Emerson 251 . As to the modalities of communication, see Article 78.
42On this para., see United Nations, Summary of Practice 15, N. 59.
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position clear.43 Here, subpara. 2(b) provides that, if an objection has been raised, the depositary shall communicate the objection to the signatory States and to the contracting States. For the rest, Article 79 is silent on any consequences which such an objection may entail—a lacuna which did not go unnoticed in the ILC, one member fearing a right of “veto” of the objecting State (N. 6 i.f.).44 In practice, if an objection is filed, the depositary may undertake consultations between the parties.45 If these prove fruitless, States may consider the possibility of invoking error as a ground of invalidity according to Article 48 (N. 6) and follow the ensuing procedures of Articles 65–69(q.v.).
In this situation, the Resolution of the OAS General Assembly (N. 9) provides: “[i]f an objection has been raised . . ., the Secretary General shall communicate the objection or objections to the other parties to the treaty and to the other signatory States and shall invite them to present their observations or comments within30 days. Within the 15 days following expiry of that period, the Secretary General shall convene a special meeting, at which, if applicable, any decisions taken on corrections to be made in the texts in question will be conveyed to the Secretary General”.
Where an objection has been raised, the UN Summary of Practice resorts to a proposal made by de Luna in the ILC, namely that the dispute should be settled by the same majority as had been required for the adoption of the treaty.46 The di culty with this proposal is that such a procedure has not been written down, and that establishing an ad hoc procedure upon detection of an error may appear disproportionate and could indeed raise new problems. As Sir Humphrey Waldock stated in reply in the ILC, “[a] rule of the kind suggested [by de Luna] . . . would involve an elaborate process of notification and consultation”.47 Indeed, the point is precisely that, if there is an objection, the error becomes substantive; then, there is no agreement among the parties as to the correction, the treaty’s validity becomes topical, and Article 48 comes into play.
4.Lack of Concordance Among Di erent Authenticated Texts (Para. 3)
According to para. 3, the rules in paragraphs 1 and 2 apply also where 14 the text has been authenticated in two or more languages and it appears that there is a lack of concordance. As a condition, it is again required that
the signatory States and the contracting States agree that the discordance should be corrected (N. 6–7).48Here, a useful tool can be found in Article
43Ibid. N. 58.
44See the statement in the ILC by Castren, YBILC 1962 I 218, para. 4; and the reply thereto by Waldock, ibid. para. 6 (“[i]t would be wiser not to regulate the matter by an express provision but to leave it to be settled by consultation between the States”). The ILC Report 1966 is silent on the matter, YBILC 1966 II 272 f.
45United Nations, Summary of Practice N. 16, 61; Aust, Modern Law of Treaties 337.
46United Nations, ibid. N. 61 f, referring to YBILC 1962 I 218, para. 8.
47YBILC 1962 I 218, para. 9.
48ILC Report 1966, YBILC 1966 II 272, para. 5. On authentication, see Article 10 (q.v.).
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33, para. 3 (q.v., N. 10–13) on di erences of meaning in various authentic texts. In light thereof it would appear unlikely that States still need to resort to Article 48 (N. 6).49
What if translations of the authentic texts into other language versions of the treaty disclose an error? Article 79 is purposely silent on the matter as this is not an issue of errors in the authentic text of the treaty itself. As a rule, it would not appear di cult for States mutually to agree to modify the o ending translation without further formalities.50
5. E ects of the Corrected Text (Para. 4)
15Para. 4 provides that the corrected text replaces the defective text ab initio. The corrected text is thus deemed to operate retroactively ex tunc, i.e., from the date when the original text came into force: It “replaces” the original text in every respect.51 Thus it di ers from a treaty’s amendment, which takes e ect ex nunc (Article 39, N. 7).52 Indeed, refusing non-retroactive e ect would imply that the parties attribute to the correction a significance going beyond that of merely revealing their original intentions.53 (Still, the e ects do not retroact to the adoption of the original text, since that could complicate the position in situations where a faulty text has meanwhile been submitted by a State to its parliament for ratification.)54 However, the signatory States and the contracting States may at any time decide otherwise.
6.Notification to the UN Secretariat (Para. 5)
16In accordance with Article 80 (q.v., N. 7–8), para. 5 stipulates that the correction of the text of a treaty that has been registered shall be notified to the Secretariat of the United Nations.55
7.Errors in Certified Copies of the Treaty (Para. 6)
17Certified copies represent the text of the treaty in the hands of the individual States.56 Where an error is discovered in a certified copy of a treaty, the depositary shall execute a procès-verbalspecifying the rectification and
49But see Aust, Modern Treaty Law 337.
50ILC Report 1966, YBILC 1966 II 272, para. 5.
51Ibid. para. 6. See the statement in the ILC by Yasseen, YBILC 1962 I 213, para. 23 (“[a]
genuine correction should be intended to restore the provision which the parties originally had in mind”).
52Statement in the ILC by Waldock, YBILC 1962 I 184, para. 75.
53Statement by Yasseen, YBILC 1962 I 213, para. 23.
54Waldock Report I, YBILC 1962 II 80, para. 4.
55See the further explanations in ILC Report 1966, YBILC 1966 II 273, para. 8.
56Ibid. para. 9.
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communicate a copy of it to the signatory States and to the contracting States. The situation of certified copies thus di ers from discordances in authentic texts requiring the more detailed procedure of para. 3 (N. 14).57
C. CONTEXT
1. Relationship to Other Provisions
The relationship of Article 79 to various other provisions has been explained
18
above, namely in respect of Articles 33 (N. 14), 39, (N. 15) 48 (N. 6) and
80 (N. 16).
2. Customary Basis of Article 79
The basic principles enshrined in Article 79—the freedom of States to choose
19
the procedure in case of error (N. 9) and the e ects of a correction ab initio
(N. 15)58—appear well established in international law. Conversely, the
detailed procedures in the provision appeared innovatory when adopted by
the Conference in 1969. Given the unanimous support at the Conference
and the lack of contradiction thereafter, it can be assumed that Article 79 as
a whole now reflects customary law.
D. APPRECIATION
Without doubt, the rules and procedures enshrined in Article 79, while some-
20
what lengthy, are straightforward, practicable, and generally complete.59 The
surprising element is the distinguishing criterion between Articles 79 and 48
which does not immediately leap to the eye. The criterion is not the location
(e.g., “merely textual”) nor the type (e.g., “typographical”) or relevance (e.g.,
“minor”) of the error—but the agreement (or lack thereof) among States on
whether or not an error exists which should be corrected. Therefore, Article
48, para. 3 appears imprecise. (N. 6).
57Ibid.
58See the statement in the ILC by Rosenne, YBILC 1965 I 187, para. 15, in respect of para. 4
59Kearney/Dalton, AJIL 64 (1970) 560 (“simple and sensible rules for the prompt correction of . . . errors”).
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Article 80
Registration and publication of treaties
1.Treaties shall, after their entry into force, be transmitted to the Secretariat of the United Nations for registration or filing and recording, as the case may be, and for publication.
2.The designation of a depositary shall constitute authorisation for it to perform the acts specified in the preceding paragraph.
Article 80 Enregistrement et publication des traités
1.Après leur entrée en vigueur, les traités sont transmis au Secrétariat de l’Organisation des Nations Unies aux fins d’enregistrement ou de classement et inscription au répertoire, selon le cas, ainsi que de publication.
2.La désignation d’un dépositaire constitue autorisation pour celui-ci d’accomplir les actes visés au paragraphe précédent.
Artikel 80 Registrierung und Verö entlichung von Verträgen
1.Verträge werden nach ihrem Inkrafttreten dem Sekretariat der Vereinten Nationen zur Registrierung beziehungsweise Aufnahme in die Akten ( filing and recording) und zur Verö entlichung übermittelt.
2.Ist ein Verwahrer bestimmt, so gilt er als befugt, die in Absatz 1 genannten Handlungen vorzunehmen.
ILC Draft 1966
Article 79—Registration and Publication of Treaties
Treaties entered into by parties to the present articles shall as soon as possible be registered with the Secretariat of the United Nations. Their registration and publication shall be governed by the regulations adopted by the General Assembly of the United Nations.
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Materials:
WALDOCK Report I: Articles 22 f.
Minutes: YBILC 1962 I 180 , 212, 259, 291.
ILC Draft 1962: Article 25.
Waldock Report IV: Article 25.
Minutes: YBILC 1965 I 178 , 275 f.
ILC Draft 1965: Article 25.
Minutes: YBILC 1966 I/II 335, 338.
ILC Draft 1966: Article 75.
Minutes: OR 1968 CoW 469 , 487 f; OR 1969 Plenary 24.
Vienna Conference Vote: 105:0:0
Selected Literature:
D.N. Hutchinson, The Significance of the Registration or Non-Registration of an International Agreement in Determining Whether or Not it is a Treaty, BYBIL Current LP 46 (1993) 257 ; P. Klein, Article 80, in: Corten/Klein (eds.) 2819 ; R. Lillich, The Obligation to RegisterTreaties and International Agreements with the United Nations, AJIL 65 (1971) 771 ; M. Tabory, Recent Developments in United Nations Treaty Registration and Publication Practices, AJIL 76 (1982) 350 .
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CONTENTS
Paras.
A. Background .........................................................................................
History .............................................................................................
3
B. Interpretation of Article 80 .............................................................
5
1.
Article 102 of the UN Charter ..........................................................
5
2.
Transmittal to UN Secretariat (Para. 1) .............................................
7
3.
Role of Depositary (Para. 2) ..............................................................
9
C. Context ...........................................................................................….
10
1.
Relationship to Other Provisions .....................................................
10
2.
Matters Not Dealt With ...................................................................
11
3.
Customary Basis of Article 80 ...........................................................
12
D. Appreciation .......................................................................................
13
A. BACKGROUND
1. Introduction
1 By introducing the general obligation to register and publish treaties, Article 18 of the Covenant of the League of Nations departed from clandestine diplomacy and secret treaties and heralded a more unified international community.1 Based upon that provision, Article 102 of the UN Charter provides:
“1. [e]very treaty and every international agreement entered into by any Member of the United Nations after the present Charter comes into force shall as soon as possible be registered with the Secretariat and published by it.
2.No party to any such treaty or international agreement which has not been registered in accordance with the provisions of paragraph 1 of this Article may invoke that treaty or agreement before any organ of the United Nations”.2
1 Article 18 of the Covenant provided that “[e]very treaty or international engagement entered into hereafter by any Member of the League shall be forthwith registered with the Secretariat and shall as soon as possible be published by it. No such treaty or international engagement shall be binding until so registered”. See also the statements in the ILC by el Erian, YBILC 1965 I 179, para. 13, and Yasseen, ibid. 180, para. 26. On the subject generally, see R. Schwab, Die Registrierung der internationalen Verträge beim Völkerbund (1929); M. Brandon, The Validity of Non-Registered Treaties, BYBIL 29 (1952) 186 ; Rosenne, Developments 398 ; Id., United NationsTreaty Practice, RC 86 (1954 II) 281 ;
E.Boudet, L’enregistrement des accords internationaux, RGDIP 64 (1960) 596 .
2 Knapp/Martens, Article 102, in: Simma (ed.), Charter of the United Nations passim.
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The General Assembly gave e ect to Article 102 by enacting in its 1946
2
Resolution Regulations on the Registration and Publication of International
Agreements.3 While addressed primarily to the UN Secretariat, their inter-
pretation of Article 102 appears of general relevance.4
2. History
Brierly and Fitzmaurice did not deal with the subject, though the Lauter-
3
pacht Report I of 1953 referred to Article 102 of the UN Charter (N. 1).
In the ILC, Lauterpacht unsuccessfully proposed the far-reaching rule that “[a] treaty
concluded by a member of the United Nations shall be void if not registered with the
United Nations within six months of its entry into force”.5
Articles 22 and 23 of the Waldock Report I of 1962 reproduced the General
4
Assembly Regulations (N. 2) at length.6 The ILC Draft 1962 joined the two
provisions and shortened them, while referring to the situation of non-UN member States.7 The latter also occupied Governments in their observations to the ILC as well as the ILC itself in 1965.8 The ILC Draft 1966, now mainly reiterating para. 1 of Article 102 of the UN Charter, was considerably changed in Vienna following an amendment by the then Byelorussian SSR and a joint amendment by the US and Uruguay.9 Article 80 was adopted in 1969 without further debate by 105 votes to none.10
3GA Res 97(1) of 14 December 1946, as modified by resolutions 364 B (IV), 482 (V) and 33/141 A, adopted by the General Assembly on 1 December 1949, 12 December 1950 and 18 December 1978, respectively. The text is reproduced in Blix/Emerson 258 , and
in YBILC 1962 II 194 .
4 ILC Report 1966, YBILC 1966 II 274, para. 3; Liang in the ILC, YBILC 1962 I 181, para. 43.
5 YBILC 1953 II 162; see also Waldock Report I, YBILC 1962 II 72, para. 1.
6Article 22 on the Registration and Publication of Treaties, and Article 23 on the Procedure of Registration and Publication, YBILC 1962 II 71 ; see the statement by Waldock in
the ILC, YBILC 1962 I 180, para. 19.
7YBILC 1962 II 182 ; adopted at YBILC 1962 I 212, para. 10, and 259, para. 47; the debate is at YBILC 1962 I 180 , 212, 259, 291.
8Briggs in the ILC, YBILC 1965 I 180, para. 36; the debate is at YBILC 1965 I 178 , and 275 f; and at YBILC 1966 I/2 335, and 338. The ILC Draft 1965 is at YBILC 1965 II 162 f. The Government observations are at Waldock Report IV, YBILC 1965 II 58 .
9 OR Documents 206, para. 684. The debate is at OR 1968 CoW 469 , and 487 f. The
ILC Draft ist at YBILC 1966 II 273 f. 10 OR 1969 Plenary 132, para. 32.
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B. INTERPRETATION OF ARTICLE 80
1. Article 102 of the UN Charter
5Article 80 recalls the obligations concerning the registration and publication of treaties according to Article 102, para. 1 of the UN Charter (N. 1) and the Regulations adopted by the General Assembly (N. 2).11 As such, Article 80 emphasises the role of Article 102 and aims to consolidate the central system of registration within the UN.12 On the other hand, Article 80 is silent on the subject of sanctions upon non-registration, such as can be found in Article 102, para. 2.13 On the whole, Article 80 does not attempt to interpret Article 102.14
The discussion as to the scope of Article 102 of the UN Charter, in particular the interpretation of the terms “treaty and every international agreement” does not a ect Article 80.15 The notion of a “treaty” in Article 80 and generally under the Convention is defined in Article 2, subpara. 1(a) (q.v., N. 4–20), and the conditions of the validity of a treaty are those expounded in the Convention.16
6Article 80 goes further than Article 102 in that it requires all Convention parties, i.e., also non-Members of the UN, to transmit treaties to the UN.17 To the extent that Article 80 reflects a customary rule (N. 12), it also concerns non-Convention parties.
11ILC Report 1966, YBILC 1966 II 273, para. 1; Waldock Report I, YBILC 1962 II 72, para. 1; see the statement by the delegation of the then Byelorussian SSR in Vienna, OR 1968 CoW 470, para. 3. On the obligation to register under Article 102 and the ensuing procedure, see Knapp/Martens, Article 102, in: Simma (ed.), Charter of the United Nations N. 15 , N. 27.
12ILC Report 1966, ibid.; Delbrück/Wolfrum III 598.
13ILC Report 1966, ibid. 273 f, para. 2; Knapp/Martens, Article 102, in: Simma (ed.), Charter of the United Nations N. 43 ; also the Maritime Delimitation and Territorial Questions (Qatar/Bahrain) (Jurisdiction) Case, ICJ Reports 1994 122, para. 29 (“[n]onregistration or late registration . . . does not have any consequence for the actual validity of the agreement, which remains no less binding upon the parties”).
14See the statements in Vienna by the Uruguayan delegation, OR 1968 CoW 470, para. 8; and in the ILC by Waldock, YBILC 1965 I 182, para. 57.
15Knapp/Martens, Article 102, in: Simma (ed.), Charter of the United Nations N. 5 .
16See Fitzmaurice, BYBIL 73 (2002) 161 , and in particular the discussion in K. Widdows, What is an Agreement in International Law? BYBIL 50 (1979) 143; and Hutchinson, Current LP 46 (1993 II) 265 f.
17Aust, Modern Treaty Law 344; statement by the Italian delegation in Vienna, OR 1968 CoW 470, para. 7; the statement in the ILC by Waldock, YBILC 1965 I 276, para. 2; ILC Report 1966, YBILC 1966 II 273 f, para. 1; Waldock Report IV, YBILC 1965 II 59, para. 1 (“desirable . . . to equalise so far as possible the position of Members and nonmembers”).
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2. Transmittal to UN Secretariat (Para. 1)
Article 80 provides that treaties shall, after their entry into force (Article 24,
7
q.v., rather than upon their conclusion),18 be transmitted to the Secretariat
of the United Nations. Thus Article 80 does not repeat the exhortation in
Article 102, para. 1 of the UN Charter (and in the ILC Draft 1966)19 to do
so “as soon as possible”. This formulation leaves some scope for delays, though
of course, the sanction in Article 102, para. 1 of the UN Charter applies
independently. Good faith will also play a role here. The UN Secretariat acts
according to the Regulations of the UN General Assembly (N. 2).
The treaty is submitted to the UN Secretariat for registration or filing and
8
recording, as the case may be, and for publication. The term registration
applies to UN Members, filing and recording concerns non-members.20After
registration, treaties—among them the Convention (Article 82, N. 1)21—
are published in the United Nations Treaty Series (UNTS) and on the
internet.22
3. Role of Depositary (Para. 2)
Article 102 of the UN Charter does not state who is to transmit the treaty
9
for registration. Article 80 now usefully provides that the designation of a
depositary shall constitute authorisation for it to perform the acts specified in the preceding paragraph. By the very fact of being designated, the depositary must carry out this duty. Where the depositary fails to act, the responsibility falls on the States to do so individually.23
Until 1969 the UN Secretariat accepted registration by the depositary only when the latter had been expressly authorised to that e ect.24 Where an international organisa-
18Article 80 thus reflects the practice of States. See the statement in Vienna by the Chairman of the Drafting Committee, Yasseen, OR 1968 CoW 487, para. 58. Interestingly, the German text of the Convention repeats here the English terms in parentheses.
19YBILC 1966 II 273 f.
20Articles 10 f of the Regulations of the UN General Assembly (N. 2); ILC Report 1966, ibid. para. 1; Waldock, Report IV, YBILC 1965 II 60, para. 4; Aust, Modern Treaty Law 344. See the interpretation in Vienna by the Chairman of the Drafting Committee, Yasseen, of the terms “as the case may be”, OR 1968 CoW 487, para. 58 (“a treaty could not be transmitted at the same time for registration and for filing and recording”).
21UNTS 1155 (1979) 331 .
22Http:/untreaty.un.org (website visited on 1 March 2008); Knapp/Martens, Article 102, in: Simma (ed.), Charter of the United Nations N. 37 .
23Statements in Vienna by the delegations of the US, OR 1968 CoW 470, para. 5; Italy, ibid. para. 7; and Uruguay, ibid. para. 11; and by Yasseen, Chairman of the Drafting Committee, ibid. 488, para. 61.
24Knapp/Martens, Article 102, in: Simma (ed.), Charter of the United Nations N. 21.
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tion acted as depositary, it had first to obtain the agreement of all parties to be able to register the treaty.25
C. CONTEXT
1. Relationship to Other Provisions
10Para. 2 of Article 80 (N. 9) constitutes one of the depositary’s various functions according to Article 77, para. 1(h) (q.v., N. 12).26
2.Matters Not Dealt With
11Article 80 is silent on the matter of sanctions in case of non-registration (N. 5).
3.Customary Basis of Article 80
12Given the quasi-universal membership of the UN and the previous practice of non-members to register their treaties with the UN, Article 80 can safely be considered a rule of customary international law.27
D. APPRECIATION
13Rarely did a Convention provision change so much during its evolution (N. 3–4)—thus indicating the di culties of formulating the relationship between Article 80 and Article 102 of the UN Charter. Para. 1 of Article
80may appear banal, but it would be unthinkable to have a convention on the law of treaties which did not refer to the registration and publication of treaties.28 Para. 2 contains an important detail which complements Article
77(N. 9–10).
25Statement in Vienna by the US delegation, OR 1968 CoW 470, para. 4, regarding the OAS.
26See Yasseen in Vienna, ibid. (“no incompatibility” between Articles 77 and 80).
27Villiger, Manual N. 237 ; ILC Report 1966, YBILC 1966 II 273, para. 1; the statement in the ILC by Bartos, YBILC 1962 I 181, para. 43; Sh. Rosenne, More on the Depositary of Treaties, AJIL 64 (1970) 847 at n. 16 (“Article 80 . . . is couched in absolute terms and does not purport to be a stipulation binding only the parties to the present Convention”). But see Reuter, Introduction N. 116, who speaks of the “debatable e ectiveness” of Article 80 in extending the obligation to register to non-Member States of the UN.
28Waldock Report IV, YBILC 1965 II 59, para. 1, for whom omission of Article 80 “would appear somewhat strange”.
